In this article, Adriana Collado summarizes the distinction between parody and satire and the interpretation of this difference in fair use cases over time. Collado goes on to discuss the present state of the law, what the law should be, and possible solutions and compromises for satire, which is not currently mostly included under fair use provisions.

However, Collado also argues that by Supreme Court's own definition of fair use works ("for purposes such as criticism [and] comment"), satire should already been included. Satire has been defined as a commentary or critical work, one of the uses specifically enumerated in the Fair Use Doctrine, so it should technically be protected.

Since satire is currently not included under fair use, Collado discusses potential solutions and compromises, although none are very promising. Collado quotes Tom W. Bell, who suggests that copyright owners and secondary users should be able to opt out of copyright law and contract under a fared use system, although he fails to mention what would happen for satirists if copyright owners refuse to license (which would probably happen due to the self-esteem issue). Collado adds another possibility of courts requiring unauthorized satirists to pay copyright holders for actual damages sustained from the use of the copyrighted work, but understands that such a method might still dissuade satirists who cannot predict such a number in advance.

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.

THE FAIR USE COMMERCIAL PARODY DEFENSE AND HOW TO IMPROVE IT -- Jonathan M. Fox, 46 IDEA 619, 2006 (LexisNexis -- SEARCH IN “LAW REVIEWS” USING THE TITLE IN THE “KEYWORD” FIELD)
    In this article, Fox lays out the divergence between the dictionary definition of parody and the legal one, and concludes that “Supreme Court's current definition of parody has allowed certain works, completely devoid of the elements of literary parody, to qualify as fair use parodies” (I). This is because he argues that the court has given parodists too much flexibility by interpreting too broadly what a “parody” is.

    Fox writes, “It appears that the purpose of fair use is to be fair to the party accused by the copyright holder of infringement” (V). This is because of the disconnect between what dictionaries say is “parody” versus what the courts say it is:

Although most would find 2 Live Crew's version of Pretty Woman to be at least mildly amusing, the Supreme Court made it very clear that the work's humorous component was not what made the song a fair use. Instead, it was primarily the song's transformative character coupled with the fact that it commented on or criticized the original. Both of these characteristics that won the song fair use protection are only tangentially related to the traditional definition of parody. Similarly, in its decision in SunTrust Bank, the Eleventh Circuit established that "judges need not set themselves up as arbiters of whether the product is funny. (V.A)

Fox then goes on to list ways in which copyright law can be changed to curtail the possibility that courts will grow too lenient with parodies. “Although commercial parodies are deserving of protection from a First Amendment perspective,” Fox writes, “their strong commercial status renders their position in the realm of copyright law decidedly more suspect” (VI).

    Fox makes the pertinent observation that legal definitions need to conform to dictionary ones, or else it leaves future courts with little ability to analyze and apply precedent. Furthermore, he argues that that if parodists are all but immunized from infringement suits, then it has the possibility to negatively affect the progress of arts and science by curbing the creation of new works--after all, it would essentially negate the purpose of copyrights, to give security to authors that their work will not be stolen, if all anyone has to do to copy it is to claim fair use through parody.

THE CAT IN THE HAT'S LATEST BAD TRICK: THE NINTH CIRCUIT'S NARROWING OF THE PARODY DEFENSE TO COPYRIGHT INFRINGEMENT IN DR. SEUSS ENTERPRISES v. PENGUIN BOOKS USA, INC. -- Jason M. Vogel, 20 Cardozo L. Rev. 287, September 1998
    This article analyzes the decision of infringement against the publisher of the book The Cat NOT in the Hat!, a satiric account of the OJ Simpson double murder trial, written in the style of Dr. Seuss. The case was ruled an infringement because The Cat NOT in the Hat! used Dr. Seuss conventions as a vehicle for commenting on OJ Simpson; Campbell v. Acuff-Rose established that to be considered parody and not satire (which is not covered under fair use--see “Unfair Use”), a work must criticize of comment on the work it is copying. The problems with this is that:

The argument that the commentary element should be an absolute prerequisite to fair use, thereby dispositively disqualifying satires, suffers four significant shortcomings, however. First, distinguishing between parodies and satires involves arbitrary judicial line-drawing, as there is no clear standard for how closely the work must focus on the original to qualify under "parody" status. ... A second significant shortcoming to the parody/satire dichotomy is the fact that satiric works causing inherently offensive associations to be drawn to the underlying work are as unlikely to be licensed as those that directly criticize the underlying work. ... A third flaw of the parody/satire rule is the notion that should the copyright owner refuse to license a satire, the satirist will be able to find other copyright owners who are more amenable to his use of their works. ... Finally, it is unreasonable to suggest that potential authors will be dissuaded from creating new works solely because their product may later be used as "unpermitted" and uncompensated elements of a satire. To the extent that the satire does not serve as a market substitute for the original, its presence will result in no cognizable economic loss to the original author. (B.III)

    Vogel proposes that all satires fall under fair use consideration, much like parodies. This is because satires behave in much the same way that parodies do, and should be afforded the same rights: “Because inherently offensive satires implicitly analogize the external target of their criticism to the material being borrowed, a reciprocal analogy can be inferred. For example, The Cat NOT in the Hat! implicitly asserts that, in some respects, O.J. Simpson is like the Cat in the Hat. This creates a reciprocal implication that the Cat in the Hat is somewhat like O.J. Simpson” (IV). He goes on to outline many of the arguments for satire as fair use discussed in “Unfair Use.”

    This article makes some good points that fit in nicely with the narrative for this project that satire is not only commentary--and thus falls under free speech and fair use protections--but that it meets the other prerequisites for fair use by virtue of its similarity to parody. The courts are beginning to take note of this, as evidenced by the Campbell decision, and it is probably only a matter of time before they rule thata satire is substantially similar to parody.

SUNTRUST BANK v. HOUGHTON MIFFLIN COMPANY (268 F.3d 1257) -- LexisNexis
    This is the Eleventh Circuit appeal of the of the case brought by Suntrust against Houghton Mifflin charging infringement on Margaret Mitchell’s Gone With the Wind by Alice Randall’s The Wind Done Gone. In this case, Judge Birch ruled in favor of Houghton Mifflin by virtue of First Amendment rights. Interesting, he writes in a footnote:

I believe that fair use should be considered an affirmative right under the 1976 Act, rather than merely an affirmative defense, as it is defined in the Act as a use that is not a violation of copyright. ... However, fair use is commonly referred to an affirmative defense, see Campbell v. Acuff-Rose Music, Inc. ... Nevertheless, the fact that the fair use right must be procedurally asserted as an affirmative defense does not detract from its constitutional significance as a guarantor to access and use for First Amendment purposes. (n3)

Birch rules that The Wind Done Gone had value beyond what fair use laws afforded it because the nature of the work was a social commentary meant to create dialogue and end the myths about the Antebellum South. “Freedom of speech requires the preservation of a meaningful public or democratic dialogue,” he writes (II.B). In essence, Birch held that Randall was merely continuing a discussion that Mitchell had established; by adding her own expression, Randall was free to “use or discuss the idea” (II.B.1).

    This was a landmark, but controversial decision, as discussed more in “ The Wind Done Gone, the Law Done Wrong?” and tangentially in “Fair Use Commercial Parody Defense.” I agree with the outcome, though I’m undecided about the rationale. Instead, I think a less controversial justification for ruling for fair use would be to allow satires--which The Wind Done Gone is more of than a parody--the same protections afforded to parodies. This is discussed further in “Unfair Use.”