A parody is defined as a humorous use of an existing song, play, or writing that changes some of the original content to create a laughable, ironic new work. However, the original author may wish to prosecute the parody’s author for copyright infringement. Unfortunately, for many of these original authors, the creators of parodies are generally protected under the “fair use” doctrine.
The driving element behind the legality of parodies lies in the first factor of the four-factor fair use test, which looks at the purpose and character of the use. In order to be deemed fair use, a court would have to conclude that the new parodic work uses some elements of the prior author’s work to create a new, transformative work that comments on or criticizes the original work.
If the parody is more transformative, then the nature of the work, the amount of work taken and the effect of the market is weighed less heavily. A parody that copies the original work without adding new elements to it will not have a good chance of claiming fair use. Similarly, a work that adds no artistic value or social commentary to the original will also usually not qualify for fair use.
Why Commercial Gain Does Not Always Negate Fair Use
While it is presumed that a parody’s commercial gain negates its fair use, that is not always the case. The fact that a parody may result in commercial gain does not weigh against its fair use so long as its commercial gain does not negatively impact the marketability of the original work.
A recent example of this is the parody writer Weird Al Yankovic, who is best known for rewriting well known songs by taking the music of other authors and adding his own new lyrics to add a satirical, ironic twist. His work was deemed to be fair use since he added substantially transformative material to the original work to create a humorous new song. Although he enjoys commercial gain from his parodies, he has not negatively affected the marketability of the original works and can therefore continue to claim fair use.
This decision upheld the Supreme Court decision in Campbell v. Acuff-Rose Music, which stated that a parody is deemed fair use if it adds new material that comments on or criticizes the original work and does not affect the marketability of the original work. See Campbell v. Acuff-Rose Music, 510 U.S. 569.
The purpose of allowing parodies to fall under fair use is to allow for the expansion of creativity and for the creation of new ideas. Supreme Court Justice Souter quoted Lord Ellenborough by stating that his reasoning for deeming parodies as fair use was, “While I shall think myself bound to secure every man in the enjoyment of his copyright, one must not put manacles upon science.” His main point was that the sanctity of copyrights should not prevent its expansion into new ideas and other fields.
Questions About the Fair Use Doctrine? Contact Our Intellectual Property Attorneys and Receive Answers
If you are a copyright owner and believe someone is falsely claiming fair use through parody, or have created a parody and believe you are being improperly prosecuted, then you should consult an intellectual property attorney to learn your rights. Contact us today at (310) 526-8152 for a free initial consultation. You can also contact us online and provide us with information about your legal situation.