My final project will be a parody of a trailer or film clip. I will create a parody by using a foriegn language film, and inserting my own subtitles to transform the original work and give it new meaning. In the following bibliography, I researched past parody lawsuits as well as scholarly analysis of these cases and fair use issues. I particularly focused on the 4 factors of fair use as these factors make it possible to create parodies without the definitive fear of infringement.

Video Pipeline Inc., an online business that obtained rights to movie trailers and sold them to home video retailers for display in their stores, was issued an injunction by Buena Vista Home Entertainment Inc.  Pipeline was allowing customers to preview Disney trailers by streaming them online.  Disney did not give Pipeline permission to display their trailers in this way, and therefore issued the injunction.  Pipeline, when unable to stream the original Disney trailers, edited the trailers they did have by simply cutting out portions of the trailer and putting the remaining segments together.  Disney realized what Pipeline had done to get around the injunction, and brought Pipeline to court claiming copyright infringement.  The courts found that the edited trailers Pipeline produced were not transformative enough to qualify for a fair use defense, and they also proved to be competitive in the trailer market - of which Disney was currently competing as well.  This case is important in regards to my project as I plan to use a trailer and transform it into a parody.  Had Pipeline creatively transformed the Disney trailers in a non-commercial way, they may have won with a fair use defense.  While my trailer will not be competing in the trailer market, my use of it must still be transformative enough to qualify for fair use. 

                               

Rich particularly details the fair use doctrine in relation to parodies, and how they are defended in the court system.  There are 4 fair use factors including:

1) The purpose and character of the use, including whether the use is commercially motivated or instead is for nonprofit educational purposes.

2) The nature of the copyrighted work.

3) The amount and substantiality of the portion used in the newly created work in relation to the copyrighted work.

4) The effect of the use upon the potential market for or value of the copyrighted work.

Rich makes the point to state, “A court when evaluating a fair-use defense takes into consideration each of the four factors as no single factor by itself is sufficient to prove or disprove fair use.”  This is a very important factor of the fair use defense.  In creating a parody, I must take into account each of the fair use factors.  My project will be noncommercial, which will help to establish my parody within the terms of fair use.  It will also add new expression to the original work.  While my parody will be entertaining rather than educational, it is of an already published work.  For the purposes of my parody, I will need to use the entirety of a trailer in order to accomplish the product I wish to produce.  And finally, my parody will not attempt to substitute or compete with the trailer market or any other commercial product.  Upon reviewing the fair use factors Rich illustrates, I am confident that my project will fall under fair use terms.

Posner brings up a number of startling and distinctive looks at parodies and their protection under fair use that many of the other authors have not touched on.  Posner believes that if any work makes excessive use of a copyrighted element, it should immediately be considered infringement, no matter how transformative or creative the artist may be (pg. 69).  Posner does concede that many courts do give parodic works the fair use defense even when they have used a significant amount of a copyrighted work.  Posner also believes that only well-known works should be subject to parody, and that some knowledge of the original work is necessary for a successful parody (pg. 70).  My project, on the other hand, will most likely be the first time many will see the movie trailer I am to use.  According to Posner, this factor may lead to an unsuccessful parody.  This factor may actually alter how I develop my parody, or change the base of the parody from a relatively unknown trailer to a more recognized trailer or plot.  Before reading Posner’s article, I didn’t take in to account of the fact that making a parody of a known image, book, film, or story was a significant aspect in its success.  Posner reiterates that a parodist should not take a significant portion of the parodied work, or should take no more than necessary (pg. 72).  If significant portions of copyrighted works were to be used, and only subtle changes were made to the works, it could warrant many uncreative and “vulgar” parodies that Posner would only consider infringement.  This also brings in to question whether adding my own subtitles is considered a creatively transformative element.  I am hoping that my added subtitles will not create a simple and “vulgar” parody in Posner’s terms.  The subtitles will give a new and hopefully an amusing meaning to the original work.            

Annie Leibovitz, a famous photographer, claimed that Paramount Pictures unfairly copied her photograph of Demi Moore in their advertisement for the film “Naked Gun 33 1/3: The Final Insult.”  Rather than using Demi More, Leslie Neilsen’s smirking head was edited onto another models’ body in the same arrangement as Leibovitz’s original work.  Leibovitz believed that the movie poster fell out of a fair use defense in that it was used as a commercial product.  The courts, however, found that the advertisement did qualify as a parody and therefore was entitled to a fair use defense.  Further in the case detail, it is stated that, “the Court cautioned that the quality of the parody is not to be evaluated… the relevant inquiry is ‘whether a parodic character may reasonably be perceived.’ (Section II).  The courts are not the best judge of creativity, even though they must judge each parody, on a case by case basis.  This statement shows that the courts are not judging whether the parody is funny or overtly inventive, but whether the parodic characteristics of the work are apparent.  In my parody, as most of the audience will not know the language spoken in the film or know of the original subtitle text, my own subtitles must be clearly parodic.

In this article, Keller and Tushnet study various court cases involving fair use, parody, satire, copyright, and trademark.  One section of the article is especially interesting, as Keller and Tushnet focus on comparing and contrasting four different cases.  The first case, Columbia Pictures Industries, Inc. v. Miramax Films Corp., concerned a lawsuit against a poster advertising Michael Moore’s new film “The Big One.”  In this poster, Moore recreated the look of the “Men in Black” poster and slogan.  However, Moore stands in as the hero, and “the scum of the universe” is changed to “the scum of corporate America.”  The courts found that this was an unfair use of the poster as it was not a transformative parody of the original ad itself, and that the idea of Moore assuming a heroic role was too outlandish (pg. 987).  The next case, Dr. Seuss Enterprises, L.P. v. Penguin Books USA, Inc., was another account of possible copyright infringement.  The book, “The Cat NOT in the Hat!  A parody by Dr. Juice” was accused of infringement on copyright and trademark features from the original Dr. Seuss book “The Cat in the Hat.”  The courts, however, found that the use of trademarked and copyrighted material in the parody was transformative and not critically damaging to the original work (pg. 987).  How are these two cases different?  While Moore’s poster advertised a film that had nothing to do with themes behind “Men in Black”, “The Cat NOT in the Hat!” specifically used the heart of the original Dr. Seuss material to parody the Simpson trial throughout the book.  The comparison of these two cases will help me develop my parody in a way that is acceptable within current standards of parody.  I must transform the original in a way that gives it new meaning.  Unlike the Moore movie poster, which didn’t necessarily give his film or the original film a new meaning in its use of copyrighted materials, my re-subtitling of a foreign film will have to carefully balance parody and criticism while putting a new spin on the film itself.

 

In this case, Alan Katz and Chris Wrinn created a satire of the Simpson trial using the artistic features of Dr. Seuss’ book “The Cat in the Hat” called “The Cat NOT in the Hat!”  They used similar rhyme schemes and trademarks of Seuss to illustrate the OJ Simpson trial.  Theodor Geisel (Dr. Seuss) took the two authors to court before the book was published, citing copyright and trademark infringement.  Though the two works looked substantially similar, the details of the books that were similar could not be copyrighted.  Features such as lettering design, poetic meter, or shading can not be copyrighted and therefore were within fair use standards (section II).  When comparing the parody to fair use doctrines, it was found that the commercialism of the parodic book cut in to fair use defense, creating a weaker case for Katz and Wrinn.  The courts also found that the book did not properly parody the original work, but rather only employed the techniques of the original to satirize the Simpson trial.  This, in the opinion of the court, decreased the transformative quality of the book (Section A).  An important aspect of the case that may relate to my own project is the analysis of whether the parody would be confused with the original in the marketplace (Section A(2)).  While the courts found that there was no evidence of confusion between the two books within the marketplace, my own project may experience problems if entered into the marketplace.  As I am simply adding my own subtitles to a non-English film, it will be difficult for viewers who do not speak the original language of the film to realize that it is a parody.  I may have to add a disclaimer in the beginning of the film to bring attention to the fact that it is a parody of the original. 

Craig’s article focuses on the constantly fought-over balance between the freedom of expression and copyright.  Although this article does focus on Canadian cases, many of the issues highlighted are relevant to my project.  Craig specifically brings to light one specific case in which copyright holders purposefully stopped freedom of expression for criticism purposes.  In this case, trade union representatives for Michelin began to distribute leaflets with the “Michelin Man” about to stomp on an innocent worker.  Michelin immediately took the representatives to court for copyright infringement.  The representatives, on the other hand, believed that it was in their right to freedom of expression to use the image of the Michelin Man in their leaflet.  By restricting their use, the representatives would claim an unconstitutional restriction on their rights (pg. 87).  However, the courts still believed that using the plaintiff’s private property to express themselves was illegal (pg. 88).  The parody was critical to the original work, and it was circulated within the same market in which the original was first constructed.  It is important to look at the cases in which parody or satire was not protected by fair use, and was in fact found to be an infringement on the original work.  While I believe my work of parody would not necessarily be considered an infringement on private property, it is still vital to understand why certain parodies are not considered fair use. 

2 Live Crew made a parody of Roy Orbison’s song, “Pretty Woman”. Using the same musical riff and a few of the same lyrics, 2 Live Crew’s producer informed Acuff-Rose of the use, and offered to pay whatever was necessary for its use. Acuff-Rose declined the offer, yet 2 Live Crew released the song anyway. After a quarter of a million albums were sold, the rap group was brought to court, but given judgment that the song was transformative and therefore, of fair use. Acuff-Rose appealed, and won the next judgment with claim idea that the use of the song was unfair use as it was commercialized. 2 Live Crew took the case to the Supreme Court, where they won. The courts decided that the song fell into the proper categories of fair use. The case details the four different aspects of fair use and how the song accomplishes each of them. 2 Live Crew’s version was parodic and therefore transformative, and would not harm the reputation or financial gain of the original work. In my project, I also plan to create a kind of parody of a short foreign movie trailer. I plan to transform the subtitles (in the same way 2 Live Crew transformed the lyrics) to create a parody of the original work. Though the judgments of works of parody are done on a case by case system, the final decision of the Campbell v. Acuff-Rose case leads me to believe that my transformation of a film clip into a parody of the original will be considered fair use.

This article evaluates the way in which Margaret Mitchell’s book “The Wind Done Gone” overcame an injunction by using the fair use defense after being reevaluated as a parody. When first evaluated in the U.S. District Court for the Northern District of Georgia, “The Wind Done Gone” was seen as a work that was in direct competition with the original work it was based off of, “Gone with the Wind.” It considered the creative work of Mitchell something like a “sequel” to the original (pg. 2365) rather than a parody. The court, in continuing down the list of fair use factors, believed the work was just a work created for financial gain, and that the use of the original work was excessive in trying to create a parody (pg. 2366). From this courts decision, Suntrust was able to uphold their injunction against Houghton Mifflin. Later, however, the Eleventh Circuit reversed the injunction, and reevaluated Mitchell’s work as a parody. Again, the court evaluated the parodic work against the fair use factors. In evaluating the work as a parody, the first decision claiming that the book was written solely for the purpose of profit was overturned as its transformative qualities were considered far more important to the works purpose (pg. 2367). Because the work was later seen as a parody, the amount of the original work used within Mitchell’s book was considered necessary as parodies must use enough of the original work to allow for recognition of its parodic characteristics. Finally, the court could not find enough evidence that Mitchell’s book proved a replacement to the original work within the marketplace. Due to the reevaluation, the injunction set by Suntrust was lifted. This analysis of the Suntrust v. Houghton court case is very important in regards to my project as it shows how parodies can be treated as completely different creative works within the court system. Mitchell’s work was, at first, misread as a competing work rather than a parody. In the case of my project, I hope to establish that the trailer is a parody from the start to eliminate any misreading of film clip.

Chatman’s article delves into the definitions of parody and style, even citing the Campbell v. Acuff-Rose case.  In particular, Chatman cites 4 different kinds of parody, including strict parody, travesty, satiric pastiche, and pure (or non-satiric) pastiche (pg. 28).  The parody which is of most importance to my own project is the “strict parody” Chatman defines.  Chatman states that strict parody “imitates an original by substituting as little as possible (pg. 28).”  By simply playing upon words or giving a text new meaning with very subtle changes, a strict parody can be created.  As I am not altering the actual film, but simply adding subtitles to give the plot new meaning, I believe that I am staying within the definition of a strict parody.  Chatman continues with his definition of strict parody, and even uses an example Professor Decherney used in one of our classes.  The Icthyus fish, while a symbol of Christianity, has been subtly altered in different ways to represent new meanings, such as Darwinism (pg. 29).  The subtle alteration of subtitles, much like the small addition of feet to the Icthyus fish, will fairly transform the original film into a parody.