Fair Use in Parody and Satire: Analysing the Boundaries of Creative Expression in Common Law Countries.

14th December, 2024 - 10:37 am Categories: Constitutional Law Copyright Litigation 0 Comments

INTRODUCTION

Parody, an art form as old as Aristophanes, raises an interesting tension in copyright law where it conflicts with the idea of proprietary rights of original authors. This collision raises a fundamental question: if two works valuable from an artistic point of view are contested in the field of competition of copyrights, which ought to win?

Originally the legal use of the word parody does not tally with the literary use of the word. The traditional literary definition[1] has to do with humorous creations appealing to aesthetic tastes with traceries of the original augmented to form called values. However, the Supreme Court of the U.S. in Campbell v. Acuff-Rose Music, Inc.[2] specifically concentrates on using portions of existing work to create new, critical content, rather than addressing broader copyright issues. This broader legal definition has seen works without traditional parody qualities to be eligible for fair use protection, thus adopting the First Amendment aspect into fair use analysis.

The history of parody jurisprudence[3] from the existing case informs that a drastic change has occurred since the ruling that equated parody with copyright infringement comes from Columbia Broadcasting System, Inc. v. Loew’s, Inc.,[4] decided by the U.S. Supreme Court in 1958. The case involved a TV burlesque of “Gaslight”, in which Loew’s contended that CBS’s parody infringed its copyright. The district court ruled CBS appropriated too much of the original work, deciding parody wasn’t a valid fair use defence. The Supreme Court’s tied vote upheld the Ninth Circuit’s ruling, restricting parody protection in copyright law for years. Common law courts have come to recognize that parody serves a unique social purpose, though this value is often recognized only in the most abstract terms and without much discussion. Today, the overriding test in parody cases is the “conjure up” doctrine which permits a parodist to use just enough of the copyrighted work[5] with which to enable the average member of the audience to identify it. Nevertheless, this test is insufficient to meet the paradigmatic purpose of parody that is defended as the rationale for fair use.

Juggling Parody & Satire vis-à-vis creative expression: landmark cases

As much as humour is characteristic of parody, its civic contribution is mainly in its critical contribution. Thus, parody is a critically important instrument, not only because it emanates from within that which it is attempting to critique, but because parody is not the same thing as a comedic adaptation of a particular work[6] or idea. This critical effect should be at the heart of any fair use defence against the infringement of a copyright. Just how much parody should be allowed to copy should be assessed in relation to the critical message of the particular parody in question ie. parodists should be allowed to use what is necessary to achieve their work’s critical aims effectively. This can be traced back to many landmark cases like:

• In Campbell v. State Acuff-Rose Music, Inc.,[7] the Supreme Court of U.S. ruled that a parody of Live Crew’s song “Oh, Pretty Woman” constitutes fair use under copyright law. This case clarifies that commercial nature does not automatically preclude fair use. Instead, there are two factors to consider. Judge Souter emphasized that a parody has inadvertently altered the original work. This leaves some copy that can convey the message. The decision underscores the importance of protecting parody and satire as important forms of expression under the guise of the First Amendment. This reinforces their role in expressing opinions and criticizing culture.
• In Seuss Enterprises v. United States Penguin Books,[8] Dr. Seuss Enterprises filed a lawsuit against Penguin, claiming copyright and trademark infringement in the publication, “The Cat NOT in the Hat!”, a parody of the trial of O.J. Simpson. The court concluded that Penguin probably infringed significant protected parts of Dr. Seuss’s works, especially “The Cat NOT in the Hat!”, and granted an injunction to Dr. Seuss with a favourable decision by ordering a preliminary injunction that put a hold on Penguin’s production of the parody. It evaluated that there was a great likelihood of

success for the Dr Seuss on the copyright counts that serios for any lawsuit existed in the trademark and dilution claims.

In Leibovitz v. In Paramount Pictures Corp.,[9] Annie Leibovitz filed an action against Paramount for alleged copyright infringement related to a parody advertisement related to the film “Naked Gun 33 1/3: The Final Insult”, which replicated her iconic image of pregnant Demi Moore. The U.S. District Court entered judgment in favour of Paramount, relying on the doctrine of fair use, holding that the advertisement was transformative and offered new commentary notwithstanding its commercial purpose. The court thus clearly held there to be no adverse market impact on Leibovitz’s work and ruled that the parody was not a market substitute. The circuit court also dismissed Leibovitz’s appeal based on established legal standards for parody.

Balancing Creative Expression and Copyright Protection

Today’s copyright law provides a significant degree of control[10] to owners regarding by which method consumers may receive messages that refer to proprietary works, in addition to outright copying—that is, anything ‘substantially similar’ or ‘clearly derived’ from a work. This rather extensive control has stirred criticism from the academic community especially based on the extent to which multiple versions detach the audience from the original work or impact creativity incentives. This tension has been extended by digital technology, which enables copying and distribution for a previously private communication and bring it within the scope of an existing copyright law.

In an effort to calibrate[11] its treatment of both speech and incentives for non-infringing competitors, the courts have developed parody as a means of testing critical speech that gets to the market while avoiding free-riding. This test allows anyone to use excerpts of copyrighted material if it is commenting upon the copyrighted material but does not allow the use of the copyrighted material if the purpose is to gain attention or to lampoon a larger society. However, this limited doctrine[12] again does not suffice as the main generator of liability for creative re-use specially in the light of the difficulty to establish what points of views are attributable in imprecise creative works.

The rationale that governs the imposition of the legal regime[13] of copyright is to contribute to the public domain. This implies that innovative uses should be pursued until they are likely to substantially undermine consumers ability to differentiate and select works. It is an element characteristic[14] to trademark law to embrace consumer choice however in application in copyright laws, consumer’s choice arises when secondary use changes the perception of the end users in a manner that is likely to unfairly hinder the owner in their attempts to cultivate an audience for the communicative work they own.

The present legal system, more especially after Campbell, has shifted towards permitting parodists on the use of the part of the copyrighted material. Although this wider meaning is a part of the First Amendment principles incorporated into copyright legislation, it has resulted in certain appellate courts drawing on literary-artistic specialists[15] in their reasons. Some people worry that this development may divert the attention of the courts from the bare essential analysis of the fair use doctrine that require application of four factors and complicate it with debates over the aesthetic merits of artistic productions.

CONCLUSION

Parody and satire are considered forms of constructive criticism, constitutionally protected under both the First Amendment and the copyright clause. The Ninth Circuit’s Loew’s decision in the case of Columbia Broadcasting System, Inc. v. Loew’s, Inc.,[16] initially made parody a challenging legal path. Subsequent developments, especially in cases such as Elsmere Music, Inc. v. National Broadcasting Co.[17] & Berlin v. E.C. Publications, Inc.,[18] have helped shape the legal picture. The Supreme Court’s Campbell decision, though, vindicates the basis of protecting commercial parody from the threat of an injunction. But the post-Campbell case may have swung too far in the opposite direction ie. in Harper & Row v. Nation Enterprise[19] the Supreme Court of U.S. ruled that an unauthorized extract from a copyrighted manuscript is the copyright infringement and stressed that to some extent the interests in fair use should yield priority of the rights of holders of copyrights. The critical impact test offers a more balanced approach than the quantitative “conjure up” standard, forcing courts to expressly justify decisions based on copyright principles. True parody rarely threatens a copyright’s economic value through substitution; when copyright holders sue, the dispute often centres more on pride than economic harm. U.S. copyright law is not designed to protect pride or work “integrity”, yet court decisions sometimes appear influenced by sympathy for the original creator or distaste for certain parodies. Nevertheless, parody that takes up minimal space and at the same time changes a lot should be encouraged. At the same time, it creates a compensation mechanism for those who invest more and change less. This approach best serves the two fundamental purposes of copyright: to promote the healthy development of the arts and sciences through protected criticism, while maintaining adequate protection for breeders of origin.

Author: Sulipta Surabhi, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at Khurana & Khurana, Advocates and IP Attorney.

REFERENCES

Aishwaryasandeep, ‘Parody, Satire and Copyright: Navigating Legal Boundaries in Advertisements – Aishwarya Sandeep- Parenting and Law’ (2 December 2023) <https://aishwaryasandeep.in/parody-satire-and-copyright-navigating-legal-boundaries-in-advertisements/, https://aishwaryasandeep.in/parody-satire-and-copyright-navigating-legal-boundaries-in-advertisements/> accessed 4 December 2024

Albin MC, ‘Beyond Fair Use: Putting Satire in Its Proper Place Essay’ (1985) 33 UCLA Law Review 518

‘Berlin v. EC Publications, Inc., 219 F. Supp. 911 (S.D.N.Y. 1963)’ (Justia Law, 11 December 2024) <https://law.justia.com/cases/federal/district-courts/FSupp/219/911/1438356/> accessed 11 December 2024

Bradford LR, ‘Parody and Perception: Using Cognitive Research to Expand Fair Use in Copyright’ (2004) 46 Boston College Law Review 705

‘COLUMBIA BROADCASTING SYSTEM, INC. v. LOEW’S INC., 356 U.S. 43 (1958)’ (Justia Law) <https://supreme.justia.com/cases/federal/us/356/43/> accessed 11 December 2024

‘——’ (Justia Law) <https://supreme.justia.com/cases/federal/us/356/43/> accessed 11 December 2024

‘Elsmere Music, Inc. v. National Broadcasting Co., 482 F. Supp. 741 (S.D.N.Y. 1980)’ (Justia Law, 11 December 2024) <https://law.justia.com/cases/federal/district-courts/FSupp/482/741/2095233/> accessed 11 December 2024

Faaland SL, ‘Parody and Fair Use: The Critical Question’ (1981) 57 Washington Law Review

‘Fair Use In Parody And Satire’ (FasterCapital) <https://fastercapital.com/keyword/fair-use-in-parody-and-satire.html> accessed 4 December 2024

Fox JM, ‘THE FAIR USE COMMERCIAL PARODY DEFENSE AND HOW TO IMPROVE IT’ (2006) 46

Gozos CMM, ‘FROM LAUGHTER TO LITIGATION: EXAMINING THE LEGAL LIMITS OF PARODIES IN RELATION TO COPYRIGHT LAW AND THE RIGHT TO FREE SPEECH’

‘Harper & Row v. Nation Enterprises | 471 U.S. 539 (1985) | Justia U.S. Supreme Court Center’ <https://supreme.justia.com/cases/federal/us/471/539/> accessed 11 December 2024

Milne E, ‘Parody: Affective Registers, Amateur Aesthetics and Intellectual Property’ (2020) 19 Cultural Studies Review 193

‘ScoreDetect Blog | Intellectual Property & Copyright Protection’ (ScoreDetect Blog | Intellectual Property & Copyright Protection, 18 September 2024) <https://www.scoredetect.com/blog/posts/parody-vs-satire-fair-use-copyright-law> accessed 4 December 2024

‘Why Is Parody Considered Fair Use but Satire Isn’t?’ (Copyright Alliance, 12 September 2017) <https://copyrightalliance.org/faqs/parody-considered-fair-use-satire-isnt/> accessed 4 December 2024

[1] Esther Milne, ‘Parody: Affective Registers, Amateur Aesthetics and Intellectual Property’ (2020) 19 Cultural Studies Review 193.

[2] Campbell v. State Acuff-Rose Music, Inc., 510 US 569 (1994).

[3] Michael C Albin, ‘Beyond Fair Use: Putting Satire in Its Proper Place Essay’ (1985) 33 UCLA Law Review 518.

[4] ‘COLUMBIA BROADCASTING SYSTEM, INC. v. LOEW’S INC., 356 U.S. 43 (1958)’ (Justia Law) <https://supreme.justia.com/cases/federal/us/356/43/> accessed 11 December 2024.

[5] ‘ScoreDetect Blog | Intellectual Property & Copyright Protection’ (ScoreDetect Blog | Intellectual Property & Copyright Protection, 18 September 2024) <https://www.scoredetect.com/blog/posts/parody-vs-satire-fair-use-copyright-law> accessed 4 December 2024.

[6] ‘Fair Use In Parody And Satire’ (FasterCapital) <https://fastercapital.com/keyword/fair-use-in-parody-and-satire.html> accessed 4 December 2024.

[7] Campbell v. State Acuff-Rose Music, Inc., 510 US 569 (1994).

[8] Dr. Seuss Enters., LP v. Penguin Books USA, Inc., 109 F.3d 1394 (9th Cir. 1997)

[9] Leibovitz v. In Paramount Pictures Corp., 137 F.3d 109 (2nd Cir. 1998).

[10] Clarissa Marie M Gozos, ‘FROM LAUGHTER TO LITIGATION: EXAMINING THE LEGAL LIMITS OF PARODIES IN RELATION TO COPYRIGHT LAW AND THE RIGHT TO FREE SPEECH’.

[11] Jonathan M Fox, ‘THE FAIR USE COMMERCIAL PARODY DEFENSE AND HOW TO IMPROVE IT’ (2006) 46.

[12] Susan Linehan Faaland, ‘Parody and Fair Use: The Critical Question’ (1981) 57 Washington Law Review.

[13] ‘Why Is Parody Considered Fair Use but Satire Isn’t?’ (Copyright Alliance, 12 September 2017) <https://copyrightalliance.org/faqs/parody-considered-fair-use-satire-isnt/> accessed 4 December 2024.

[14] Laura R Bradford, ‘Parody and Perception: Using Cognitive Research to Expand Fair Use in Copyright’ (2004) 46 Boston College Law Review 705.

[16] ‘COLUMBIA BROADCASTING SYSTEM, INC. v. LOEW’S INC., 356 U.S. 43 (1958)’ (Justia Law) <https://supreme.justia.com/cases/federal/us/356/43/> accessed 11 December 2024.

[17] ‘Elsmere Music, Inc. v. National Broadcasting Co., 482 F. Supp. 741 (S.D.N.Y. 1980)’ (Justia Law, 11 December 2024) <https://law.justia.com/cases/federal/district-courts/FSupp/482/741/2095233/> accessed 11 December 2024.

[18] ‘Berlin v. EC Publications, Inc., 219 F. Supp. 911 (S.D.N.Y. 1963)’ (Justia Law, 11 December 2024) <https://law.justia.com/cases/federal/district-courts/FSupp/219/911/1438356/> accessed 11 December 2024.

[19] ‘Harper & Row v. Nation Enterprises | 471 U.S. 539 (1985) | Justia U.S. Supreme Court Center’ <https://supreme.justia.com/cases/federal/us/471/539/> accessed 11 December 2024.