A reader writes, apropos my recent post on parody and fair use,
Dear Mr. Copyright Expert,
So Ghettopoly loses while “The Wind Done Gone” prevails.
Is there a principle at work here other than measuring your revulsion and working backwards to get the desired result?
I can see why people are sometimes cynical about judges’ decisionmaking, but it’s good to check the facts to see whether they bear out the cynicism. And in fact, the leading modern parody cases don’t seem to support the cynical view. In Campbell v. Acuff-Rose (1994), the leading Supreme Court case on the subject, the Justices basically accepted a fair use defense by the rap group 2 Live Crew — not a very appealling defendant, that created a pretty vulgar parody of Roy Orbison’s “Pretty Woman.” (Look here for the lyrics, especially Verse 4 and the bridge preceding it.) On the other hand, in the most prominent recent case rejecting the fair use defense, Dr. Seuss Enterprises v. Penguin Books (9th Cir. 1997), involved a comparatively inoffensive Seuss-styled account of the O.J. trial, called “The Cat NOT in the Hat!” Hard to see much “revulsion” at the copyrighted work in the court’s opinion there.
What is the principle, then? Here’s the key argument from Campbell, which the Dr. Seuss court cited (and the bottom line of which I briefly summarized in my initial post, though without the supporting argument):
For the purposes of copyright law, . . . the heart of any parodist’s claim to quote from existing material, 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. . . . If, on the contrary, the commentary 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 claim to fairness in borrowing from another’s work diminishes accordingly (if it does not vanish) . . . .
Parody [which comments on the original] 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 [which doesn’t comment on the original] can stand on its own two feet and so requires justification for the very act of borrowing. . . .
Now as it happens this “parody/satire” distinction can certainly be criticized (though it can also be defended). First, many works, especially humorous ones, are ambiguous; they don’t articulate the point of their commentary in so many words, but leave it to the audience to figure things out, and different members of the audience can perceive things differently. Some people might well see any poem that uses Seussian style to discuss accused murderers as poking fun at Seussian conventions of childish innocence. How is a judge or jury to figure that out, especially if the work was aimed at people whose sensibilities and senses of humor are quite different from the judge’s or the jurors’ sensibilities?
Second, because of this, authors might be deterred from writing material that does implicitly comment on the original, for fear that this will lead to an expensive lawsuit. Third, it does indeed open the door to judges and juries acting based on their own like or dislike for the defendant’s work — vague rules do indeed risk such viewpoint discrimination. And indeed in some pre-Campbell cases, it did seem that some courts improperly counted a work’s vulgarity or sexual theme against it.
But to my knowledge there’s no reason to think that modern courts are in fact applying the test based on “revulsion” towards the defendant’s work. There’s much to criticize in the parody/satire distinction, but no reason to just assume the most cynical explanation of how it’s been applied.
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