Today’s Writing Wednesday installment takes a look at parody, satire, and humorous use of copyrighted materials.
Non-protected, non-licensed use of copyrighted materials constitutes copyright infringement, even when the infringer’s intent was innocent. Use of copyrighted works for criticism and comment sometimes qualifies for protection as “fair use” under copyright law.
The “fair use doctrine” involves a non-exclusive four factor test which courts use to evaluate third-party use of copyrighted works. The factors include:
1. The purpose and character of the use (including without limitation commercial vs. non-profit nature)
2. The nature of the copyrighted work.
3. The amount and “substantiality” of the portion of the copyrighted work used (the more of the original you use, or the more identifiable it is, the more the use will look to a court like infringement).
4. The effect of the third-party use upon the potential market for or value of the original (copyrighted) work.
Courts evaluate each factor on a case-by-case basis, and may weigh some facts and factors more heavily than others, which makes fair use difficult to determine in some cases.
A properly constructed parody may qualify as fair use. By definition, “parody” of a copyrighted work involves modifying the original work in order to poke fun at the work itself.
But while parody makes fun of the original work itself, satire uses modification of a work to make fun of or comment on something else – a topic different from the original work. For example, rewriting a Dr. Seuss book to make fun of a politician constitutes satire, not parody.
Some parodies have satiric components, and some satires do include elements of parody. But from a legal perspective, it’s far easier to justify use of a copyrighted work for parody than for satire.
If you’re writing parody (or satire), make sure your work qualifies as fair use before publication. Otherwise, you could end up legally liable.
Have questions about parody, satire, or other legal topics? Tweet me using the #PubLaw hashtag or ask them in the comments!
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