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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This paper defines tolerated use and discusses the reasons it exists.  Tolerated use is defined as “infringing usage of a copyrighted work of which the copyright owner

may be aware, yet does nothing about.”  There are many different reasons, why this may be.  Some examples include “simple laziness or enforcement costs, a desire to create goodwill, or a calculation that the infringement creates an economic complement the copyrighted work -- it actually benefits the owner.”  Tolerated use is compared to implicitly licensed use as well as fair use.  It explains how the difference between tolerated use and implicitly licensed use is legal, whereas the difference between tolerated use and fair use is fuzzy.  This is because of a lack of fair use trials against casual mass infringements that leaves fair use not completely “mapped out.” 

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.