Parodies, The 1st Amendment & Copyrights

The Simpsons. Saturday Night Live. Family Guy. South Park.

At different times, many of us enjoy parodies of various cultural icons and public figures. Many of these shows garnered headlines for some of the parody work they had presented, where they poked fun at various parts of society or culture, whether they be religious symbols, trends, presidents, legislators and even entire groups of people.

Many of us laughed at these parodies. Some of us did not have a sense of humor and got angry. But parody has been part of comedy, entertainment and the fabric of America from the start of the Republic.

Despite their prevalence in our culture, are parodies actually a form of copyright infringement?

Parody is on a razor’s edge, walking the tightrope between a First Amendment right to expression and infringing on a copyright. Sometimes you hear about a lawsuit in support of the original idea which was parodied, claiming infringement, but those who do parodies have a couple different defenses which courts have recognized as exemptions in copyright law.

Copyright law prohibits significant use of any creative work without consent of the copyright owner. And as parody is inherently based on mocking an original “work” of some kind, so there are some legal guidelines that will allow parodies without copyright owner permission.

One defense for a parody can be First Amendment expression, of which the courts have granted pretty wide latitude. One key exception is when the parody is deemed to be created with a profit motive in an attempt to usurp the copyrighted work in the public. Another issue is to not use a significant amount of the work in a parody – and courts have been all over the place in defining “significant.” One guide could be to do a parody of Wal-Mart shoppers but don’t use the Wal-Mart name or familiar colors, as an example.

Another exception from copyright law can be the “fair use” defense, which is often used in many parodies. There are a number of factors that go into determining a parody as a legitimate use of “fair use.” They are:

  • Whether the “new work” (parody) has a different purpose or “character” as the original work;
  • The “nature” of the original – does it require more protection than some other work (historical significance, for example)?
  • The amount of the original work that was used in the parody – and is the parody based wholly on that portion?
  • How would the parody impact the market value of the original?

As mentioned before, parody is prevalent in the media and in social media, and there is some deference to artistic expression with parodies, but the key is to have just enough different so as to not make an obvious connection to the work being parodied. Playing a mental game where some people can mentally conclude the parody while others may not reasonably notice, is where the line is drawn. But as so many minds are different, that line continues to be fuzzily defined.

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