Defenses to Copyright Infringement, Part III

Parody, a creative work which mimics or makes fun of another subject or creative work, provides another defense to copyright infringement.  Often classified as a form of Fair Use, and therefore subject to a form of the fair use test, parodies create unique legal issues not found in other forms of copyright defense.

A parody makes fun of an original subject or creative work primarily by means of imitation or distortion.  The law recognizes humor as a form of criticism (and therefore potentially within the Fair Use Doctrine), even when entertainment is the sole objective of the parody.

Parodies seldom use the original work in its entirety.  More frequently, parody finds comic effect in significant (and sometimes offensive) distortion of the original work.  This creates two potential infringement issues: direct infringement of the right to copy and violation of the copyright holder’s moral rights to protect the original work against mutilation and distortion.

Courts evaluate potential parody defenses using a modified form of the fair use test (as previously discussed in Life’s Not Fair – But Certain Uses Are: Defenses to copyright infringement, Part II).  “Parody” is generally a favored “type and character of use” although courts are less likely to protect parodies created for economic gain.     

Unlike other forms of fair use, parody cannot succeed unless the listener or viewer can identify and recognize both the original work and the humorous nature of the parody.  Courts have modified the standard fair use test to require special proof of these critical elements.  A court evaluating the “type and character” of a use will require the creator of the parody to prove that people recognize the original work within the parody.  More importantly, the creator must prove that the comical nature of the parody is “reasonably evident” to a person seeing or hearing the work.  This does not mean that viewers must find the parody funny.  On the contrary, the law has carefully and purposefully abstained from evaluating whether or not a parody “succeeds” as a humorous work.

Parody, like other forms of fair use, can prove difficult to evaluate even for skilled legal professionals.  Some parodies successfully incorporate almost all of the original works they satirize, while others use only miniscule portions of the original.  As a general rule, a parody should use only as much of the original as the intended audience will require to recognize the parody as a play on the original work.

©  Susan Spann, 2005