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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.
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 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.
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.
FISHER V. DEES (794 F.2d 432, 9th Circuit, 1986)
The case of Fisher v. Dees provides an example of the duality of satire and parody. The case was brought by Marvin Fisher and Jack Segal, who created and composed a song called "When Sunny Gets Blue", described by the court as "a romantic and nostalgic ballad". In 1984, Rick Dees, a comedian, contacted Fisher for permission to make a parody of the song for a comedy album. When Fisher declined, Dees went ahead and recorded the song anyway. Fisher sued, and the District Court ruled in favor of Dees. On appeal, the 9th circuit upheld the district court's ruling.
In the ruling, the Court reaffirms the statement made in Elsmere v. National Broadcasting Company with regards to the "conjure up" test. As with Elsmere, the court decided that a parody is entitled to use at least enough material to "conjure up" the original. This concept is quoted again in the