"When is Parody Fair Use?" - Robert Posner
A parody takes parts or aspects of another expressive work. If that work is copyrighted, why isn’t the parodist an infringer? Parody is considered ‘fair use’ under copyrighted law and is therefore considered lawful. It takes from a piece of work but injects creativity into it—taking characters, incidents, dialogue, or other aspects and creates a new work. The risk of infringement arises when the parodist extracts certain copyrighted elements of the original work—the parody is a derivative work and the copyright holder controls it. However, the fair use doctrine stipulates, in economic terms, that when the “costs of transacting with the copyright owner over permission to use the copyrighted work would exceed the benefits of transacting,” the derivative work is considered fair use. This includes economizing on other transactions and stimulating the production of intellectual property, e.g., arousing public interest through use of book reviews. Parody is a form of limited criticism, may supply a part of demand for the original work, and does not always ridicule or criticize the original work. It is different from a book review in that it does not introduce new material to the public; audience acquaintance with the work renders the need to steal much less. Within terms of fair use, parody should use the parodied work as a target and not a weapon, should not take a large fraction of the original work so as to reproduce it entirely, and the relative minimum work taken will not redeem the infringement. Often parodies achieve a common effect and not at the expense of the original work of art. In relation to my project, I will create a parody of the popular show South Park by virtue of a video mashup, and we will see how this translates into fair use.
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.
Posner brings up a number of startling and distinctive looks at parodies and their protection under fair use that many of the other authors have not touched on. Posner believes that if any work makes excessive use of a copyrighted element, it should immediately be considered infringement, no matter how transformative or creative the artist may be (pg. 69). Posner does concede that many courts do give parodic works the fair use defense even when they have used a significant amount of a copyrighted work. Posner also believes that only well-known works should be subject to parody, and that some knowledge of the original work is necessary for a successful parody (pg. 70). My project, on the other hand, will most likely be the first time many will see the movie trailer I am to use. According to Posner, this factor may lead to an unsuccessful parody. This factor may actually alter how I develop my parody, or change the base of the parody from a relatively unknown trailer to a more recognized trailer or plot. Before reading Posner’s article, I didn’t take in to account of the fact that making a parody of a known image, book, film, or story was a significant aspect in its success. Posner reiterates that a parodist should not take a significant portion of the parodied work, or should take no more than necessary (pg. 72). If significant portions of copyrighted works were to be used, and only subtle changes were made to the works, it could warrant many uncreative and “vulgar” parodies that Posner would only consider infringement. This also brings in to question whether adding my own subtitles is considered a creatively transformative element. I am hoping that my added subtitles will not create a simple and “vulgar” parody in Posner’s terms. The subtitles will give a new and hopefully an amusing meaning to the original work.