Fair Use

Producers or creators of parodies of a copyrighted work have been sued for infringement by the targets of their ridicule, even though such use may be protected as fair use. These fair use cases distinguish between parodies, which use a work in order to poke fun at or comment on the work itself and satire, or comment on something else. Courts have been more willing to grant fair use protections to parodies than to satires, but the ultimate outcome in either circumstance will turn on the application of the four fair use factors.

For example, when Tom Forsythe appropriated Barbie dolls for his photography project “Food Chain Barbie” (depicting several copies of the doll naked and disheveled and about to be baked in an oven, blended in a food mixer, and the like), Mattel lost its copyright infringement lawsuit against him because his work effectively parodies Barbie and the values she represents.[26] In Rogers v. Koons, Jeff Koons tried to justify his appropriation of Art Rogers’ photograph “Puppies” in his sculpture “String of Puppies” with the same parody defense. He lost because his work was not presented as a parody of Rogers’ photograph in particular, but as a satire of society at large. This was insufficient to render the use fair.[27]

In Campbell v. Acuff-Rose Music Inc[7] the U.S. Supreme Court recognized parody as a potential fair use, even when done for profit. Roy Orbison‘s publisher, Acuff-Rose Music, had sued 2 Live Crew in 1989 for their use of Orbison’s “Oh, Pretty Woman” in a mocking rap version with altered lyrics. The Supreme Court viewed 2 Live Crew’s version as a ridiculing commentary on the earlier work, and ruled that when the parody was itself the product rather than mere advertising, commercial nature did not bar the defense. The Campbell court also distinguished parodies from satire, which they described as a broader social critique not intrinsically tied to ridicule of a specific work and so not deserving of the same use exceptions as parody because the satirist’s ideas are capable of expression without the use of the other particular work.

A number of appellate decisions have recognized that a parody may be a protected fair use, including the Second (Leibovitz v. Paramount Pictures Corp.); the Ninth (Mattel v. Walking Mountain Productions); and the Eleventh Circuits (Suntrust Bank v. Houghton Mifflin Co.). In the 2001 Suntrust Bank case, Suntrust Bank and the Margaret Mitchell estate unsuccessfully brought suit to halt the publication of The Wind Done Gone, which reused many of the characters and situations from Gone with the Wind but told the events from the point of view of the enslaved people rather than the slaveholders. The Eleventh Circuit, applying Campbell, found that The Wind Done Gone was fair use and vacated the district court’s injunction against its publication.

Cases in which a satirical use was found to be fair include Blanch v. Koons and Williams v. Columbia Broadcasting Systems.[8]