How many times have you sat down and enjoyed a TV show that comedically comments on a current event or political issue? How about a song that takes a recognizable riff or bassline from another, and then proceeds to make a complete mockery of the original? These are known as “satires” and “parodies” respectively and, for better or for worse, these art forms use preexisting works and concepts to create new, often entertaining media—sometimes even for commercial consumption. Let’s touch on when this is okay, and when it’s not.

First, parodies are when the creator mimics something specific to make fun of or comment on it—often for entertainment or comedic purposes. Think Weird Al Yankovic songs and the Scary Movie franchise. The creator is using the original work, and in fact must use the original work, to create the parody, which itself becomes a whole new work.

Satires, on the other hand, are when the creator mimics something more generally, like a specific idea, political ideal, institution, person, organization, or concept, to comment on or expose the subject through exaggeration, sarcasm, irony, or (often) dark comedy. Think South Park, a Saturday Night Live opening skit, or the Colbert Report. The creator does not have to use an original copyrighted work in developing the satire, where the general aim is to get the audience to think critically about the subject. Satires are often used for ironic political commentary, and use much less “in-your-face” comedy than parodies.

You may have noticed that I mentioned copyrighted works above. Here’s where it gets hairy: under the Constitution, copyright holders have the exclusive rights to, among other things, (1) copy and reproduce their original works, (2) prepare derivative works based on their original works, (3) distribute copies of their original works, and (4) publicly display and perform their original works. 17 U.S.C. § 106. Parodies and satires, if created by someone other than a work’s original author, fall under the “derivative works” category. Thus, creators of parodies or satires “borrow” copyrighted works and must therefore tread carefully to avoid liability.

Satires that do not implicate a copyrighted work and instead merely comment on the subject without using proprietary materials are often protected by the First Amendment. Easy. If a copyrighted work is implicated, however, then an infringement occurs unless the “fair use doctrine” applies—which protects use aimed at criticism, comment, news reporting, teaching, scholarship, or research. 17 U.S.C. § 107. The fair use inquiry looks at (1) the purpose and character of the parody or satire (whether primarily commercial or educational), (2) the nature of the parody or satire (whether the copyrighted work is a valuable, publicly known, or expressive work), (3) the amount of the copyrighted work used in the parody or satire, and (4) the effect of the parody or satire on the potential market for the copyrighted work (whether the parody or satire is a work that the copyright holder would likely develop or license another to develop). If the parody or satire is found to be a largely similar to a valuable copyrighted work, is exploited commercially, and negatively affects the potential market for the copyrighted work, then the creator of the parody or satire is likely to lose if sued for infringement. Let’s look at some examples to see how this analysis plays out in the real world.

In the 1994 Supreme Court case Campbell v. Acuff-Rose Music, Inc., plaintiff Acuff–Rose Music filed suit against the members of the rap music group 2 Live Crew and their record company, claiming that 2 Live Crew’s song “Pretty Woman” infringed Acuff–Rose’s copyright in Roy Orbison’s rock ballad “Oh, Pretty Woman.” It cannot be contested that 2 Live Crew’s version is a parody of Roy Orbison’s original:

 

The Original:

Pretty Woman, won’t you pardon me,

Pretty Woman, I couldn’t help but see,

Pretty Woman, that you look lovely as can be

Are you lonely just like me?

 

The Parody:

Big hairy woman you need to shave that stuff

Big hairy woman you know I bet it’s tough

Big hairy woman all that hair it ain’t legit

‘Cause you look like ‘Cousin It’

 

After applying the fair use analysis, the Supreme Court held that the parody was “fair” and did not infringe Roy Orbison’s original. Specifically, the Court found that the parody was significantly “transformative” in nature from the original because it gave new expression and meaning to the original work, the amount of the original copied by 2 Live Crew was reasonable in light of their intent to create a parody, and although the parody was commercial in nature, the value of a parody resides in its ability to mimic the primary work. The Court further held that parodies often do not enter into the same market as the original work, so the parody was not likely to harm the market for the original. More generally speaking, the Court found that parodies can provide social benefit by shedding light on an earlier work, and in the process, create a new one. Parodies need to mimic an original to make its point, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing. Thus, when use of a copyrighted work is concerned, parodies were found to be more “fair” than satires, as satires can make their point without use of a copyrighted work in the first place.

In the 1998 Second Circuit case Castle Rock Entertainment, Inc. v. Carol Pub. Group, Inc., Castle Rock Entertainment, producer of the television series Seinfeld, brought suit against Beth Golub and Carol Publishing Group, author and publisher of The Seinfeld Aptitude Test, a book containing trivia questions about Seinfeld. In applying the four-factor fair use analysis, the court found that the trivia book’s commercial nature weighed against a finding of fair use because the trivia book’s purpose was simply to appeal to the crowd who enjoyed the show. The court generally noted that the scope of fair use is narrower with respect to fictional works than to factual works, as the characters and events referenced in a fictional book spring from the imagination of the original work’s authors. The additionally found that the amount of the original work used in the trivia book was substantial, and that the existence of the book usurped the copyright holder’s right to enter into the trivia book market altogether. Lastly, because the trivia book was not critical of Seinfeld nor did it parody Seinfeld in any way (in fact, it appeared to pay homage to Seinfeld without adding any new expression whatsoever), the court declined to find that the trivia book could be protected as a parody under fair use analysis.

To recap, parodies can usually be protected if they have some transformative value that adds something new to the copyrighted work without harming the copyrighted work’s commercial value. However, not every parody is created equally, and in each instance the particular parody must undergo the four factor fair use analysis to determine whether it constitutes a fair use. Satire, on the other hand, is usually not protected as fair use because there are often other ways to convey a particular satirical message without needing to use a copyrighted work. It is therefore always best practice to carefully consider what it is you may be using or copying, who might have rights to the work, and the likelihood that your use in some way impact the copyright holder in some way. Everyone likes a comedian, but consider your risks before publishing that parody or satire. 2 Live Crew may have come out on top, but that’s not a battle you want to wage.

For more information on this article and this topic, contact Charles Wallace.