In the Copyright Act of 1976, the concept of fair use became a codified law as opposed to solely legal doctrine. However, the courts were given the job to determine on a case by case basis the allowances that could be made with a fair use defense. Parody and satire, two major forms of artistic expression, immediately came under scrutiny, and until Campbell v. Acuff-Rose there was little consistency in opinion. Campbell v. Acuff-Rose gave parodists a lot of leeway to claim fair use, and while satirists were more limited, the Supreme Court was willing to provide means for satirists to equally claim fair use. However, with the Ninth Circuit's ruling in Dr. Seuss Enters. v. Penguin Books, the court incorrectly restricted satrists' ability to claim fair use. Satire should be allowed to claim protection under fair use and there should be little distinction between satire and parody.

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. 

Dr. Seuss Enterprises L.P v. Penguin Books USA Inc. (109 F.3d 1394, 9th Circuit, 1997)

The case of Dr. Seuss v. Penguin deals a major blow to satire's ability to claim fair use. The defendants, Penguin Books, represented a pair of authors, Alan Katz and Chris Wrinn, who had written a book called "'The Cat NOT in the Hat!' A Parody by Dr. Juice". The book was marketed as a parody of Dr. Seuss's "The Cat in the Hat" from the cover art to the rhyming style. Dr. Seuss's estate sued Penguin Books for copyright infringement, among other things, and the district court held in favor of Dr. Seuss. On appeal, the circuit court upheld the ruling.

In reaching its conclusion, the circuit court dealt with the issue of whether or not "The Cat NOT in the Hat!" could reasonably be considered a parody. Using the definitions for a successful parody laid out in Campbell v. Acuff-Rose, the court decided that "The Cat NOT in the Hat!" "does broadly mimic Dr. Seuss's characteristic style" it failed to "hold his style up to ridicule." Consistently throughout the opinion, the court states that "The Cat NOT in the Hat!" does not deserve the fair use defense because "it fail[s] to target the original work." Furthermore, the court states that Penguin's fair use defense is "pure shtick" and "completely unconvincing."

 Also, the court leans heavily on the fourth factor of 17 USC 107, which discusses the potential market harm that could be inflicted on the copyright work. The court decided that due to the commercial nature of "The Cat NOT in the Hat!" as well as the predetermined non-parodic status it holds, the potential market harm was present. Therefore, between this factor and the other factors, Penguin was not entitled to claim fair use and therefore lost the suit.

Analysis of this case will be saved for the other sources, but in general, this ruling is very lethal to satire. By rejecting any claim to fair use, the court overly restricts satire. Prior cases, including Campbell and Rogers, allowed for a minimal comment on the original work to clear the fair use hurdle. Even though the court acknowledges that there is mimicry of Seuss's style, which can be construed as minimal comment, the court feels that it is insufficient. By flying in the face of Campbell and Rogers, the Ninth Circuit goes too far with its ruling and blocks satire's rightful defense.

Elsmere Music v. National Broadcasting Company (482 F. Supp. 741, SDNY, 1980)

The case of Elsmere v. National Broadcasting Company reflects an instance where the court maintains that parody and satire are both given protection under fair use. Elsmere Music owned the rights to the song "I Love New York" which contains a number of lyrics and musical pieces. A specific part of the song, the words "I Love New York" and the four notes that corresponded to that section, were used in an advertising campaign for the city of New York. The ad featured the words repeated over and over again by a variety of characters. NBC's program Saturday Night Live took the music (which consisted of 4 notes) and used it in a sketch where the biblical city of Sodom was trying to make their own advertising campaign. The sketch ends with the line "I Love Sodom" repeated 4 times using the same music as "I Love New York." Elsmere sued for infringement, and the courts decided in favor of NBC.

In its decision, Elsmere upheld an opinion from a case in 1964 which states "as a general proposition. . . . parody and satire Are deserving of substantial freedom" with regards to copyright infringement. Futhermore, the court states in its own right, that the

"The song "I Love Sodom," as well as the sketch of which it was a part, was clearly an attempt by the writers and cast of SNL to satirize the way in which New York City has attempted to improve its somewhat tarnished image through the use of a slick advertising campaign."

The court then refers to the song as a parody which satirizes, thus equating parody and satire.

By ruling that the SNL sketch was fair use, Elsmere gives a broad coverage of protection to satirists and parodists alike.

By Rebecca Tushnet and Bruce Keller

Tushnet and Keller's article discusses the nature of parody and satire and the issues that can arise with making a clear distinction between the two. While the article involves copyright, trademark, and right of publicity cases, it is copyright that applies specifically to this discussion.

 In their analysis, Tushnet and Keller applaud the "nuanced" reasoning employed by Justice Souter regarding the approach to satire. Specifically, they cite footnote 14 from the Campbell case (cited above) as a correct approach towards satire and parody.

The article then looks at the case of Seuss v. Penguin and proceeds to explain where the court made a mistake. In their opinion, the court was making a decision on "aesthetics" which the court should not be allowed to do. To determine that a work makes no comment on the original work involves passing "literary judgement" which goes beyond the scope of the courts. Also, if the case comes down to a distinction between parody and satire, anyone will be able to make legal arguments for both possibilities. Tushnet and Keller caution that with such a clear line between parody and satire, there is a large potential for the court to inadvertently suppress speech by making the "wrong" characterization of the work.

The article's conclusion is that the concept of a line between parody and satire should be "abandoned in favor of a fair use analysis that finds addition of critical insights...to be favored uses without judging the merits of those insights." The article is incredibly favorable to satire's ability to claim fair use from both a legal perspective and the general cultural perspective of protected speech.

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.

Rogers v. Koons (960 F.2d 301, 2nd Circuit, 1992)

Rogers v. Koons continues the court's idea that satire should be protected under the concept of fair use. Rogers was a photographer who took a picture called "Puppies" of eight German Shepherds. The picture, according to the court document "drew on [Rogers's] years of artistic development." The photo was incorporated into Rogers's catalogue and was later turned into a notecard in 1984. The notecards have been publicly distributed.

Koons was an artist and sculptor who tended to make "absurd" and potentially offensive works. While looking for ideas for his "Banality Show", Koons found Rogers's picture "Puppies" on a notecard and decided to copy it. Koons's work was called "String of Puppies" and was almost exactly like the original photograph but with a few differences. Rogers sued for infringement, Koons claimed fair use protection. The court ruled in favor of Rogers. Koons appealed to the 2nd Circuit, who affirmed the ruling of the lower court.

In one of the most important statements made regarding satire, the court said:

"Parody or satire, as we understand it, is when one artist, for comic effect or social commentary, closely imitates the style of another artist and in so doing creates a new art work that makes ridiculous the style and expression of the original. Under our cases parody and satire are valued forms of criticism, encouraged because this sort of criticism itself fosters the creativity protected by the copyright law." (emphasis added by me)

 To consider satire critcism gives satire a stronger claim to fair use, as the definition of the fair use clause includes "critcism" as an example of a permissible fair use. Additionally, the statement in general equates parody and satire, making no distinction to their rights.

However, Rogers does limit to some extent the opinion in Elsmere. While considering if Koons's work is fair use, the court decides that while "It is the rule in this Circuit that though the satire need not be only of the copied work and may...also be a parody of modern society, the copied work must be, at least in part, an object of the parody, otherwise there would be no need to conjure up the original work."

This narrows slightly Elsmere's broader protection of satire, but it does not deny satire outright. Instead of saying all satire is allowed, the court requires that there must be at least a part (though not defined how much) that comments on the original. This is still a noted departure from Posner, and leaves satire with significant freedom to create. 

The House Report on the Copyright Act of 1976 1

This is the report issued by the House Judiciary Committee regarding the Copyright Act of 1976. The report first reproduces the bill in full then proceeds to discuss the background and need for each section of the Act. The relevant portion begins on page 16 of this file.

While listing the potential activities that could be covered by a fair use defense, the committee quotes the Register of Copyright's 1961 report. One of those listed is "use in a parody of some of the content of the work parodied" By explicitly allowing parody to claim fair use, the House opens the door for parodists to use copyrighted material without fear of being sued for infringement. Therefore, until later court cases decided to draw a line between parody and satire, courts could interpret fair use to cover satires explicitly and without restriction.

The committee also felt the need to state that the addition of the fair use clause as codified law was not meant to "change, narrow, or enlarge" the scope of fair use, but rather merely restate it. Therefore, to apply the fair use clause in a restrictive manner, such as denying satire the right to claim fair use, goes against the very purpose of the fair use clause.

The House report also serves as a basis for the Supreme Court to hear Campbell v. Acuff-Rose, as the report states that the fair use clause must be determined on a "case-by-case basis", thus requiring that there be no one rule that governs fair use. Thus, to blanketly deny satire the right to fair use violates the principle on which the fair-use clause was created.

 

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 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.

Richard A. Posner, The Journal of Legal Studies, Vol. 21, No. 1. (Jan., 1992), pp. 67-78.

In this article, which was published shortly before the Supreme Court heard the case of Campbell v. Acuff-Rose, Posner lays out an argument for how parody can be considered fair use. While Posner focuses heavily on the market and economic impacts of a parodic work (which is relevant to the fourth factor of 17 USC 107) he also considers the definition of parody. Posner states that for a parody to be considered fair use, there must be three qualifications:

1) That the parody uses the parodied work only as a target not weapon. It is from here that Posner divides parody into two categories: "weapon" parodies, where the target isn't the original work but rather uses the copyrighted work to comment on something else; and "target" parodies, which comment on the original work itself. The latter should be allowed to claim fair use (assuming it meets the other two qualifications) but the former should not.

2) The parodist should not be allowed to take a portion of the copyrighted work such that the parody becomes "a substitute for that work". Posner admits that this is a "vague criterion."

3) The fact that a parodist only takes a small amount of copyrighted material should not be relevant to fair use.

It is the first factor that is the most relevant to this argument. Posner's definition of a "weapon" parody is very similar to the definition of satire. This means that Posner is opposed to satire's ability to claim a fair-use defense as it should immediately be considered infringement.