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.

ORIGINAL APPALACHIAN ARTWORKS v. TOPPS CHEWING GUM (642 F. Supp. 1031) -- LexisNexis
Following the ruling of copyright infringement against the defendant in Disney v. Air Pirates, the court ruled that TOPPS infringed on the Cabbage Patch Kids with their parodic trading cards, the Garbage Pail Kids. Partially following the precedent set in Disney v. Air Pirates that taking too much in order to make the “best parody” could constitute infringement, Judge Tidwell focused on the first and fourth copyright factors: the purpose and character of the use, and the effect of the use upon the potential market, respectively.

As to the first factor, Judge Tidwell argued that the two products were competing against each other in the same market; however, this ignores the obvious: namely, that the Garbage Pail Kids catered to a wholly different audience than the Cabbage Patch Kids and so, though they might have had similar products in the same market, they were not competing against each other by virtue of the different tastes of their respective audiences. More succinctly, the Cabbage Patch Kids catered to the “wholesome” crowd, while the Garbage Pail Kids catered to the “gruesome” crowd; to argue that they competed against each other is akin to saying that Budweiser competes against Pepsi since both are drinks.

As to the fourth factor, Tidwell makes note of the decision in Sony v. Universal that “There is a presumption that commercial use of a copyrighted product naturally produces harmful effects.” However, this misinterprets the intent of the Sony decision, which was meant to limit complete copying (such as videotaping) for commercial use, not uses that may in fact be transformative.

Finally, Judge Tidwell quotes favorably from DC Comics v. Unlimited Monkey Business, involving parody of Wonder Woman and Superman: "Defendants do not engage in critical comment that constitutes part of the 'free flow of ideas' underlying the doctrine of fair use. Instead, they seek to augment the commercial value of their own property by creating new, and detrimental, associations with plaintiff's property." Tidwell uses this negative language throughout the decision, and makes it clear that he has a low opinion of the Garbage Pail Kids. This is the unofficial fifth fair use consideration: whether you are “good” or “bad.” To Tidwell, the Garbage Pail Kids were clearly “bad” because they were crass commercialized products that took much but added nothing.

What is so astounding about this case and Disney v. Air Pirates is that they seem so blatantly and obviously wrong in retrospect. However, in both cases the judges ruled primarily based on flawed precedent that ended up being perpetuated. It’s hard to the judges too much because precedent is such an important part of the legal process. And if there is one positive to arise from these two decisions it is that, with the ruling in Campbell v. Acuff-Rose Music, fair use and parody were spelled out and handled head-on instead of remaining the nebulous entities they previously had been.