Copyright Law & Parody
Making fun of celebrities, politicians and other aspects of our culture is a practice that is practically considered a birthright. Parody is a method of laughing at ourselves and at the same time making a point or sending a message to society at large. Parody, no matter how funny, is a form of criticism, and as such inevitably criticizes another creative work. This in turn creates an inherent conflict between original creator and the creator of the parody. The question then remains as to where the line is drawn between the two such that the copyrighted material remains protected while still allowing for the creation of parodies.
Other People Are Reading
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Fair Use
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Four factors are used when determining whether a parody based on a copyrighted work falls within the definition of “fair use.” Factor 1 goes to the “purpose and character of the use.” Was the parody created for commercial or nonprofit purposes? Factor 2 goes to the “nature of the copyrighted work.” Factor 3 analyzes the amount of the original work used in the parody compared to the copyrighted work. Factor 4 considers the effects of the use in the market in terms of the value of the copyrighted material.
Character of Use
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When deciding the “character and use” of the copyrighted material, the following are criteria for making the determination: First, was the parody meant for commercial or noncommercial reasons? Commercial use does not automatically mean that the parody is outside of “fair use.” Second, is the portion of the copyrighted material being used in the parody conforming to the “fair use” definition? In other words, is it a criticism or comment of some sort? Third, how much does the parody alter the purpose of the copyrighted work in comparison to its use in the parody? Is its purpose different from that of the original work?
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Nature of the Copyrighted Work
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Some works have stronger claims for copyright protection than others. For example, an “informational work” designed for education or information has a greater claim on the “fair use” protection than creative works whose purposes are to entertain. Also, courts generally are much stricter in interpreting “fair use” if the original work has not been published.
Amount of Copyrighted Work Used
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In determining the appropriate amount of the copyrighted material used in relation to the parody, it becomes a matter of whether that amount is “reasonable” in relationship to the purposes of the parody. There is no legally set percentage that makes a parody meet the "fair use" definition. The amount is weighed against the importance of the copyrighted material used before making a determination. In other words, was the amount used necessary in order to reach the aims of the parody and the message it is conveying?
Value of the Copyrighted Material
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In determining the value of the copyrighted material an examination of the extent of harm the parody will have on the original work is considered: both potential and actual financial damage to the original work as well as future works based on or related to the copyrighted material. If a parody in any way diminishes the potential sales of the copyrighted material, it has gone beyond the “fair use” definition.
Parody of "Oh, Pretty Woman"
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2 Live Crew made a “parody” of "Oh, Pretty Woman" by Roy Orbison and William Dees, and the case went from trial court to appeals court to the Supreme Court. All four of the determining factors were reviewed, and even though a substantial amount of the original copyrighted material was used and commercial gain was the purpose, the courts essentially decided that where a “parody” is concerned it meets the definition of “fair use” according to the Copyright Act.
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