Part 1: Parody v. Satire
In the coming weeks, I will be writing posts here about the various exceptions to copyright protection. Once you’ve created a copyright, you have significant and powerful tools allowing you to control how the copyrighted subject matter is used. But there are also ways of using copyrighted material that is permissible, even without permission. Most of these exceptions, in the United States at least, are grounded in an overarching rule of ‘fair use’.
You may have heard that phrase bandied about the internet, but do you know what it means? Not many do. “Fair use” are exceptions to copyright that courts have granted over the years that are now codified in 17 U.S. § 107.
“Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
the nature of the copyrighted work;
the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.”
As you can see, the bill itself includes certain usages that are “per se” permissible, such as teaching, scholarship, and research, but it left open a broader test to determine if a defendant’s usage of the material was infringement. The court must use a four-part test to determine “fair use” and over the years, parody has generally been designated fair use under the four-point test.
So, how does parody and satire fit into all this?
The Supreme Court ruled in Campbell v. Acuff Rose Music, Inc. that parodies are fair use under copyright law. When most people use the word “parody” they’re thinking of a whimsical, funny, fairly lighthearted play off/version of an original work. But the Supreme Court relies on a somewhat different definition of parody.
The Supreme Court has ruled: “a parody may qualify as fair use under § 107. According to the Court, a parody is the ‘use of some elements of a prior author’s composition to create a new one that, at least in part, comments on that author’s works’.” (Campbell, 580).
The Court even went so far as to rule that for-profit parodies were included under the fair use umbrella. But – and this is a very important but – the metes and bounds of this protection are narrower than they seem.
Because, also in Campbell, the Supreme Court established what is essentially an exception to an exception; more precisely, it specified that while parody (as defined above) was clearly fair use even if used in commerce, satire would be given significantly less leeway under the four-part test (especially if the satire is used in commerce.)
The Court reasoned that satire: “has no critical bearing on the substance or style of the original composition, which the alleged infringer merely uses to get attention or to avoid the drudgery in working up something fresh’. The work is less transformative, and other fair use factors, such as whether the new work was sold commercially, loom larger. The Court explained further that while a parody targets and mimics the original work to make its point, a satire uses the work to criticize something else, and therefore requires justification for the very act of borrowing. As a result, the Court appears to favor parody under the fair use doctrine, while devaluing satire.” See here at § B.1 referencing Campbell at 581.
The Court relied on two main aspects of parody that justified the exception: (1) whether the usage commented on or criticized the original work (and was thus transformative in nature), and (2) that it would be unlikely that the work would ever be licensed because a copyright holder was unlikely to give a license to someone who is planning to criticize them.
Essentially, the court found that making parody a copyright exception was a net good for society. But the same could be said for satire, and the court battles over what should be defined as parody and what should be defined as satire shows clearly that the Campbell decision was not a straightforward decision, as courts across the country now had to determine what exactly counted as a parody (or didn’t count as a satire).
But what about Weird Al?
I don’t think you can talk about parody in the United States without at least mentioning Weird Al Yankovic: For those who don’t know about him, he’s a singer, songwriter, and accordian-playing polka master who also does comedic rewrites of popular songs. And Weird Al’s songs have definitely tested courts ability to pinpoint the line that separates parody and satire. At face value, Weird Al’s songs seem to fit into the satire category – when an infringer simply makes use of the underlying work as a jumping off point without any political or editorial message – especially since many of his songs are so light-hearted. And yet, as detailed in this article, courts have been split forever over whether Weird Al is parody or satire.
Luckily for Weird Al, he has never had to face a judge for a definitive determination of whether his works counted as parody because he takes one critical step in (almost) all of his work. Specifically, he always seeks permission from the artist of the songs he is parodying and is most often given a license by the artist. That has lead some to argue in lower courts that Campbell was wrong in assuming that copyright holders would be unwilling to license their works for the purpose of parody, but Weird Al may be something of an exception to that because his gently comedic remakes of popular songs are frequently considered rights of passage for musicians who are happy to grant him a license.
Long Story Short:
In summary, usage of copyrighted material for the purpose of commenting on or criticizing the original material is a parody and is a recognized exception to copyright law. However, the usage must reflect back on the original; usages that simply use a previous framework for comedic effect are not transformative enough to count as fair use, though what constitutes a comment or critique of the underlying work is something of a gray area, as demonstrated by Weird Al’s work. But, in the end, the safest way to protect yourself when using someone else’s copyrighted material is to license it.
The Law Office of Erin Dwyer-Frazier represents clients in all stages of the copyright process. Reach out today and let’s see how I can help protect you and your work!