If you’ve ever watched an episode of South Park or heard a song by “Weird Al Yankovic,” you’re no stranger to parodies. Some creators have built their entire careers on parodying the copyrighted works of others. Maybe you’ve even asked yourself, “Is this legal?” This post will tackle when a work is considered a fair use parody and when it is not.
The Basics of Parody
Fair use is codified in Section 107 of the Copyright Act. The doctrine provides an affirmative defense for unauthorized uses that would otherwise amount to copyright infringement. Section 107 lists a handful of examples of fair use, including uses of copyrighted works “for purposes such as criticism [or] comment.”
Both parody and satire use humor as a tool to convey a message, but each serves a different purpose. Parody imitates the style of a particular creator with deliberate exaggerations for comedic effect. Satire uses humor to comment on the world-at-large, particularly in the context of politics.
While both parody and satire incorporate criticism and commentary, only parody may be considered fair use. The Supreme Court explained in Campbell v. Acuff-Rose Music, Inc., that “[p]arody needs to mimic an original to make its point, and so has some claim to use the creation of its victim’s (or collective victims’) imagination, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing.”
How do the courts analyze fair use?
Although parodies are more likely to be considered fair use, every attempt is not created equally. Each particular parody would need to undergo the four-factor fair use analysis laid out in Section 107 to determine whether it constitutes as fair use. The factors are as follows:
- First, the purpose and character of the use. This factor considers whether the use is for commercial or nonprofit educational purposes and whether the use is “transformative,” or whether the use adds something new to the original creative work or presents it in a different light.
- Second, the nature of the copyrighted work, which asks whether the copyrighted work is creative or factual, and if it has been previously published.
- Third, the amount or substantiality of the new use in relation to the original work.
- Fourth, whether the new work affects the market for the original work. This factor considers the degree of market harm caused by the new work and the potential market harm that may arise.
What would be considered a fair use parody?
In 2012, Brownmark Films, an art experiment and viral video production company, sued Comedy Partners, creators of the animated television show South Park, for creating an animated version of a popular internet music video. The court analyzed Comedy Partners use under the four-factor fair use analysis and found it to be an “obvious case of fair use.” Under factor one, the court reasoned that the Comedy Partners’ video was “clearly parody” and was transformative because their version used only enough of the original dialogue and visual characteristics to conjure up the original viral video in order to “lampoon the recent craze in our society of watching video clips on the internet” throughout the episode.
Further, regarding factor four and the market for Brownmark’s video, the court found that there was no evidence of market harm. In fact, the likely effect of the Comedy Partners’ video “ironically, would only increase…revenue” given that viewers would be more likely to seek out the original video after seeing the episode. Based on this understanding of parody and transformative use, the court found that Comedy Partners’ use of Brownmark’s video was fair use.
What wouldn’t be considered a fair use parody?
In 2016, ComicMix was set to publish the book Oh, the Places You’ll Boldly Go! (“Boldly”), which combined the elements of Dr. Seuss’s well-known book, Oh, the Place You’ll Go! (“Go!”) with the sci-fi franchise Star Trek. ComicMix copied liberally from Go! by paralleling the books visual style and textual structure and, in a public Kickstarter campaign, declared that Boldly was a fair use of Go!.
In 2017, Dr. Seuss Enterprises, the owner of the copyright in Go!, sued ComicMix in the Southern District of California for copyright infringement. The court reasoned that Boldly was not a parody at all. Instead, the book was considered a “mash-up” that combined Go!’s style and format with Star Trek tropes for commercial purposes. However, Boldly was sufficiently transformative because each scene was portrayed from a Star Trek prospective, with many of the Seussian-like characters being replaced with characters outfitted with Star Trek gear and features.
Despite finding Boldly was transformative, the fourth factor weighed in favor of Dr. Seuss Enterprises. The court noted that when considering the market for potential derivative works, it “includes only those that creators of original works would in general develop or license others to develop.” This scope included mash-up books, like Boldly. The court observed that although Dr. Seuss Enterprises’ licensed works had not included mash-ups of the same type as Boldly, the book invaded the potential market. Therefore, the court held that ComicMix’s fair use defense failed.
ComicMix appealed the District Court’s holding and, in 2020, the case made its way to the 9th Circuit. Once again, Boldly was found not to be fair use. Like the District Court, the 9th Circuit reasoned that Boldly was not a parody. However, the court reasoned Boldly was not transformative because it did not critique or comment on Go!. Boldly instead mimicked Go! and “paralleled Go!’s purpose.” By closely replicating “the exact composition, the particular arrangements of visual components, and the swatches of well-known illustrations,” Boldly copied the “heart” of Go!.
Further, the court observed that Boldly “intentionally targeted and aimed to capitalize on the same graduation market as Go!.” This targeting would supplant Go!’s existing and potential market for derivative works. The court concluded that all factors weighed heavily against fair use, as Boldly was “a non-transformative commercial work that targeted and usurped Go!’s potential market.”
- “Parody needs to mimic an original to make its point, and so has some claim to use the creation of its victim’s (or collective victims’) imagination, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing.”
- Not every attempt at parody is created equal and must still undergo the four-factor fair use analysis.
- To be truly “transformative,” among other things, a work must add something new to the original or present it in a different light.
Looking to learn more on fair use and the differences between parody and satire? Check out the What Is Fair Use and Why Is Parody Considered Fair Use But Satire Isn’t sections of FAQs.
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