Fair Use/Parody

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.

FAIR USE OF COPYRIGHTED MATERIAL IN ADVERTISEMENT PARODIES

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.

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Fair Use/Parody

FAIR USE OF COPYRIGHTED MATERIAL IN ADVERTISEMENT PARODIES