A recent question asked whether a project was a permissible “parody” of a preexisting work, or whether the project was too close to the original and was therefore an impermissible rip off – a/k/a copyright infringement.
The answer can be maddeningly complex, and frustratingly (or entertainingly) fact specific.
First the basics: An “idea” is not copyright protectable – an “idea” is too general.
What is copyright protectable is the specific execution of an idea.
A “comedy about a family” is not copyright protectable – it’s just an idea, and far too general. But the specific characters and setting and plot and other myriad details of a specific family, such as The Simpsons, are copyright protectable; because of the specific execution of the details of the idea. And therefore another specific, unique execution of the same idea is also separately, independently, copyright protectable, such as The Family Guy.
Each specific execution is protected from being copied without the authorization of the owner.
But beyond those general rules, the U.S. Copyright Act excuses certain circumstances that would otherwise be impermissible copying.
One of those certain circumstances is what is commonly known as “fair use.” More accurately, the “fair use defense,” because technically it is a legal defense to having been sued for copyright infringement.
Parody is one of those “fair uses.” But not a specifically listed use – or even a clearly referenced use. So much for the basics – now onto the specifics.
Or at least the basics… of the specifics.
Four factors are considered in analyzing whether a use was a “fair use.”
1. The purpose and character of the use of the original copyrighted work – commercial or non-commercial; whether a Section 107 favored purpose – criticism, comment, scholarship, research, news reporting or teaching; the degree of transformation from the purpose of the original to the purpose of the new work;
2. The nature of the copyrighted work – certain types of work are more deserving of protection than others;
3. The amount and substantiality of the portion used of the copyrighted work – in relation to the whole of the copied work; and
4. The effect on the potential market or value of the copyrighted work.
An interlude – Mr. Webster’s definition of “parody” – “a literary or musical work in which the style of an author or work is closely imitated for comic effect or in ridicule; a feeble or ridiculous imitation.” Synonyms include: burlesque, caricature, put-on, rib, send-up, spoof, takeoff, travesty.
So by it’s very nature, a parody MUST closely resemble or reference the original enough for the audience to recall the original, but not so much as to actually BE infringement – thereby “fair use.”
But because parody takes so many forms, bright line, preemptive rules are next to impossible.
Nevertheless, to qualify as a parody the new work PROBABLY should, at the least, (referencing the fair use rules above)
1. aim for comment and/or criticism – not necessarily of the original work, but of something that is shown by the contrast between the original and the parody; and therefore is transformative from the purpose of the original to a new purpose (the original was serious, the new is silly). For example…
A federal court found that one of these photos was a permissible fair use parody of the other. Although very similar in a number of respects, details of lighting, shading, and facial expression made one a parody, as opposed to an impermissible copy.
(But which is the parody…?) (What made you choose the one you chose?)
2. regarding the nature of the copyrighted original work…? OK, a bit of a blind alley here. Admittedly this fair use factor is of little use in determining parody – as even the U.S. Supreme Court agrees (in the “2 Live Crew” case).
3. use an amount and substantiality of the original as is necessary to recall and reference the original, but then inserting sufficient originality (and presumably originality that is mocking or critiquing or deriding or insulting or jeering or taunting or in some way chiding) as to separate the intended parody from the purpose of the original.
The photos above differ in very subtle but very significant ways – sufficient to qualify as parody in that instance.
This one is particularly hard – because it’s a bit like trying to define “funny.” Sometimes a very tricky thing to explain:
Interlude Part Deaux: Tommy DeVito: … I’m funny how, I mean funny like I’m a clown, I amuse you? I make you laugh, I’m here to fuckin’ amuse you? What do you mean funny, funny how? How am I funny?
Henry Hill: Just… you know, how you tell the story, what?
Tommy DeVito: No, no, I don’t know, you said it. How do I know? You said I’m funny. How the fuck am I funny, what the fuck is so funny about me? Tell me, tell me what’s funny!
And, Interlude: The Final Insult: A mashup of the Charles Schultz Peanuts characters giving voice to the GoodFellas dialog above. The Peanuts characters, the video of the Peanuts characters and the dialog from Goodfellas are each separately copyright protected content. So is the mashup a copyright violation, or permissible parody?
And is it funny? Â (if you answered “no,” seek counseling).
And the last of the fair use rules; 4. the effect of the use on the potential market for or value of the original work.
But this too is of only limited use in determining parody because usually the owner of the original work would not grant a license (a purchased permission) to the parody artist; so an uncompensated fair use of the original material would not deprive the holder of the original work from a payment; the original material’s owner wouldn’t take the money even if it was offered.
Therefore fair use reference of the original in the parody typically would not affect the market or value of the original.
Parody – it’s just that simple!
Obviously not at all simple.
Which is why it may be important to involve an entertainment attorney early in your creative process, before you have spent months or years writing the script, or developing and producing the film – only to find out that it is NOT a fair use parody. But is instead an impermissible copyright violation, likely to be shut down the moment it sees the light of day.
Additional (and dense) reading:
Luther R. Campbell aka Luke Skyywalker, et. al., Petitioners v. Acuff-Rose Music, Inc., 510 U.S. 569, 114 S.Ct. 1164, 127 L.Ed.2d 500 (S.Ct. 1994);
Leibovitz v. Paramount Pictures Corp., 137 F.3d 109 (2nd Cir. 1998)
As an entertainment attorney, my focus is protecting and advancing your project. Please contact me at your convenience if I may be of assistance.
Disclaimer: The above is for general information purposes only, is not legal advice and does not create any attorney/client relationship. Please seek legal counsel regarding your specific projects and needs.