This article actually argues against parody being included under the fair use clause, saying that the treatment should be very narrow and should not include my definition of satire (or works that parody others to attack a third). Posner claims that use should only be fair when the costs of transacting with the copyright owner over permission to use the copyrighted work would exceed the benefits of transacting. Posner argues three specific points:

1. Fair use should only provide a defense to infrigement if the work is a parody, not a satire.

2. The parodist should not be allowed to take so large a fraction of the copyrighted features as to make the parody a substitute for the original work.

3. The fact that a parodist appropriates a small amount should not be relevant to fair use.

Interestingly, Posner writes: "If all but one form of intellectual property is priced, dumping the remaining form into the public domain, where it can be used without being paid for, may cause the priced forms to be even more underutilized from a social standpoint. Underutilized and also underproduced, as potential buyers of this intellectual property switch to its free competitor."

However, if parody can be protected by fair use and satire cannot, Posner's argument suggests that everyone will switch to parody rather than risk or pay for satire.

The part of this piece that is important is the exploration of “substantiality”, what exactly it means and how it is used in the courts in regards to copyright infringement.  The author explains that there are multiple connotations that “substantiality” takes on in court.  The first connotation of substantiality as a “criterion of infringement involves the ‘ordinary observer’ test.”  Under this test it must “spontaneously and immediately” appear to the average person that the newly created work used or was based on the original.  This test is rough for obvious reasons.  Also, it would be almost impossible to ask the “average person” to tell right away the difference between material that is appropriated and that which is simply similar to the original.  The second connotation involves economics and has no relation to my thesis. The third connotation is almost the opposite of the first and is based on “literary analysis or classification,” or in other words an ‘expert opinion.’  This connotation is helpful in making ‘substantiality’ qualitative rather than quantitative, but not so helpful in that it often leads the court into “abstract literary speculations unrelated to the ends of the copyright law.”  The final connotation is that of ‘substantiality’ as a quantitative test, though this connotation is rejected.  The paper then goes on to show how these connotations of substantiality relate directly to parodies through examples.

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While much of this document is useful for my thesis in a peripheral sense, the section of most interest discusses parody.  It defines parody as something that is not just humorous, but critical.  It goes on to explain that “specifically, it is parody's criticism of the expression of the original that makes parody eligible for protection as fair use.”  Important to note is that satire and parody are not interchangeable, and the document offers the court case of Rogers v. Koons as an example of a time when the court failed to make this distinction and it changed the outcome of the case. This example shows how important it is to make such a distinction.

 

This document will be helpful for my thesis in defining my play as a parody.  First of all it explains how important it is to formulate a clear definition.  Furthermore it provides the tools necessary to make that distinction.  It clearly defines exactly what a parody is, and goes on to make the specific distinction between parody and satire, something I can model my argument off of.  The document also offers an example of defining a parody based on the four points of the fair use test which can also be helpful in defining my play as a parody that is protected by fair use.

In this article, Tushnet and Keller define parody and satire, and how such strict definitions can lead to problems. Like Long, they argue that such a clear definition can allow the court to almost choose which genre the works fall under, and therefore indirectly suppress what works are allowable. They go through a history of cases, including copyright and trademark, but I will concentrate on copyright as specifically relating to my project.

Therefore, Tushnet and Keller argue that the current mutually exclusive definitions of parody and satire should be forgotten. Instead, it is the critical insights that should be examined, without judging the merits of those insights the way parody or satire might. Otherwise, parody is favored unfairly over satire, suppressing one form of expression and promoting the other, which is not the purpose of the copyright laws.

In this article, Adriana Collado summarizes the distinction between parody and satire and the interpretation of this difference in fair use cases over time. Collado goes on to discuss the present state of the law, what the law should be, and possible solutions and compromises for satire, which is not currently mostly included under fair use provisions.

However, Collado also argues that by Supreme Court's own definition of fair use works ("for purposes such as criticism [and] comment"), satire should already been included. Satire has been defined as a commentary or critical work, one of the uses specifically enumerated in the Fair Use Doctrine, so it should technically be protected.

Since satire is currently not included under fair use, Collado discusses potential solutions and compromises, although none are very promising. Collado quotes Tom W. Bell, who suggests that copyright owners and secondary users should be able to opt out of copyright law and contract under a fared use system, although he fails to mention what would happen for satirists if copyright owners refuse to license (which would probably happen due to the self-esteem issue). Collado adds another possibility of courts requiring unauthorized satirists to pay copyright holders for actual damages sustained from the use of the copyrighted work, but understands that such a method might still dissuade satirists who cannot predict such a number in advance.

This blog on fair use, written by law professor Peter Friedman, covers many elements of fair use, including satire and parody. This page deals specifically with blog entries covering satire and fair use, including an excerpt from Andrew S. Long's "Mashed Up Videos and Broken Down Copyright," written for the Oklahoma Law Review. Friedman discusses how parody has more extensive coverage than satire under fair use, including the recent example of Little Brown's Good Night, Moon. Similarly to Dr. Juice's satire on The Cat and the Hat and the O.J. Simpson murder trial, this book will probably not be defensable under fair use due to its satiric rather than parodic nature.

Long's article includes a section on the effect os the parody-satire distinction, which discusses the confusion similar to Bridy's article about hybrids of satire and parody. Long even suggests that "this seemingly arbitrary distinction allows judges to find parody when it suits the results the wish to achieve." Hardly a promotion of progess that the Copyright Act is supposed to protect. Long also argues that the distinction between satire and parody ignores that satire must also transform the original work, which adds new, transformative meaning.

Michael Einhorn, Ph.D., suggests that licensing arbitration is preferable to the existing "all or nothing" method of fair use that currently exists for works that add new interpretation to existing works (ie parody and satire). If we vacate such rules, Einhorn argues, owners of intellectual property would be guaranteed compensation, producer incentives are great without the worries of punitive uncertainites, and collecting societies and licensing agents may emerge when tradable rights are defined. These would perhaps more effectively promote the progress of arts and sciences that the copyright laws are designed to do.

This argument follows Judge Kozinski's argument about changing the rules for satire, and not trying to apply fair use to the genre. Otherwise, the two options are too extreme: one party ends up getting the worst end of the deal, and the other party walks away almost unscathed.

Judge Kozinski delivered a lecture for the 1999 Donald C. Brace Memorial at Fordham University School of Law on November 11, 1999. His speech was published in the Journal of the Copyright Society of the USA in the summer of 1999.

In this speech, Kozinski addresses one of the controversial decisions of his court, the Ninth Circuit, about the case Dr. Seuss Enterprises v. Penguin Books. Penguin published a book about the O.J. Simpson trial, which was illustrated and wirtten to resemble a Dr. Seuss picture book. The Court ruled that Penguin's book was not fair use because it was satire rather than parody, meaning that it did not comment on Dr. Seuss's book but only used it as a springboard to comment on the O.J. Simpson trial.

Judge Kozinski, however, indicates that had he delivered the decision, it might have been different; although he does not want to criticize his colleagues, he doubts he "would have decided the case the same way." He examines the tradition of fair use theory in dealing with intellectual property, questioning when its protection starts to defeat the purpose of having it.

The most relevant part of his speech to my topic is when he discusses the importance of form to satire, even if the satire does not necessarily comment on the original work. As Supreme Court pointed out, restraining the form suppresses content; furthermore, he argues with the Supreme Court's decision in Campbell v. Acuff-Rose, who claimed that satire attempts to avoid the drudgery in working up something fresh. Instead, it takes "some creativity and work to write a sustained satirical pastiche that people will enjoy enough to pay money for." The satirist cannot latch onto any work to achieve their purpose, either, because something about the original fits or doesn't fit the subject.

Lastly, Judge Kozinski points out that our fair use laws leave something to be desired: either we deny fair use and enjoin the work out of existence, or we claim fair use and the work remains and the copyright owner has to pay the attorney fees. He suggests a remedy outside of the fair use doctrine, a question of appropriate remedy rather than fair use. In the end, the effect would be to "strip copyright owners of their right to control the uses to which their work is put, while strengthening their right to demand compensation for the value they create."

In this journal article, Annemarie Bridy discusses the history of satire and parody throughout a variety of cases, concentrating especially on the Campbell case. She argues that Justice Souter's decision entitles parodists more than satirists when deciding how much and what kind of borrowing is appropriate for fair use arguments. So, what happens when a parodic work "shades into satire?" Is it no longer classifiable and therefore defensible as a parody?

In order to answer this question, Bridy draws upon literary theory and the distinction of "indirect satire" and "direct satire" to argue that some satire (direct) is definitely not permissible under fair use, but others (indirect) should be. As is, the definitions of parody and satire seem to be mutually exclusive, which can draw unfair consequences for indirect parody. Instead of employing such a distinct definition between satire and parody, she argues that the distinction should be drawn between two types of satirical parody, eliminating the problems that result from a hybrid of satire and parody.

Daniel Green discusses the statuses of parody and satire under current Supreme Court guidance, including the uncertainity and variance among courts. He argues that satire is unequivocally the underprivileged of the two for fair use cases, although it is allowed in certain circumstances. For his article, he had three purposes: to differentiate between parody and satire, to prove that protection for satire under fair use is important for both copyright law and the First Amendment, and to recommend some methods to incorporate this view while leaving all current precedent (although his methods may be a bit extreme, due to his satire of Gulliver's "A Modest Proposal."

One of his crucial arguments occurs when he discusses the Dr. Seuss Enterprises v. Penguin books case. Green argues that the Court overly criticized the satirist because the satirist followed traditional satire, and that his point of transposing the childish style and moral content to the world of adult concerns was an important juxtaposition. It is difficult to conceive The Cat NOT in the Hat! harming Dr. Seuss Enterprises because the books appeal to entirely different markets; only because the book was satirical did it not earn protection.  Satire is still a valuable social criticism, just like parody.

Green goes on to outline five more guidelines that should be used to determine fair use, including subjective intent of infringer, manifested effects on  the market, injury, "value" of the satire, and relevance or necessity of appropriated work to the satire. This way, perhaps, satirists will be able to deliver their modest (or perhaps not so modest) proposals without having to become parodists.

In this 1986 Court case, Marvin Fisher and Jack Segal brought a suit against Rick Dees for infringing their song "When Sunny Gets Blue" with a parody song entitled "When Sonny Sniffs Glue." Besides infringement, they claimed unfair competition, defamation, and product disparagement. The Court decided that Rick Dees did indeed deserve fair-use protection because it was a parody.

The important points in this case are that every instance of parody defense must be considered individually, that a humorous or satiric work deserves protection only if the copied work is at least partly the target of the work in question, and that parodists will seldom get permission from those whose works are parodied. As they state, "The parody defense to copyright infringement exists precisely to make possible a use that generally cannot be bought" since "[s]elf-esteem is seldom strong enough to permit the granting of permission even in exchange for a reasonable fee." I would argue that the same is true of satires, even if they do not specifically comment on the original work, so they also need some form of protection or compromise for when the rights are denied. This follows Judge Kozinski's logic, so that satires are not stifled simply due to the nature of their work.

Acuff-Rose Music, Inc. filed suit against the members of the rap music group 2 Live Crew and company, claiming that 2 Live Crew's song "Pretty Woman" infringed their copyright in Roy Orbinson's rock ballad, "Oh Pretty Woman." Supreme Court ruled that 2 Live Crew did not infringe on "Oh Pretty Woman" because their song was a parody, and did in fact fall under the fair use clause.

This 1994 case is extremely important to my topic because it was one of the first to differentiate between satire and parody and how they deal with fair use. According to the Supreme Court's definition, parody is "the use of some elements of a prior author's composition to create one that, at least in part, comments on that author's work." It counts as fair use due to its critical nature. If the commentary "has no critical bearing on the substance or style of the original composition," on the other hand, it is satire, which does not have the same protection. In the Supreme Court's mind, satire should be able to stand on its own, and borrowing of another work is just to "avoid the drudgery of working up something fresh."

The most interesting aspect, however, is footnote 14, which allows that satire may in certain circumstances also fall under fair use (although these circumstances are much more narrow than for parody) if "there is little or no risk of market substitution."

In this case, Jeff Koons used Art Roger's photographs of his wife and eight puppies to create a group of 20 sculptures for a 1988 exhibition. Koons acknowledged that his source matieral was a notecard of Roger's "Puppies." Not only did he use Roger's idea, he also copied the expression: the composition, the poses, and the expressions. Koons claims that his work is fair use because he argues that "his scuplture is a satire or parody of soceity at large. He insists that 'String of Puppies' is a fair social criticism." The Court, however, ruled against him, saying that it does not comment on the original work.

For my essay, I will highlight the discussion on satire and parody. The Court agrees that both are "valued forms of criticism" and foster more creativity protected by copyright law. However, the Court also argues that the parody or satire must comment on the original work or there would be no limitation to fair use; credit must be given to the original work. The Court does not prevent Koon's expression, but says that Koon must recognize any such exploitation requires "paying the customary price." I agree with this assesment, and wonder if satire could somehow incorporate acknowledgment of its source, could it be treated more similarly to parody, ie as applicable to the fair use clause?

 

This book is at the opposite end of the spectrum, so to speak, from the previously-mentioned source.  In this book, Williamson and the other authors discuss music from an expertise on the art itself.  There is no mention of digital music, sampling, file-sharing, or other similar topics to be found anywhere in the book.  In their places are excerpts from sheet music and examples of lyrics.  They offer their expert commentary on subjects ranging from Chopin to Snoop Dogg, from Dante to the Beatles, and each is approached with the same level of intellect and scholarship.  Multiple chapters cover the creation of music from scratch – as told from the songwriter’s point of view, and it is this unique perspective that offers a new form of insight into the practice of digital sampling.

Another important factor in this work is the chapter entitled “Mimesis, Gesture, and Parody in Musical Word-Setting.”  This chapter not only explores the implications that a parody has on an original work but sets the framework for parody with an historical narrative about its origins.  At first, this seemed to be irrelevant to the topic of digital sampling and copyright law, but after further inspection, it became apparent that this knowledge is very important to the understanding of parody and its stance in copyright law. 

Words and Music discusses at length many different styles and genres of modern music, primarily “gangsta,” or hardcore, rap.  This genre is a unique example because not only is it arguably the heaviest on lyrical content out of all kinds of music, but also because it is notorious for its sampling practices and is quite possibly the realm in which the most copyright infringement cases take place.  Reading a scholarly assessment on such genres is especially helpful for this topic seeing as it provides a critical, but not condemning eye on the subject.  This is all-to-rare in today’s academic and scholarly publications, and to have a source such as this is very useful in the terms of this research paper. 

In the April 1992 case of Art Rogers v. Jeff Koons, Koons infringed copyright in his work String of Puppies which was a three dimensional color copy of a photographic original of Rogers' that he found on a postcard in a tourist shop. The sources I have researched question the boundaries of art and when it is and is not fair use, and in which ways the guidelines can really have a great effect in shaping this gray area. Koons is sometimes referred to as an appropriation artist: an artist who quotes elements from other works and creates a new version of the original. In the case I choose to focus on he does not alter the change enough, it is arguably an exact copy of the original with minor changes. I use a later case in Koons' career - Blanch v. Koons - as a source to highlight what is fair use, and the development of our understanding of it. In my final paper I would like to use this as a comparison. Identity and Koons' call to parody are also central to the fair use argument and thus I have chosen some sources that discuss these important aspects, as a means to both strengthen and weaken Koons' argument (that his work is based on parody).

This article is an important source bringing together the ideas we have been discussing in class about ownership, parody and the public domain.  It would be a very important source in discussing and interpreting the Koons v. Rogers case in more depth in terms of the public domain, the economic factors, and the First Ammendment Act.  The test for economic harm is whether the copy takes so much from the original that it "serves as a replacement for that original".  A photograph of String of Puppies in a gift store of an art gallery may very well do just that.  In other words people may be more incline to buy a postcard of the more famous artist, Koons' work, than from some less well-known artist, such as Rogers.

This book expresses clearly why Koons defense lost on the account of parody as fair use.  It goes through the four factors of fair use and explains why it breaches the doctrine comparing String of Puppies directly with the original black and white photograph by Rogers, Puppies.  It clarifies first and foremost that the copied work is not a parody of the original, as no one would have any idea of the object, Puppies photograph that Koons is parodying.  Secondly, fair use is more applicable to factual than fictional work, and Roger's work is a fictional piece.  The third factor, the amount and substantiality used are certainly breached, because Koons work is an almost exact copy of the black and white photograph.  Fourthly, whether the copy would affect the market of the original also seemed to fail meeting fair use standards.

Most importantly it clarifies why String of Puppies is not parody, and it points out why Koons v. Rogers is such an important case in the discussion of parody and what is fair use.

This is another court case focusing on parodies as they fit under fair use.  Air Pirates was sued by Walt Disney Productions for creating "a rather bawdy depiction of the Disney characters as active members of a free thinking, promiscuous, drug ingesting counterculture."  Walt Disney Productions won.  One of the points that added heavily to the decision was that “the defendants here could have expressed their theme without copying Disney's protected expression.”  The importance of this point is further discussed in the following paragraph.

 

The aspect of this case that is most important to focus on is the actual subject of the parody.  In other words, this case highlighted the importance of clarifying whether or not the newly created work actually parodied the original, or used the original to parody something else.  This could be used to argue that my work is a parody that fits under fair use definition.  Since the lyrics to Hotel California are used in my play Hotel Bermuda to create a parody of the song Hotel California rather than just to use the song as a medium for creating something funny parodying something else, it would be considered a ‘fair use’ parody. 

 

In Fisher v. Dees, Rick Dees is sued for using portions of Marvin Fisher and Jack Segal’s song “When Sunny Gets Blue” in his song “When Sonny Sniffs Glue.” It is upheld that Dees’ version is a parody which is defendable under Fair Use.  In arguing this case it was noted that the labeling of a work as a ‘parody’ does not single-handedly defend it and that it “must be considered individually, in light of the statutory factors, reason, experience, and, of course, the general principles developed in past cases.”  The main arguments against Dees in this case included the subject of the parody, the propriety of Dees’ conduct, the purpose and character of the use, the economic effect of the use and the amount and substantiality of the taking.  All of the previous arguments were rejected with sufficient reasoning and the court decided Dees’ song “is a parody deserving of fair-use protection as a matter of law.”

 

This is relevant to my thesis in determining whether or not my work is a parody that falls under Fair Use.  The arguments used in Fisher v. Dees can be applied to my work to help in the decision.  Fisher v. Dees is most often cited as an example of a case where the economic issue was important, specifically in respect to whether or not the newly created work “fulfills the demand for the original.”  It presents this as one of the more important factors involved with regards to parodies.  Using this argument would support a claim that my work is a parody that is protected by fair use as my work (a play) does not “fulfill the demand for the original (a song).”

 

Campbell v. Acuff-Rose Music (92-1292), 510 U.S. 569 (1994)

The rap group 2 Live Crew used a sample of Roy Orbison and William Dees' "Oh, Pretty Woman" for their track, "Pretty Woman", on their album As Clean As They Wanna Be without Orbison's permission. This led to a copyright infringement case being filed by Orbison and a ruling by the Supreme Court which has great implications for both rap and music as a whole. 2 Live Crew's defense was that their song was a parody, and as such should be seen as fair use since a parody must borrow heavily from the original artwork in order to spoof it.

The court went through the 4 factors that typically determine fair use as outlined by the Copyright Act of 1976. On the first factor (The purpose and character of the use) the court determined that since 2 Live Crew's version of the song was fairly transformative, this outweighed the commercialism that would rule against fair use. As for the second factor (the nature of the copyrighted work), the Supreme Court decided that because the song is a parody, it intrinsically borrows heavily from a public, copyrighted work, and thus does not put too much weight on this factor for determining fair use. The third factor, (the amount and substantiality of the portion of the original work used), the court decided that as a parody, it was necessary for 2 Live Crew to borrow the "heart" of the work, however they differentiated their song enough from Orbison's by changing the lyrics heavily. For the fourth factor, (the effect of the use upon the market (or potential market) for the original work), they determined that it is unlikely for this work to substitute the original, and thus would not harm Sony's market.

This case is very important to music because it was one of the earliest to set down guidelines as for sampling in music, though it was a parody. Also, at this point, these types of cases were rare for courts to see, so the legislation for ruling on them was ill-defined. It was determined that parodies can not be automatically determined by an aggregate set of laws and must be tried on a case to case basis. Since rap music often samples in ways like 2 Live Crew did, this ruling essentially let the reigns free for other artists to sample music by diminishing their fears of it not being fair use. However, this is a parody and majority of rap songs are not, meaning that they are given less leeway when it comes to fair use.

By Judge Alex Kozinski and Christopher Newman. Published in the Journal of the Copyright Society of the USA, Volume 46, No. 4, Summer 1999, pages 513-530

This article is a speech given by Judge Kozinski, a member of the Ninth Circuit Court of Appeals. While the speech is an overall discussion about the legitimacy of fair use, there is a significant portion devoted towards the idea of satire and parody and its place in fair use.

Kozinski disagrees with Seuss's thought that "The Cat NOT in the Hat!" is an attempt "to avoid the drudgery in working up something fresh." Instead, Kozinski feels that "It’s easy enough to spew a few lines of impromptu Seussian doggerel, but it takes some creativity and work to write a sustained satirical pastiche that people will enjoy enough to pay money for and recommend to their friends."

In general, Kozinski disagrees with the Bisceglia thought that a satirist can just pick a new work to focus on if he cannot acquire a license to the original work. He states:

"Even if the original work is used only as a vehicle, not just any vehicle will get you where you want to go. You can only get so many chuckles by mimicking something familiar. When this kind of satire really works well, it’s because there is something about the original that fits - or pointedly doesn’t fit - the subject"

Kozinski's stance demonstrates a willingness to grant more freedom to satirists. Similar to the Collado article, Kozinski is cognizant of the creative process and is aware that there are not always other options for satirists to choose from to make their point. In fact, Kozinski adds that "the fundamental premise of our copyright law is that the best way to encourage creation of valuable works is to let authors capture the market value of those works." It is the point of satire to create a different view on a well known material, and by restricting it too much, the spirit of copyright law will be broken.

Overall, Kozinski is a strong supporter of more fair use for satire and disagrees with his colleagues of the Ninth Circuit regarding the Seuss case.

By Adriana Collado. Published in Journal of Technology, Law, and Policy, Vol. 9, Issue 1, June 2004.

Collado's article goes through the differences between parody and satire as stated by various court cases. This analysis includes a look into the Campbell and Seuss cases. With regards to the Seuss case, Collado states that the Ninth Circuit "unnecessarily narrowed the Campbell holding and set a precedent inconsistent with the goals of copyright law and with the Campbell decision itself" reaching the same conclusion as the Tushnet article.

Collado then analyzes satire as a fair use and how Seuss was inconsistent with Campbell. Specifically, Collado takes issue with the conclusion that there would be significant market harm from "The Cat NOT in the Hat!" 

"[I]t seems unlikely readers would regard “The Cat NOT in the Hat!” as a substitute for the original, especially since the works target different audiences. While the original Dr. Seuss work is sold in the children’s section of the bookstore, “The Cat NOT in the Hat!” would likely be sold in the adult humor section. Furthermore, the fact “The Cat NOT in the Hat!” was labeled as a parody on its front cover and the author’s name was clearly depicted reduced the possibility readers would confuse or substitute the secondary work for the original."

By Footnote 14 of the Campbell decision (cited above), Collado concludes, there should have been fair use protection for this satire as the potential for market harm was slight.

Collado is a proponent of more freedom for satires. She disagrees with the Bisceglia opinion that satirists can "shop around" for other material if they cannot find a way to make a comment on the original work. Instead, Collado feels that a satirist's ideas are "often intertwined with their underlying source material" and if a satirist must look elsewhere for material, "the idea might not be created at all, thus generating a result...contrary to the goals of copyright law." Finally, Collado argues that satires not only do not displace the market, but could even "increase demand for the copyrighted work" by increasing interest in the original .  

Overall, Collado's article provides a well-reasoned insight into the reasons why satire should be given fuller fair use protection as opposed to the Seuss case.

By Jason M. Vogel, 20 Cardozo Law Review, pages 287-319

Vogel's article analyzes the Seuss case and how it matches up with the Campbell reasoning.

By Julie Bisceglia. Found in ASCAP Copyright Law Symposium, Volume 34, pages 1-34, 1987.

Bisceglia's article discusses in great detail the legal standing of parody by analyzing numerous cases that involve parody and/or satire. After concluding that there are contradictions and inconsistencies regarding the nature of fair use as it applies to parody, Bisceglia offers her own legal definition of parody, which includes "the parody must criticize the source text"

 Assuming that the definition of satire is a work that uses a copyrighted work to comment on something else, Bisceglia takes a view that satire should not have protection under fair use. Bisceglia says that "a parodist must have good reason for encroaching on a copyright owner's territory...using a copyrighted work to snipe at other targets does not involve the same urgency."

 Furthermore, Bisceglia does not see her view as a matter of restricting creativity. In her opinion, satire or parody "does not depend on a single text" and if the author cannot acquire the necessary license he should be able to find some other source for his work.

 Bisceglia's overall point is very restrictive of satire. Under her definition, most satire would have no legal standing to claim fair use.

CAMPBELL v. ACUFF-ROSE MUSIC, INC. (510 US 569, Supreme Court, 1994)

Widely regarded as the landmark case for parodist, Campbell v. Acuff-Rose gave the law a better definition where parody and satire stand in fair use. In brief, the case involves the rap group 2 Live Crew parodizing Roy Orbison's song "Oh Pretty Woman" for a rap version called "Pretty Woman". Specifically, 2 Live Crew used the opening bass riff and the phrase "Pretty Woman". Orbison sued for infringement, 2 Live Crew claimed fair use. The district court ruled in favor of Campbell, the appeals court ruled in favor of Acuff-Rose, and the Supreme Court ruled in favor of Campbell.

There is insufficient space to discuss in full the Court's view on parody, satire, and the fair use clause. But a few things are worth noting:

1) The Court draws a line between parody and satires and how they have different abilities to claim fair use.

"If, on the contrary, the commentary has no critical bearing on the substance or style of the original composition,...the claim to fairness in borrowing from another's work diminishes accordingly (if it does not vanish)...Parody needs to mimic an original to make its point, and so has some claim to use the creation of its victim's (or collective victims') imagination, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing."

This statement implies severe limitations on satire's ability for fair use, but does not shut it down entirely. This is a further narrowing of the Elsmere ruling and actually narrows further than Rogers.

2) The Court does provide an out for satire to have a stronger claim to fair use protection. Specifically, footnote 14 (which is actually refering to the previous paragraph)

"[W]hen there is little or no risk of market substitution...taking parodic aim at an original is a less critical factor in the analysis, and looser forms of parody may be found to be fair use, as may satire with lesser justification for the borrowing than would otherwise be required."

Thus, if there is little market competition between the satiric version and the original, satire has a much stronger claim to fair use.

3) In a case where a work has both "satiric" and parodic work, the satiric part does not impact the fair use defense.

"The Act has no hint of an evidentiary preference for parodists over their victims, and no workable presumption for parody could take account of the fact that parody often shades into satire when society is lampooned through its creative artifacts, or that a work may contain both parodic and nonparodic elements."

Thus, in keeping in line with Rogers, if even a part of the work can stand as commentary on the original, it has a stronger ability to claim fair use, even if the majority of the work is satiric.

In summary, while the Supreme Court does place more limitations on satire and less on parody, there are many means by which satire can claim fair use successfully. 

    In Chapter 5 of Free Culture, Lawrence Lessig lays out anecdotes and archetypes of all manner of piracy.  The duplication of copyrighted CDs and DVDs in foreign markets is touched upon, but one of the main salient points is his defense of Peer-to-Peer file sharing networks, the groundbreaking networks and servers which made Section 512 absolutely necessary and the rulings on which still protect YouTube from harm.

    One of Lessig’s major talking points is his attribution of the four archetypal uses of P2P networking: stealing music, sampling music before buying, access to abandonware or other copyrighted content that is no longer available by traditional means, and those who search for content that has no copyright or a Creative Commons license and is meant to be shared.

    This is a highly utopian view of both P2P networking and the internet, but at the very least interesting to consider.  Lessig goes on to discuss drops in CD sales and later Jack Valenti’s ridiculous claims about VCRs as “tapeworms,” just waiting to drive the industry down.  If anything, the VCR and file-sharing networks both paved the way for the kind of content generation and also server networks that my final project will use and draw attention to.

    This letter shows how simply ludicrous copyright holders can be concerning their properties.  This letter was sent in 1996 to a Manuel J. Perez, who displayed on his MIT homepage an image including characters from the then-lucrative children’s series, Mighty Morphin’ Power Rangers.  The letter was sent by legal representatives of Saban Entertainment, Inc.

    I mention this letter because it displays a highly ridiculous side to the way that copyright holders will sometimes deal with new technologies, and specifically with internet culture.  Disregarding any quality of judgment, Saban sends a cease and desist order to a member of the world wide web who is certainly not, as they deem, practicing any “unfair competition.”

    In fact, at the very least all that Perez’s sit was doing was adding a very small amount of free advertising for the Power Rangers brand and intellectual property.  This is an oft-overlooked factor of the YouTube debate.  When a rogue parodist concocts a transformative trailer for The Shining, for instance, it has only a positive effect on our view of both Stanley Kubrick’s opus and even Peter Gabriel’s “Salisbury Hill.”

    Similarly, the media that I will sample could, upon a strike of popularity, only benefit all parties.

In this case, the Supreme Court rules 2 Live Crew’s commercial parody of a Roy Orbison song is protected under the auspices of fair use.  The court found the new song to be significantly transformative, both building upon the earlier work as a new entity and sufficiently parodying the original in a way that was ruled as fair use.  The court also found a portion of Section 107, “the amount and substantiality of the portion used in relation the copyrighted work as a whole” to be a key factor, deciding that the small amount of the song actually used was significantly small enough, even if that portion displayed the heart of the work.  “Even if 2 Live Crew's copying of the original's first line of lyrics and characteristic opening bass riff may be said to go to the original's 'heart,' that heart is what most readily conjures up the song for parody, and it is the heart at which parody takes aim.”

    I reference this case in relation to my project because this case deals with two important factors: parody, and what is said to be the “heart of the work.”  My project will be clearly defined as parody, while at the same time drawing from key thematic elements of the original works, which creates the potential for the project to be deemed as taking the heart of the work.

    This is also an issue as the audio track of my project will be a continuous copyrighted work, taking the original in its entirety and transforming it to a new medium of video.

FISHER V. DEES (794 F.2d 432, 9th Circuit, 1986)

The case of Fisher v. Dees provides an example of the duality of satire and parody. The case was brought by Marvin Fisher and Jack Segal, who created and composed a song called "When Sunny Gets Blue", described by the court as "a romantic and nostalgic ballad". In 1984, Rick Dees, a comedian, contacted Fisher for permission to make a parody of the song for a comedy album. When Fisher declined, Dees went ahead and recorded the song anyway. Fisher sued, and the District Court ruled in favor of Dees. On appeal, the 9th circuit upheld the district court's ruling.

In the ruling, the Court reaffirms the statement made in Elsmere v. National Broadcasting Company with regards to the "conjure up" test. As with Elsmere, the court decided that a parody is entitled to use at least enough material to "conjure up" the original. This concept is quoted again in the

To be annotated later

To be annotated later

To be annotated later.

Annotated later.

With this project, I'll be looking at various cases, and articles discussing them, that have affected the conception of fair use as it regards parody.

THE FAIR USE COMMERCIAL PARODY DEFENSE AND HOW TO IMPROVE IT -- Jonathan M. Fox, 46 IDEA 619, 2006 (LexisNexis -- SEARCH IN “LAW REVIEWS” USING THE TITLE IN THE “KEYWORD” FIELD)
    In this article, Fox lays out the divergence between the dictionary definition of parody and the legal one, and concludes that “Supreme Court's current definition of parody has allowed certain works, completely devoid of the elements of literary parody, to qualify as fair use parodies” (I). This is because he argues that the court has given parodists too much flexibility by interpreting too broadly what a “parody” is.

    Fox writes, “It appears that the purpose of fair use is to be fair to the party accused by the copyright holder of infringement” (V). This is because of the disconnect between what dictionaries say is “parody” versus what the courts say it is:

Although most would find 2 Live Crew's version of Pretty Woman to be at least mildly amusing, the Supreme Court made it very clear that the work's humorous component was not what made the song a fair use. Instead, it was primarily the song's transformative character coupled with the fact that it commented on or criticized the original. Both of these characteristics that won the song fair use protection are only tangentially related to the traditional definition of parody. Similarly, in its decision in SunTrust Bank, the Eleventh Circuit established that "judges need not set themselves up as arbiters of whether the product is funny. (V.A)

Fox then goes on to list ways in which copyright law can be changed to curtail the possibility that courts will grow too lenient with parodies. “Although commercial parodies are deserving of protection from a First Amendment perspective,” Fox writes, “their strong commercial status renders their position in the realm of copyright law decidedly more suspect” (VI).

    Fox makes the pertinent observation that legal definitions need to conform to dictionary ones, or else it leaves future courts with little ability to analyze and apply precedent. Furthermore, he argues that that if parodists are all but immunized from infringement suits, then it has the possibility to negatively affect the progress of arts and science by curbing the creation of new works--after all, it would essentially negate the purpose of copyrights, to give security to authors that their work will not be stolen, if all anyone has to do to copy it is to claim fair use through parody.

The Fair Use Doctrine in the U. S. American Copyright Act and Similar Regulations in the German Law -- Holger Postel and Jean-Luc Piotraut, 5 Chi.-Kent J. Intell. Prop. 142, Spring 2006 (LexisNexis -- SEARCH IN “LAW REVIEWS” USING THE TITLE IN THE “KEYWORD” FIELD)
    This article analyzes the differences between American and German copyright laws as they relate to fair use. In large part, the differences amount to different interpretations based on natural rights. For instance, the article notes, “Campbell shows that there is no distinction between musical work and other forms of work as long as the purpose is in accordance with one of the criteria set out by section 107. While the German Copyright law does not allow an artist to use musical works without the licensee of the copyright holder, the American law does not recognize this distinction” (II.1).

    Both the American and German legal systems interpret parody narrowly, mainly out of pragmatism: if they do not, it would “open the floodgates” to excessive parodying (which “ THE FAIR USE COMMERCIAL PARODY DEFENSE AND HOW TO IMPROVE IT” argues is already happening). However, as the article notes, “The dilemma courts face is that parody is a form of art and courts are generally cautious in defining art” (II.2). The dilemma also entails the problem of how do you protect copyrighted works on the one hand, while not stifling creative and transformative parodies on the other.

    Interestingly, German law does not allow for music parody at all, though it does allow for other forms of fair use and parody similar to those in the US, including videotaping, photocopying, quoting, and news reporting. However, often American and Germans laws have similar ends, though their means differ.

    Ultimately, both German and American laws will begin to come together more and more than in the past because of globalization. Especially as a result of the internet, the rules are changing and the world is getting smaller and smaller, and countries will soon no longer be able to have legal structures that are vastly different for fear of being incompatible with a neighbor, as evidenced by the streamlining of laws and codes with the Berne Convention the European Union.

FAIR USE OF COPYRIGHTED MATERIAL IN ADVERTISEMENT PARODIES -- A. Hunter Farrell, 92 Colum. L. Rev. 1550, October 1992
    This article summarizes and analyzes parodic advertisements such as the Coors beer commercial parodying the Energizer Bunny. However, the article notes that there has been an inability to uniformly agree how best to apply fair use criteria on these cases--something which is touched upon in “Fair Use Commercial Parody Defense.” However, another difficulty is the weighing of the creative and transformative value of the parodic commercials with their innate commercial nature. Two years after this article was written, Campbell attempted to put to rest the question of whether or not parodies can also be commercial; however, this has not always been the case (see “ The Wind Done Gone, the Law Done Wrong?”).

    Though many of the fair use considerations in the article are outmoded because it was written before the Campbell decision, the issue of competition is still valid. Farrell writes that “In the context of advertising, however, it is extremely unlikely that a parody would usurp the demand for the original work. Usually, advertisements are extremely brief and serve a very specialized purpose: promoting products. Consumers will rarely reduce consumption of a copyrighted work to consume more of an advertisement, especially given the common perception that most advertisements are forced upon the public” (III.D).

    This is an interesting distinction between advertisements and other forms of creative work; the latter one must go and actively seek out, whereas the former is thrust upon the audience. In many ways, it can be thought that commercials may in fact grate on viewers and turn them off to the product being sold. The question then becomes this: are viewers turned off to the product being sold by the offending advertisement, or by the product being parodied? However, the fact that many commercial parodies do not compete in the same market as the originals may still render the former question moot.

THE CAT IN THE HAT'S LATEST BAD TRICK: THE NINTH CIRCUIT'S NARROWING OF THE PARODY DEFENSE TO COPYRIGHT INFRINGEMENT IN DR. SEUSS ENTERPRISES v. PENGUIN BOOKS USA, INC. -- Jason M. Vogel, 20 Cardozo L. Rev. 287, September 1998
    This article analyzes the decision of infringement against the publisher of the book The Cat NOT in the Hat!, a satiric account of the OJ Simpson double murder trial, written in the style of Dr. Seuss. The case was ruled an infringement because The Cat NOT in the Hat! used Dr. Seuss conventions as a vehicle for commenting on OJ Simpson; Campbell v. Acuff-Rose established that to be considered parody and not satire (which is not covered under fair use--see “Unfair Use”), a work must criticize of comment on the work it is copying. The problems with this is that:

The argument that the commentary element should be an absolute prerequisite to fair use, thereby dispositively disqualifying satires, suffers four significant shortcomings, however. First, distinguishing between parodies and satires involves arbitrary judicial line-drawing, as there is no clear standard for how closely the work must focus on the original to qualify under "parody" status. ... A second significant shortcoming to the parody/satire dichotomy is the fact that satiric works causing inherently offensive associations to be drawn to the underlying work are as unlikely to be licensed as those that directly criticize the underlying work. ... A third flaw of the parody/satire rule is the notion that should the copyright owner refuse to license a satire, the satirist will be able to find other copyright owners who are more amenable to his use of their works. ... Finally, it is unreasonable to suggest that potential authors will be dissuaded from creating new works solely because their product may later be used as "unpermitted" and uncompensated elements of a satire. To the extent that the satire does not serve as a market substitute for the original, its presence will result in no cognizable economic loss to the original author. (B.III)

    Vogel proposes that all satires fall under fair use consideration, much like parodies. This is because satires behave in much the same way that parodies do, and should be afforded the same rights: “Because inherently offensive satires implicitly analogize the external target of their criticism to the material being borrowed, a reciprocal analogy can be inferred. For example, The Cat NOT in the Hat! implicitly asserts that, in some respects, O.J. Simpson is like the Cat in the Hat. This creates a reciprocal implication that the Cat in the Hat is somewhat like O.J. Simpson” (IV). He goes on to outline many of the arguments for satire as fair use discussed in “Unfair Use.”

    This article makes some good points that fit in nicely with the narrative for this project that satire is not only commentary--and thus falls under free speech and fair use protections--but that it meets the other prerequisites for fair use by virtue of its similarity to parody. The courts are beginning to take note of this, as evidenced by the Campbell decision, and it is probably only a matter of time before they rule thata satire is substantially similar to parody.

SUNTRUST BANK v. HOUGHTON MIFFLIN COMPANY (268 F.3d 1257) -- LexisNexis
    This is the Eleventh Circuit appeal of the of the case brought by Suntrust against Houghton Mifflin charging infringement on Margaret Mitchell’s Gone With the Wind by Alice Randall’s The Wind Done Gone. In this case, Judge Birch ruled in favor of Houghton Mifflin by virtue of First Amendment rights. Interesting, he writes in a footnote:

I believe that fair use should be considered an affirmative right under the 1976 Act, rather than merely an affirmative defense, as it is defined in the Act as a use that is not a violation of copyright. ... However, fair use is commonly referred to an affirmative defense, see Campbell v. Acuff-Rose Music, Inc. ... Nevertheless, the fact that the fair use right must be procedurally asserted as an affirmative defense does not detract from its constitutional significance as a guarantor to access and use for First Amendment purposes. (n3)

Birch rules that The Wind Done Gone had value beyond what fair use laws afforded it because the nature of the work was a social commentary meant to create dialogue and end the myths about the Antebellum South. “Freedom of speech requires the preservation of a meaningful public or democratic dialogue,” he writes (II.B). In essence, Birch held that Randall was merely continuing a discussion that Mitchell had established; by adding her own expression, Randall was free to “use or discuss the idea” (II.B.1).

    This was a landmark, but controversial decision, as discussed more in “ The Wind Done Gone, the Law Done Wrong?” and tangentially in “Fair Use Commercial Parody Defense.” I agree with the outcome, though I’m undecided about the rationale. Instead, I think a less controversial justification for ruling for fair use would be to allow satires--which The Wind Done Gone is more of than a parody--the same protections afforded to parodies. This is discussed further in “Unfair Use.”

CAMPBELL v. ACUFF-ROSE MUSIC, INC. (Supreme Court, 1994)
    This case is perhaps the most important decision by any court on fair use and parody. Singer Roy Orbison brought suit for copyright infringement against rap group 2 Live Crew for copying the opening lyrics and beat to Orbison’s song “Oh Pretty Woman.” Going all the way to the Supreme Court, Justice Souter held for the unanimous court that 2 Live Crew’s song qualified for fair use protection because of its parodic nature. Drawing a shape contrast with the decisions in Disney v. Air Pirates and Original Appalachian Artworks v. TOPPS Chewing Gum, the court ruled that “Even if 2 Live Crew’s copying of the original’s first line of lyrics and characteristic opening bass riff may be said to go to the original’s ‘heart,’ that heart is what most readily conjures up the song for parody, and it is the heart at which parody takes aim” (e). This is because 2 Live Crew took parts of “Oh Pretty Woman” and transformed them into an original entity.

    Souter notes that “It is uncontested here that 2 Live Crew’s song would be an infringement ... but for a finding of fair use through parody” (II). This is because parody, by its very nature, requires the taking of a certain amount of an original work. Since the purpose of parody is to criticize, a parody must be allowed to copy enough of a work that audiences will be able to recognize it as a parody; to take too little would muddle in the audience’s mind whether or not something is a parody. This is thus a drastic departure from Disney v. Air Pirates, which ruled that, though the “best parodies” required substantial similarities to the original, creating the “best parody” is not an exemption from infringement.

    The court also laid out the legal distinction between parody and satire: “For the purposes of copyright law ... is the use of some elements of a prior author’s composition to create a new one that, at least in part, comments on that author’s works. ... If, on the contrary, the commentary has no critical bearing on the substance or style of the original composition ... the claim to fairness in borrowing from another’s work diminishes accordingly” (A). Put another way, and illustrated in Dr. Seuss v. Penguin Books, a parody comments upon what it is mocking, while a satire copies as a vehicle for mocking another target.

    The reason this is such a landmark case is that it was a monumental victory for free speech. As noted from “The Wind Done Gone, the Law Done Wrong?”, the primary nature of copyright law is to advance the progress of arts and science; limited monopolies are one vehicle, but they are not the only one. And also noted elsewhere, the limited monopolies often serve to limit free speech toward the advancement of arts and science. However, to counterbalance this is parody (and, hopefully, soon satire--see “Unfair Use”), the main purpose of which is to comment or critique another work. Limiting parodic fair use stifles criticism and free speech; however, allowing it not only advances free speech, but also advances the general arts and science because, as Souter noted, parody is by its nature transformative and creates new work.

Unfair Use: The Lack of Fair Use Protection for Satire Under § 107 of the Copyright Act -- Adriana Collado, Journal of Technology: Law & Policy (June 2004)
This article gives a summary of fair use and parody decisions and attempts to show how satire should be protected under fair use because it is transformative. The primary argument against protecting satire under fair use is that “owners are likelier to allow use of their works in satire because satires do not target the copyrighted works directly” (II.A). This, of course, ignores the problem encountered in cases such as Dr. Seuss Enterprises v. Penguin Books USA, where, for instance, “satirists that propose using copyrighted works to criticize something else in an offensive manner are not likely to be granted licenses because copyright owners may fear the use will reflect negatively on their works” (IV.A). That is, courts have reasoned that because specific copyright holders aren’t being directly targeted by satirists, they will gladly license their work.

This line of reasoning willfully ignores reality; however, this reasoning still should not preclude fair use of satire, as, Collado notes, “reputational harm is not an interest that copyright law is designed to protect” (IV.A). Certain copyright holders, such as Disney and Dr. Seuss, notoriously guard their property against parody. Yet because of the rich nature of these works, they are ripe for parody and satire; by disallowing fair use of satire, the law in effect stifles the free speech and creativity of new authors. “The assumption,” writes Collado, “a satirist can ‘shop around’ for copyrighted works to employ in his satire ignores the nature of the creative process” (IV.C).

Finally, we may be headed towards a future where a court will rule that satire is protected under fair use. As Collado notes, “In Campbell [v. Acuff-Rose Music], the Supreme Court defined satire as ‘commentary.’ In turn, the Fair Use Doctrine states ‘fair use of a copyrighted work ... for purposes such as criticism [and] comment ... is not an infringement of copyright’” (V). If a court were to acknowledge this--and the Supreme Court has nearly already done so with Campbell--then it would place satire under the fair use umbrella alongside parody. This would have an enormous impact on society; however, because most satire, like parody, does not compete in the same market as the original work, there can be little argument besides greed and prudishness against this result. Yet, as noted before, prudishness cannot be a legal justification for stifling free speech; as for the competing markets: satires and parodies, by their very natures, nearly never compete in the same markets as their progenitors, which would render moot the main argument against their fair use.

The Wind Done Gone, the Law Done Wrong?: Fair Use and the First Amendment in Suntrust Bank v. Houghton Mifflin Co. -- Sarah A. Gessner, 35 Conn. L. Rev. 259 (Fall 2002)
    In this article, Gessner lays out the case of Suntrust v. Houghton Mifflin, which involved an infringement suit brought by the estate of Margaret Mitchell, author of Gone With the Wind, against Alice Randall, who wrote The Wind Done Gone. The latter was written as commentary and criticism of the former, which glorified the Antebellum South while denigrating African Americans.

    Despite the fact that The Wind Done Gone’s publisher, Houghton Mifflin, marketed the work as parody, Suntrust, which represented Mitchell’s estate, claimed that the work competed in the same market as Gone With the Wind, which still remains popular in all its forms. The article notes that “The Mitchell Trust had authorized sequels to Mitchell’s book in the past, and that this was an important market for them” (II.B.1.a). This, however, ignored the fact that the two books catered to completely different markets; further, the title The Wind Done Gone is easily construed to be parodic and indicates to readers that the book meant to be a departure from the conventions of Gone With the Wind. To wit, the article notes that “Houghton Mifflin contended that ‘to the extent that [Gone With the Wind’s] fully developed characters have analogs in [The Wind Done Gone], [The Wind Done Gone], as part of its parody, presents them as flat, one-dimensional characters who are not substantially similar to the characters created by Margaret Mitchell” (II.B.1.b).

    The district court ruled for Suntrust, but the decision was later overturned by the Eleventh Circuit Court, which argued for Randall’s First Amendment rights to free speech: “The Eleventh Circuit used the First Amendment to impose a limitation on The Mitchell Trust’s copyright in order to give the public ‘access to Randall’s ideas [and] viewpoint in the form of expression she chose’” (II.B.3). Writes Gessner: “The public interest should be taken into account when a determination of fair use is being made. If the work in question serves the public interest by illuminating an idea or bringing new ideas/interpretations to the forefront, it should be deemed a fair use if it does not substantially effect [sic] the market for the original. ... Randall’s book highlights the social injustices of Mitchell’s book; it exists as a foil to the original and in no way seeks to assume the place of the original in the minds of the readers” (IV.D.V).

    This is an important argument because it lies at the heart of the purpose of copyright: the progress of arts and science. In as such, free speech considerations that affect the overall progress must take precedent over copyrights and be immune from infringement prosecution.

Walt Disney Productions v. Air Pirates (581 F.2d 751) -- LexisNexis
This Circuit Court case from 1978 involved a suit by Disney alleging copyright infringement of its characters by Air Pirates for its adult counter-culture comic book. Air Pirates mocked Disney’s Silly Symphony books with its own Silly Sympathies line of comics; the defendant also parodied well-known Disney characters such as Toby Tortoise and Max Hare by changing their personalities. Judge Cummings deliberated back and forth over both (1) whether or not a character from an illustrated book could be copyrighted, and (2) whether or not the change in personalities of the characters was enough to warrant a claim to fair use.

Ultimately, Judge Cummings ruled in favor of Disney, writing that

Defendants' assertion that they copied no more than necessary appears to be based on an affidavit, which stated that ‘the humorous effect of parody is best achieved when at first glance the material appears convincingly to be the original, and upon closer examination is discovered to be quite something else.’ The short answer to this assertion, which would also justify substantially verbatim copying, is that when persons are parodying a copyrighted work, the constraints of the existing precedent do not permit them to take as much of a component part as they need to make the "best parody." Instead, their desire to make the ‘best parody’ is balanced against the rights of the copyright owner in his original expressions. [7]

Though he cited as important Air Pirates’ defense that their characters--though similar in appearance and clearly meant to mock Disney’s characters--”parodied [Disney characters’] personalities, their wholesomeness and their innocence,” Judge Cummings’ ruling was ultimately decided primarily by the third copyright factor: the amount and substantiality of the portion taken.

This was an important ruling because it was cited in Original Appalachian Artworks v. TOPPS Chewing Gum, and in that case helped with the ruling that the Garbage Pail Kids were a copyright infringement of the Cabbage Patch Kids. The precedent set here that a parody cannot be the “best parody” without copying more than fair use allows was later overturned in Campbell v. Acuff-Rose Music, which established that sometimes a parody must be the “best” in order for it to qualify for fair use.

ORIGINAL APPALACHIAN ARTWORKS v. TOPPS CHEWING GUM (642 F. Supp. 1031) -- LexisNexis
Following the ruling of copyright infringement against the defendant in Disney v. Air Pirates, the court ruled that TOPPS infringed on the Cabbage Patch Kids with their parodic trading cards, the Garbage Pail Kids. Partially following the precedent set in Disney v. Air Pirates that taking too much in order to make the “best parody” could constitute infringement, Judge Tidwell focused on the first and fourth copyright factors: the purpose and character of the use, and the effect of the use upon the potential market, respectively.

As to the first factor, Judge Tidwell argued that the two products were competing against each other in the same market; however, this ignores the obvious: namely, that the Garbage Pail Kids catered to a wholly different audience than the Cabbage Patch Kids and so, though they might have had similar products in the same market, they were not competing against each other by virtue of the different tastes of their respective audiences. More succinctly, the Cabbage Patch Kids catered to the “wholesome” crowd, while the Garbage Pail Kids catered to the “gruesome” crowd; to argue that they competed against each other is akin to saying that Budweiser competes against Pepsi since both are drinks.

As to the fourth factor, Tidwell makes note of the decision in Sony v. Universal that “There is a presumption that commercial use of a copyrighted product naturally produces harmful effects.” However, this misinterprets the intent of the Sony decision, which was meant to limit complete copying (such as videotaping) for commercial use, not uses that may in fact be transformative.

Finally, Judge Tidwell quotes favorably from DC Comics v. Unlimited Monkey Business, involving parody of Wonder Woman and Superman: "Defendants do not engage in critical comment that constitutes part of the 'free flow of ideas' underlying the doctrine of fair use. Instead, they seek to augment the commercial value of their own property by creating new, and detrimental, associations with plaintiff's property." Tidwell uses this negative language throughout the decision, and makes it clear that he has a low opinion of the Garbage Pail Kids. This is the unofficial fifth fair use consideration: whether you are “good” or “bad.” To Tidwell, the Garbage Pail Kids were clearly “bad” because they were crass commercialized products that took much but added nothing.

What is so astounding about this case and Disney v. Air Pirates is that they seem so blatantly and obviously wrong in retrospect. However, in both cases the judges ruled primarily based on flawed precedent that ended up being perpetuated. It’s hard to the judges too much because precedent is such an important part of the legal process. And if there is one positive to arise from these two decisions it is that, with the ruling in Campbell v. Acuff-Rose Music, fair use and parody were spelled out and handled head-on instead of remaining the nebulous entities they previously had been.