By: Tyler Hampy
As mentioned in my last post, this post will continue the discussion on the fair use doctrine. Specifically, this post will discuss whether parodies of copyrighted works can be considered fair use.
To recap, the fair use doctrine permits the legal use of copyrighted material without first acquiring permission from the copyright owner. The doctrine balances the exclusive rights of a copyright holder with the public’s interest in the distribution of information. As such, if the use of the work is for a purpose such as criticism, comment, new reporting, teaching, or research, the use does not constitute copyright infringement.
So, are parodies considered fair use? The answer is usually yes. Parodies may be regarded as fair uses of privately owned intellectual property for a couple of reasons.
First, as the court noted in Tin Pan Apples, Inc. v. Miller Brewing Co, Inc., 737 F. Supp. 826, 829 (S.D.N.Y. 1990), “[t]he ‘parody’ branch of the ‘fair use’ doctrine is itself a means of fostering the creativity protected by the copyright law.”
Second, courts have reasoned that society’s interest in the free flow of criticism can exempt parodies from the restrictions granted to authors of original works through copyrights. Courts have also specifically recognized that the free flow of criticism improves the store of knowledge, so the trend is to provide more protection to derivative works, i.e., works that take or borrow from original copyrighted works, that are both entertaining and critical. Because parodies are typically protected as fair use, makers of derivative works often claim that their derivative work is a parody in order to defend against claims of copyright infringement.
How do you know if the work will be considered a parody and therefore, granted fair use protection? Historically, the line of cases that pushed the parody fair use defense forward focused primarily on two aspects of a given parody: a) the extent to which it borrows from an original work, and b) its market effect on the original work. It was only when parodies were too commercial, borrowed substantially from copyrighted works, or reduced the market value of copyrighted works that they were not entitled to the protection of the fair use doctrine.
However, recent court decisions have been strict in holding that if a derivative work is not clearly a parody, fair use protection should not be given. Courts have reasoned that a derivative work is not a parody if the work does not target the original copyrighted work with criticism. Without specifically acknowledging so, the courts are distinguishing between two mechanical forms of satire: parody and burlesque. Parodies target their hosts with criticism, while burlesques tend to target foreign or generalized subject matter. The former is entitled to further fair use analysis while the latter is deprived of fair use protection.