A parody is defined as “an imitation of the style of a particular writer, artist, or genre with deliberate exaggeration for comic effect.” Common sense reveals that most authors of protected work would not freely license their work to be parodied. Therefore, most parody authors must rely on the defense of “fair use.”
A defense of fair use is not alleging that an infringement did not occur, but rather that the infringement is excusable.
Section 107 of the Copyright Act of 1976 does not provide a definition of what is considered fair use, but instead gives examples along with factors for a court to consider and states,
[T]he fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
17 U.S. Code § 107.
To be considered a “parody” of a work, the parody author has to “conjure up” the plaintiff’s original work and communicate that the parody author is commenting on the style or substance of plaintiff’s work. An infringing defendant cannot just copy the work to merely make some sort of soap box social comment.
One of the more notable parody cases involves the rap group, 2 Live Crew, who parodied the Roy Orbison song, “Oh, Pretty Woman.” Luther Campbell, a member of 2 Live Crew, originally asked Orbison’s record label’s permission prior to parodying the song, but was refused, Campbell used the song anyway and gave credit to Orbison and the record label. The record label ultimately sued and the case made its way up to the United States Supreme Court. The decision from the United States Supreme Court was unanimous in that 2 Live Crew parodied the song and therefore it was protected by fair use. The court noted,
Suffice it to say now that parody has an obvious claim to transformative value, as [the record label] itself does not deny. Like less ostensibly humorous forms of criticism, it can provide social benefit, by shedding light on an earlier work, and, in the process, creating a new one. We thus lineup with the courts that have held that parody, like other comment or criticism, may claim fair use under § 107.
Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994)(internal citations omitted.)
Courts have found that since the parody has a different purpose than the serious work it borrows from, it does not infringe on the original authors marketplace. In other words, the parody does not decrease the demand for the original work. In Campbell, while the Court said that a market consists of only potential derivatives that the original author might develop, there were other markets to consider. In this case 2Live Crew’s song was rap music and the Supreme Court remanded to the lower court to consider whether the parody version infringed on plaintiff’s potential market in rap music.