| The word "parody" comes from par6idia (παρωδια), deriving from 'para' and 'od(?)'. 'Para' means beside, alongside or near. 'Od(?)' means song. Parody is an ancient literary form with roots reaching back to classical Greece. It is a satirical art in which the parodist comments humorously and critically on an existing work through an imitation that exposes the original's flaws. An effective parody requires the audience recognize both the subject of the parody and the parodist's mocking distortions. To achieve this, a parodist often must mirror or directly copy portions of the original. Courts have recognized the value of parody in particular, and have provided "breathing room" for it through the application of the Fair Use Doctrine.The Fair Use Doctrine, section 107 of the Copyright Act, provides in part that a determination of fair use requires analysis of the following four factors: the first one is the purpose and character of the subsequent use. The first factor under 107 obliges courts to assess the "purpose and character of the use, including whether such use is of a commercial nature or is instead for nonprofit educational purposes." Courts have recognized that, this statutory language suggests a continuum along which a particular use may be measured. Another important aspect of this first factor is whether the subsequent use in some way transforms the original: generally, defendants are most secure where the new work is marked by radical metamorphosis, the reference expressly recognizes that "the commercial or non-profit character of an activity, while not conclusive with respect to fair use, can and should be weighed along with other factors," n53 as it had been in prior fair use decisions. Thus, although the decisions have considered the commercial nature of an alleged infringing use, other considerations under this first factor also are important.The second factor is the nature of the first work. It is well settled in Copyright law that the dissemination of factual works is more essential to the public interest than the dissemination of fictional or artistic works; thus, factual works only receive "thin" protection. Furthermore, although a factual work may be copyrightable, the underlying facts themselves cannot be protected. Over this period of time, however, several important principles have remained relatively constant, the doctrine of fair use allows certain use of copyrighted materials because all works build on prior works; there is no wholly original thought. It is, therefore, vital to consider an author's motivations in bringing a suit to prevent the copying of an unpublished work.The third factor is the amount and substantiality of the taking. Under the third factor, courts are required to examine the "amount and substantiality of the portion used in relation to the copyrighted work as a whole." Courts have applied various standards to determine when a parodist has copied "too much" of the original. Recognizing that parody. requires some copying, courts attempt to balance the competing interests of parodist and copyright holder. Focusing on whether the amount taken is "too much," an imprecise assessment at best, distracts courts from the real issue of fair use. The Ninth Circuit maintains that the permissible amount to be taken should depend on a number of factors, including the extent to which the public may recognize the first work, as well as the ease with which the first work may be "conjured up." The so-called "conjure up" test permits parodists to copy only that amount necessary to evoke the original in the mind of the audience.The forth factor is market impact on the first work. Copyright fulfills its social purpose through limited monopolies that encourage authors to disseminate their work. Parodies are not likely to supplant original works in. the marketplace because, generally, "few fans of a classic song or movie will buy the parody instead, or vice versa." Therefore, market impact tends to weigh in favor of parodist defendants. A parody that interferes excessively with an author's incentives to create and disseminate her work subverts the copyright system and does not merit the fair use defense. Every fair use, however, necessarily involves some limited loss to the copyright holder. Courts therefore must proceed with caution when evaluating harm to an author. Rather than denying fair use when the plaintiff makes any showing of negative market effect, the actual or potential harm must be great enough to require the protection of the author and of the incentive system.While courts have interpreted the Fair Use Doctrine to provide protection for parodies, courts have not accorded satire the same privilege. This distinction between parody and satire, however, creates an unnecessary limitation on the creation of satirical works. Furthermore, providing fair use protection for satires makes sense because satires do not displace the copyrighted works in the marketplace, and thus, do not provide a disincentive to original creators. In fact, it is arguable that satiric works increase demand for the copyrighted works: The satire may revive interest in a copyrighted work that is no longer as popular as it once was. After all, satires are not funny if the public does not recognize the relationship between the satires and the works they are copying.Society benefits when existing material is transformed into new works that comment on current events or social mores. If satires are not allowed to receive fair use protection, the incentive to create satires will be diminished and fewer satires will be created, much to society's detriment. The lack of fair use protection for satiric works further hurts the public because it stifles the creative process and inhibits artistic expression. For these reasons, courts should protect satire. |
PDF Full Text Request