Pooja Shree A is a Fourth Year at Jindal Global Law School.
The Supreme Court of United States, in Campbell v. Acuff-Rose Music, held that parodies with a commercial purpose are presumptively not unfair use and would not amount to copyright infringement.[i] This was an instrumental case where the Court dispelled the undue emphasis placed by the lower courts on the commercial purpose of a work in determining fair use, introduced the transformative factor, and clarified the fair use test at great length. The majority of the rationale employed by the court in reaching its decision is sound and agreeable. However, this author argues that in coming to this conclusion the Court has inadvertently created other issues, such as the creation of a false distinction between parodies and satire and granting judges excessively broad discretion to “critique the artistic meaning of a particular parody” in order to decide if it would fall within the contours of fair use. The author asserts that this has led to confused jurisprudence and uncertain and inconsistent application.
Parody v Satire- Through the Lens of Fair Use
In a suit pertaining to a parody, the best defence available to the Defendant-Parodist is that of fair use, which, codified in S. 107 of the Copyright Act, allows usage of copyrighted work for the purposes such as “criticism or comment.”[ii] S. 107 sets out a four pronged fair use analysis, the first of which is to ascertain if the secondary work is “transformative” of the copyrighted work and to what extent. Parodies that fall under this are found to “provide social benefit”, and in such cases other factors, such as commercialism will be less significant.
The Campbell Court, in undertaking the fair use analysis, distinguished parodies from satire and held that only parodies were entitled to the fair use defence. According to the Court, a parody uses the copyrighted work to comment or critique the original work. In circumstances where the parody does not comment on or criticise the “substance and style of the original composition”, and instead borrows the original work to “avoid the drudgery in working something fresh”, the fair use defence is unlikely to stand.
Essentially, the difference between the two is that while a parody takes aim at and emulates the original work to convey a specific message, satire leverages the original work to critique something entirely unrelated. This could mean that the satire utilizes another work as a vehicle for commentary on real-world issues unrelated to the original work. The Campbell Court believes that since using copyrighted material isn’t essential for making a satirical point, the fair use doctrine typically may not be applicable. In order to be considered a parody, the secondary work must mimic the original or have some reason or claim to use the original imagination. They distinguish a satire by saying that it “can stand on its own two feet,” due to which it would have to justify borrowing the original work and may not be entitled to protection.
Blurred Lines
However, the legal distinction the Court creates between a parody and a satire is a strained and nearly artificial one, resulting in the two often blurring. Further, due consideration needs to be given to the fact that judges lack the inherent sensibilities possessed by artists, and they may not necessarily have the expertise required to ascertain the significance of an artwork or be able to distinguish between a parody, that gives a commentary on the original, and a satire that borrows the original to launch a broader societal critique.
Post-Campbell, there continues to be uncertainty in administering this aspect of the fair use analysis. In Leibovitz v. Paramount Pictures, the Court used its discretion granted in the Campbell case to analyse if Nielsen’s picture intended to parody society and life at large or merely the beauty of Moore’s pregnant body.[iii] It stated that Demi Moore’s picture represented pregnancy as a source of pride and beauty, and Nielsen’s ridiculous mockery took direct aim at this by juxtaposing it against the movie’s theme. It was found to be sufficiently transformative and fair use under the first prong.
However, in Columbia Pictures Industries v. Miramax Films Corporation, a case that is similar in facts to the Leibovitz case, a documentary film used a poster imitating the Men in Black poster to advertise was found to be infringing.[iv] The poster showed Michael Moore standing before the New York skyline in a suit, same as in the MIB poster, but holding a microphone instead of weapons. The text “Protecting the earth from the scum of the universe” present in the original poster, was modified by replacing the last two words with “Corporate America”. Here, the Court held that the poster failed to criticise or comment on the MIB advertisements themself, and was therefore not transformative and merely borrowed elements to gain attention. Therefore, it was treated as a satire, rather than a parody.
The primary difference between the two cases seems to be that in Leibovitz, they used a tasteful and serious photograph with considerable underlying meaning as the source material in creating a humorous image to advertise their film, while in Columbia the original was a mock-serious poster that was advertising a comedy film and was used to advertise a documentary. We must note that while the Columbia poster drew on certain elements, such as the background, slogan, and positioning, it did not go into great lengths as in Leibovitz to exactly replicate parts of the original.
Further, one may argue that it is actually more critical of the two. In Leibovitz, the court relied on the poster replacing Demi Moore’s serious expression with a smirk, to infer a stream of criticisms of the pretentiousness of the source material. It can be argued that the Columbia poster was mocking the seriousness of the comedy movie about the world being threatened by invading aliens by drawing a comparison to the documentary which shines a light on the business practices that threaten people’s lives. Also, by using the microphone in place of the guns, it has even made a play on the words that the pen is mightier than the sword. Such a reading clearly establishes that the secondary work does comment on the original work, and would enable it to squarely fall within the definition of a parody. Therefore, it is clear that even in similar circumstances, the exercise of discretion and subjective determination in deciding if the work would be a parody or a satire, has resulted in wildly different outcomes.
Moreover, even assuming that the judicial discretion was exercised correctly and the Columbia poster was rightly held to be satire, it can be argued that the rationale behind denying fair use protection to a secondary work that uses the original to satirize society or other unrelated topics in a faulty one. In Campbell, parody was held to have a comedic place in society and therefore of social value/benefit. Assuming this premise to be true, it is baseless to assert that a parody addressing societal issues, rather than another creative work/ source material, has inherently lesser social value than the latter. If promotion of creativity and wider dissemination of creative works are the twin goals of copyright protection, then it becomes ludicrous to stifle the creative expression of one parodist while encouraging that of another, based on technicalities.
The overriding goal of copyright protection is to foster the progress of arts and sciences, and it is undeniable that every work of art must necessarily draw from and build upon prior knowledge and expression. However, the delineation process involved in decided when a parodist can borrow the style of another contemporary artist has a profound influence on the creation of secondary work. Establishing such a threshold may serve as a disincentivise artists and they may become overly cautious about their work being considered as infringement and being suppressed. Further, such limitations also have the effect of impeding the interplay between culture and creativity, and would hinder the enhancement of the broader cultural tapestry- a core tenet of the cultural theory.
It is clear that, in addition to the four pronged test, the requirement of deciding whether the work is a satire or parody results in over protection and chips away at the core purpose of copyright. Therefore, this inappropriate distinction should be abandoned at this juncture, but the four pronged test would continue to apply.
What the Court intends to do is distinguish instances where a pre-existing work serves as the foundation for creating something distinct that has its own social value, from instances where the original is exploited to unfairly benefit from another’s creativity and labour. A better alternative, that would achieve this objective, would be that suggested by Margaret A. Rose in her work “Parody: Meta-Fiction,” which is of “ironic refunctioning” of an original work.[v] We may presume that if a secondary work draws on the original to comedically criticise or offer commentary, then it may be entitled to the fair use defence.
By applying this standard to the above cases, showing a pregnant man or replacing alien hunting heroes with an unassuming man, would all qualify as parody and ironic refunctioning. I believe that this model is the most efficient one and that it would ensure consistent application in future cases. Further, it also effectively addresses other related concerns. For instance, potential authors will not forgo creative expression due to fear of it being parodied later, as the other four fair-use factors are still effective in catching any such infringement and would protect author rights. The author or holder of the original copyright will not face economic loss, as the transformative factor and effect of use of potential market would still ensure that the satire or any ironic work does not replace the original. Such a solution aligns with an utilitarian approach to intellectual property and encourages the creation of transformative content that adds social value. It also recognises the inherent social and artistic worth of such secondary pieces, regardless of whether they target the original or broader societal issues.
[i] Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994).
[ii] 17 U.S.C. § 107.
[iii] Columbia Pictures Industries v. Miramax Films Corp., 11 F. Supp. 2d 1179 (C.D. Cal. 1998).
[iv] Id.
[v] Margaret A. Rose, Parody//meta-fiction: An Analysis of Parody as a Critical Mirror to the Writing and Reception of Fiction (Croom Helm 1979).
