Parody as a Fair Use Defense: Just How Far Can You Go?

The answer to this question depends on who or what is the butt of your joke. If you are making fun of the copied material and have taken no more than you need to make the parody, the "fair use" defense is likely to work. If you are making fun of someone else and using a copied work to do it, this is called satire and fair use defense is less likely to be successful.

Let's start with a short list of rules:

"Everything" has copyright protection. That statement is too broad, but is so close to the truth, you should assume that the image you found on Google does have copyright protection and you have to deal with that.

Making a few changes to the image or text does not excuse your copy of the original work. When this is done, it is called a "derivative work" and the right to make derivative works belongs exclusively to the author or creator.

The "fair use" defense usually works better for news uses, but not always. There are separate four factors to consider, including the imaginative or creative qualities of the original and whether your copy will interfere with the market value of the work copied.

The famous "American Gothic" painting by Grant Wood provides could be the most parodied work in American art, so it is a lively example to use in a discussion of parody. The copyright in this work created in 1930 is still alive - assuming it was correctly protected under the 1909 Copyright Law - and will stay alive until 2025 thanks to actor-Congressman Sonny Bono and his Copyright Extension Act.

On the left we have a copy of the original and on the right we have - in my opinion - an example of a derivative work. Whether a "fair use" defense would work, assuming the newer painting needed defending, would depend how much creativity the court saw in the original and in the copy, the purpose for the copy, how much of the original was copied and, finally, its threat to the market value of the original painting. To my eye, the art on the right doesn't look like a parody, it looks like a new translation of a famous traditional image.

This balloon art does look like a parody, but is it that or is it satire? This derivative work, made from balloons, is used in an advertisement for a company that would decorate your trade show booth with creative, eye-catching art, the "American Gothic" arrangement of balloons being an example. There is enough of the original to "conjure up" the copied image, indeed the backdrop seems identical to the original. Is the comic art being used to parody Grant Wood's painting itself, or is it simply taking the image to advertise its business? Is it, in the words of U.S. Supreme Justice David Souter being used to get attention or to avoid the drudgery in working up something fresh. . . ?" The rule is that the fair use defense works when the copied work is the target of the parody. To my eye, this looks like a close call, which is pretty typical in considering fair use. So, let's take a look at an example decided by the Ninth Circuit Court of Appeals, the federal appeals court sitting in California.

The subject of copying was the very familiar Dr. Seuss book, "Cat in the Hat." Here's a perfectly legitimate "fair use" of the cover of that book, used by an education magazine in a story about the book.

Childhood Rebellion -- And Phonics? -- The Cat In The Hat Turns 50

"In the 50 years since The Cat in the Hat exploded onto the children's book scene, Theodor Seuss Geisel----pen name "Dr. Seuss"----has become a central character in the American literary mythology,. . " Taken from This Week in Education.

This is a legitimate use of the copyright art on the cover of the book. It is the subject of the news story and the story is better told with the picture because many more people will easily recognize the images. There is no competition with the book itself, no damage to the market, and no confusion (should this be a trademark) about the source of the work.

However, when O.J. Simpson was being tried for murder, Penguin Books and Dove Audio tried to publish a satire about the trial in the form of a book that took off on Dr. Seuss' children's book, "The Cat in the Hat." They wrote a "poem" book titled "The Cat NOT in the Hat!" using O.J. Simpson's image in place of the famous top-hatted cat. The "poetry" went on to describe sarcastically all the events related to this trial and really had nothing to do with the Dr. Seuss work The Ninth Circuit found that "The Cat in the Hat" was imitated as a handy vehicle for writing satirical commentary about the trial - not the book - therefore it was not parody, it was satire, not a fair use. A court order stopping the publication and the distribution of "The Cat NOT in the Hat" was enforced.

Courts have a reason for doing it this way. "By requiring that the copied work be an object of the parody, we merely insist that the audience be aware that underlying the parody there is an original and separate expression, attributable to a different artist." When this is the case, parody will allow the copy to take more of the original work than is usual under a fair use analysis. But if you're using someone else's art work to convey ridicule someone else - not the original work - the use is likely to be called a satire, NOT parody and therefore it is less likely to be found a fair use.

Does this torpedo any use of satire? It does not. All four fair use factors - as described above - will be used to evaluate the satiric use of someone else's work, but the parody defense will not be part of that analysis.