Understanding copyright law can be very complicated, especially related to concepts such as parody and satire. Both parody and satire are forms of commentary, humor, or criticism.
However, they both have different legal implications under copyright laws. Parodies mimic or poke fun at a work or comment on the work itself. For example, if a comedian created a film that mocked the stylistic elements and themes of a well-known movie, it may be considered a parody.
One well-known musician who has made a career out of creating parody songs is Weird Al Yankovic. One of his more famous songs, “Eat It,” is a parody of a Michael Jackson song, “Beat It.”
Yankovic used the same tune as the song “Beat It” but changed the lyrics to discuss eating habits in a humorous way. His work directly commented and mocked the original song with a new and transformative meaning, which makes it a parody.
Satire, on the other hand, uses a work or comment to criticize something, for example, a trend or broader societal issue. For example, if a TV show borrowed characters from a famous novel to mock political ideologies, it would be considered satire.
“The Daily Show,” which was previously hosted by Jon Stewart and is now hosted by Trevor Noah, is one well-known example of satire. This program uses clips from political speeches, news broadcasts, and other types of media to comment on and critique societal issues and current events. Instead of making fun of the clips themselves, the show provides commentary on broader topics, for example:
- Media bias;
- Political ideologies;
- Societal trends.
Fair use laws allow for the limited use of copyrighted materials, such as those in the examples above, without permission from the copyright owner. There are, however, legal nuances that dictate when and how this doctrine will apply.
How Does Fair Use Apply to Parody and Satire?
The fair use doctrine applies to parody and satire because it provides certain exceptions to the exclusive rights that copyright holders have over their works. It allows other parties to use copyrighted materials in certain circumstances, such as:
- Criticism;
- Comment;
- News reporting;
- Teaching;
- Scholarship;
- Research.
The fair use doctrine will more likely protect a parody than a satire because a parody typically comments on the original work. The use of copyrighted materials in parodies often serves the underlying purposes of copyright law by promoting creative expression and advancing the arts.
In contrast, satire may fall outside the scope of the fair use doctrine because it will often critique something that is broader than the original work. This means that the party using the work may exploit more of the copyrighted material than necessary.
What Factor of the Fair Use Test Is Most Important?
The fair use doctrine will be applied on a case-by-case basis and follows a four-factor test, which includes:
- The character and purpose of the use, including whether or not the use is of a commercial nature or is for a nonprofit educational purpose;
- The nature of the copyrighted work;
- The amount and substantiality of the portion that is used in relation to the copyrighted work as a whole; and
- The effect of the use of the portion upon the value of or the potential market for the copyrighted work.
Although all four of these factors are considered, a court will often pay special attention to the last factor, the effect of the use on the market for the original work. If a new work would perform like a substitute and diminish the market value of the original, it is less likely to be considered fair use.
Purpose and Character of the Use
This factor of the test considers whether or not a new work is transformative. This means that it adds new meaning or value to the original or whether the new work merely copies the original.
For example, if an artist uses a copyrighted photograph in a collage in order to create a new artistic statement, this may be considered a transformative use. If, however, an artist simply reproduces a photograph and sells it, it would likely not be considered fair use.
Nature of the Copyrighted Work
This factor of the test examines the type of work that is being used. For example, using a purely factual work such as a news article is more likely to be considered fair use than using a highly creative work such as a novel.
Suppose a historian is writing a book about World War II and uses excerpts from certain newspaper articles from that era to illustrate certain issues. This may be determined to be fair use.
Amount and Substantiality of the Portion Used
This part of the test refers to both the quantity of the work that is used as well as the quality or importance of the portion used. For example, if an individual quotes a single line from a book in a review, it may be considered to be fair use.
Copying an entire chapter, however, or copying the most important part of the work, even if that is a small portion, can weigh against fair use.
Effect on the Potential Market
This factor of the test considers whether the new work will harm the market for the original work. An individual may publish an unauthorized Harry Potter book and potentially harm J.K. Rowling’s market for selling her own Harry Potter books. In this case, this would make it unlikely to be considered fair use.
In contrast, a critique or review of the Harry Potter series, even if it includes some excerpts or quotes, is not likely to replace the market for the original work and would be more likely to be considered fair use. The specific facts of each situation will greatly influence the outcome of the fair use analysis.
Does It Matter if I Take the “Heart” of the Original to Create a Parody?
In terms of fair use, the amount of the original work that is used does matter. However, it is understood that pardoes must borrow some elements from an original work in order to conjure up the work being parodied.
Parodies often require taking the heart of an original work to evoke the necessary connection in the mind of the audience. In addition to the new and transformative commentary, this will typically be seen as justifiable under fair use.
Since Parody Can Be Negative Criticism, Might It Be an Infringing Activity?
Although a parody may be a form of negative criticism, it does not necessarily constitute infringing another person’s work. As discussed above, the fair use doctrine can protect parody as a form of commentary or criticism.
It is essential, however, to strike a balance. The parody should not exploit more of the original work than is necessary to make the critical point desired.
Do I Need a Lawyer?
If you have any issues, questions, or concerns related to parodies and satires, it is essential to consult with a copyright lawyer. If you are creating a work that may borrow from copyrighted material or if you think another individual has improperly used your work, your lawyer can help.
Your lawyer can advise you of your obligations and rights under copyright laws. In addition to that, they can also help you take the necessary steps to protect your work or defendant against any infringement allegations.
