Parody or Satire - who’s the fairest of them all?

Neeti Jain looks at the law surrounding parody and satire

Image: CC BY-NC-ND 2.0 Flickr: Austin Kleon

It is important, when looking to create legal exceptions to copyright infringement, to examine the contours of such exceptions very carefully. The fair use status granted by U.S. Courts to parodies on the one hand, and taken away from satires on the other, serves as an important example of what not to do.

Unlike the Copyright law in the UK, where specific categories of work are protected by a fair dealing reprieve in the United States of America(U.S.), Section 107 of Chapter 17 of the US code provides a defense of fair useto those accused of copyright infringement by setting down a four-factor test to judge the accused work:

(1) the purpose and character of use; (2) the nature of the copyrighted work; (3) the importance of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the accused use on the potential market for or value of the copyrighted work.

Therefore, if a new work is sufficiently transformative in its purpose – such as using the original for commentary, criticism, review or parody – it may be defended as a fair use, even when infringing the original.

On the face of it, the U.S. provisions on fair use may lead to a large variety of new, creative works being protected against allegations of infringement- as long as they pass the test. However, looking at the way courts have interpreted fair use provisions in the case of parody versus satire, it is clear that the ambit of the fair use defense is quite narrow and may be hard to predict, leading to hesitation in creating new works that draw from another.

Parody

The meaning of “parody” according to the Merriam-Webster dictionary is as follows:

1: a literary or musical work in which the style of an author or work is closely imitated for comic effect or in ridicule
2: a feeble or ridiculous imitation
— pa·rod·ic adjective
— par·o·dis·tic adjective 

“Big Hairy Woman” held to be fair use

One of the most prominent decisions relating to fair use is the US Supreme Court’s decision in Campbell v. Acuff –Rose Music. The U.S. Supreme Court examined the alleged copy under each of the factors of the four-factor fair use test provided by §107 of the U.S. Copyright Act and finally overturned the decision of the Court of Appeal. The Supreme Court held that 2 Live Crew’s song “Big Hairy Woman”, based on Roy Orbison’s original copyrighted song “Pretty Woman”, was sufficiently transformative of the original and was protected as a fair use. It is worth noting that Two Live Crew had requested permission from Acuff-Rose to write their parody but had been refused. Two Live Crew also did not seek the compulsory license that US law grants to composers to make cover versions of existing copyrighted song recordings because they thought their parody was not a cover of the original – being different in melody and lyrics.

One of the more important factors in the four-factor fair use test is the effect the use has on the potential market for or value of the copyrighted work. In Acuff, the Supreme Court held that parodies would rarely substitute for the original work that they are parodying. The court also noted with annoyance that artists “ask for criticism but only want praise”, for their work.

Why protect parody?

The First Amendment to the U.S. Constitution protects free speech. Fair use protects commentary and criticism in furtherance of that right to free speech. A parody that comments on, and criticizes the subject thereof, is protected by fair use – even though it may be infringing the copyright in the work being critiqued. Therefore, through the Acuff decision, the U.S. Supreme Court seems to have elevated parodies to a desirable fair use and demoted satire to something that is not worthy because the satirist has taken too much, without adding enough, to “avoid the drudgery in working up something fresh.”

Too bad, Satire. You just ain’t fair enough.

The definition of “satire” according to the Merriam-Webster dictionary is as follows:

1: a literary work holding up human vices and follies to ridicule or scorn
2: trenchant wit, irony, or sarcasm used to expose and discredit vice or folly

In Dr. Seuss Enterprises v Penguin Books the United States Court of Appeals for the Ninth Circuit gave its judgment on whether copyright and trade mark rights in the Cat in the Hat character created by Theodor S. Geisel, the author and illustrator of the famous children’s educational books written under the pseudonym “Dr. Seuss”, were infringed by “The Cat NOT in the Hat”, which was a poetic account of the O.J. Simpson trial by “Dr. Juice”. The disputed work narrates the trial from O.J Simpson’s perspective, using Dr. Seuss’s style of rhyme, for example:

“A man this famous/Never hires/Lawyers like/Jacoby Meyers/When you’re accused of a killing scheme/You need to build a real Dream Team” and “One knife?/Two knife?/Red knife/Dead wife.”

The court held that the Cat NOT in the Hat infringed Dr. Seuss’s copyright. Therefore, the question was only whether there was any fair use defense that could be claimed by Penguin and Dove, the publisher and distributor of the infringing work, respectively.

It was held that the Cat NOT in the Hat was not protected by a fair use defense because fair use only protects those transformative works that borrow from the original to comment or ridicule the original work itself. Such criticism, review or commentary would be considered as enhancing freedom of speech. Therefore, The Cat NOT in the Hat, which uses Dr. Seuss’s copyrighted works – such as the drawing of the cat in the hat, the similar title (protected by trade mark) and the style of his rhyming – to ridicule or satirize the O.J. Simpson trial, but not Dr. Seuss or his work, is not protected by fair use.

An example of what may not be fair use according to the U.S. Courts is this video by JibJab:

It is a flash movie, created during the 2004 U.S. presidential election, that uses the popular song by Woody Guthrie, “This land is your land” and has an animated George Bush and John Kerry singing the tune with lyrics that are different from the original (except for the title line). The song’s copyright owner, the Richmond Organization, through its Ludlow Music Unit, threatened legal action. JibJab responded by saying it was a parody and therefore, permitted as fair use.

The parties ultimately settled the case and therefore, it is unknown what its outcome would have been. It could be that the case settled because no one could be sure which way the courts would decide – given the thin line created between satire and parody by the decisions that came before. Given the Dr. Seuss case’s decision, it is likely that this song would have been held to be infringing and not covered by fair use since it is not parodying the actual song or its author but is satirizing the Republicans and their campaign.

Looking at the four factors of the fair use test in the U.S. Copyright Act, it is difficult to imagine why a court would not allow a satire of the sort in the JibJab case. JibJab admittedly use the “heart” of the original - but add plenty of originality and humour. The character and purpose of the use is transformative, a political commentary, criticism and primarily non-commercial (any commercial success coming their way was probably incidental and unintentional).

There is no way that someone who wants to listen to the Guthrie original for its musical qualities would substitute it with the JibJab version. Therefore, it is unlikely to have any effect on the potential market for the original. However, despite all this, JibJab’s video would probably not be accorded fair use protection in the eyes of the court, following the precedent of Acuff-Rose. The reason to not allow a satire that uses a copyrighted work to make its point is probably to prevent plain-old-copying, rather than to prevent any potential or actual monetary loss to the copyright owner.

The questions then are – if copyrighted works could be freely used to create satires on unrelated subjects – would this freedom act as a disincentive to the creativity of authors? Or would it enhance creative expression and free speech? Why is it that writing a review or comment on the original is a desirable “free speech” effect but creating a satire on something else is not? Can anyone say that a satire should not receive free speech protection? If it does borrow from a popular catchy tune or poem or something in order to create something new and socially valuable – a new work that would gain a wider audience due to its popularity or catchiness – why should that not be fair use? It is the original purpose of copyright also to create an intellectual commons for people to derive more creativity out of.

By limiting the applicability of the fair use defense to parody, but not providing it to satire, the law would create a limitation on future innovation and creativity. There may often be cases that have elements of satire and parody. In such cases, it may be counterproductive to have the courts opine on each and every case and pronounce it a parody or satire, fair use or not. Artists, commentators, reviewers, humourists would need to seek legal advice before they can even begin to create new works that are inspired by an existing work.

One would only be able to parody Jay Z himself, but never the government or a politician, using Jay Z’s popular song. Using Jay Z’s song as a background may have a much bigger impact by reaching a wider audience – but fair dealing provisions that are limited to parodies only may not allow such free speech and intellectual exchange. Therefore, it is important, when undertaking a review of the UK’s copyright laws, to include fair dealing exceptions that allow all kinds of humour, criticism, review and commentary to be protected – including satires that use a copyrighted work, as long as it is not made with the intention of stealing the market of the original and does not have that direct effect.

More stuff to read on this issue:

• Give fair use a wide berth and prevent casualties like “Newport State of Mind”.
• Read more about parody exceptions in different jurisdictions in Jagdeep Bahra’s article.