Parody and fair use

Discussion in 'Community' started by Thomas Veil, Jul 11, 2005.

  1. Thomas Veil macrumors 68020

    Thomas Veil

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    #1
    What's your understanding of "fair use" of a copyrighted picture? For example, those occasional "Caption This" threads which take a picture off a web site (CNN, ABC, etc.) and invite people to write funny captions for it.

    As often as not, the content is political, and that's where I think the ambiguity may begin. Using political images is not, from what I understand, copyright infringement if it is used in a parody context. For instance, if I take the GOP elephant and use it along with a funny phrase, or alter the image slightly to make it satirical, that's not considered copyright (or trademark) infringement.

    But if the subject is a picture of, say, Howard Dean, taken off CNN's web site, and you're parodying the subject, is that considered fair use? You could make an argument that the subject is political but the picture is not. That's where the confusion comes in for me.

    I've never heard of any website that's used photos in such a parody context being sued or threatened, but then again, it's a big net. Anyone got any experience/insight into this?
     
  2. medievalist macrumors newbie

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    #2
    The problem is that "fair use," contrary to popular opinion, is not a right. It's a legal defense that comes into existence only during a trial.

    You'd be making a derivative work, and parody, as a facet of fair use, would be a possible defense. If you bring this into the digital realm, it gets even murkier because of the DMCA.

    IANAL; I've just been licensing rights material for a long time, and worked as an expert witness. If you're seriously worried you need to contact an attorney who specialized in IP and understands the ramifications of the DMCA.
     
  3. wordmunger macrumors 603

    wordmunger

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    #3
    Copyright, contrary to popular opinion, is not a right. It is a privilege granted by the government for an individual to have a monopoly on certain creative products, subject to many limitations. One of these limitations is the "fair use" provision, which despite what medievalist suggests, is indeed a part of the copyright statutes.

    Numerous fair uses are specified, including educational use, library use, and use for critical purposes. Parody has long been considered a critical use -- it's seen as a criticism of a creative work, and such receives fair use protection.

    The problem with using a CNN photo of Howard Dean, however, is that the parodist usually isn't making fun of the photo as a work of art, the parodist is making fun of Howard Dean. So CNN could rightfully sue the parodist for violating copyright.

    Here's a good article on the role of parody and copyright.
     
  4. CanadaRAM macrumors G5

    CanadaRAM

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    #4
    There is a 4 point test in Title 17, Section 107 :
    Parody may fit under the Purpose and Character,

    (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
    (2) the nature of the copyrighted work;
    (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
    (4) the effect of the use upon the potential market for or value of the copyrighted work.

    http://www.publaw.com/parody.html
    Edit- Hah - you beat me to it on this link. LOL

    The court decision most quoted on parody (which in my unqualified opinion flew in the face of the intent of the statute) was Campbell v. Acuff-Rose Music, Inc. (1994) the case involving the 2LiveCrew version of Roy Orbison's Oh, Pretty Woman, which was ruled to be a parody, and not infringing, despite being commercial, ripping the title, melody and lyrics from the original.

    "the rap song was certainly transformative in that " it provid[ed] social benefit, by shedding light on an earlier work, and, in the process, creat[ed] a new one." ...the Court ruled that a "parody, like other comment or criticism may claim a fair use under [Section] 107 [of the Copyright Act]." Justice Souter stated that the threshold question involving a parody fair-use defense "is whether a parodic character may reasonably be perceived. ... It is this joinder of reference and ridicule that marks off the author's choice of parody from the other types of comment and criticism that traditionally have had a claim to fair use protection as transformative works."

    So the parody has to be obviously a parody or criticism of the original, and show a new point of view on the original to the level that a new work is created.
     
  5. rainman::|:| macrumors 603

    rainman::|:|

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    #5
    ...and it wouldn't hurt to have david souter on the bench, either. While CanadaRAM is right, it will depend largely on the court you're (theoretically) in, since so much is left up to the judge's interpretation.
     
  6. CanadaRAM macrumors G5

    CanadaRAM

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    #6
    Yeah, they did a nice little bit of circular argument on that decision (told you I didn't agree with it):

    Were 2LiveCrew truly criticizing the song "Oh Pretty Woman" or holding it up to parody? "Mmm. Well. It could be possible. The guy says he was more concerned about parodying the song than using a monster hook and some of the best known lyrics in Rock n Roll to sell a million of his own records. So, OK" Next

    Commercial use? "Of course -- it would have to be commercial. Next."

    Impact on earning ability of the original copyright holder? "You'd never authorize a parody version anyway, therefore you wouldn't make money from a parody, therefore you haven't lost anything by 2LC making $XX Million from this particular parody" Next.

    "Well maybe it would impact your ability to license a non-parody rap version, but we'll pass on that and remand that over to another court" Next.

    WTF?


    Anyway, I'm going to go with Wordmunger on this. The object of parody is not the picture. The picture remains a protected work and you cant "use" it just 'cause it's handy.

    Think of it this way: if a cartoonist drew a wicked caricature of Dean, and you scanned it and republished it with a different caption saying something critical about Dean, the cartoonist would have your @$$ for copyright infringement.

    If however you republished the cartoon and said something critical, enlightening or ridiculing the CARTOONIST and his DRAWING, you may have a defence.
     
  7. Thomas Veil thread starter macrumors 68020

    Thomas Veil

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    #7
    And that's what I was getting at: whether it's the picture or the subject of the picture that's legitimizes the parody defense. Sounds like most folks agree on the latter.

    As I stated earlier, the use of such material without permission can be kind of a murky area. See my avatar? The picture was on a news site, and just today I saw a blogger using the same picture. I think we can assume he probably didn't pay for the right to use it. So to a certain degree -- and I'm not making this a legal defense, just saying it -- "fair use" seems to be "what you can get away with". Or at least, "what somebody doesn't care enough about to sue you."

    Then again, to make such usage strictly legit, I wonder what an outfit like CNN would want for the right to reproduce, particularly if the commercial use in question was a very small business?
     
  8. medievalist macrumors newbie

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    #8
    I can't, for the life of me, see where anything I said would suggest that "fair use" isn't part of the statute. It's kind of got to be described in the statutes, or we wouldn't know about it as a defense.

    "fair use protection" doesn't mean that my parody of a Pepsi commercial is automatically going to be OK. It means if the rights holder decides to assert their copy right and accuse me of violating it, and if the court then determines that my work is in fact a parody, then my work is "protected" against the assertion that it violates copyright, and it is thus a "fair use," even if it is derivative.

    Whether or not my use is parody and therefor covered by "fair use" has to be determined at court. It doesn't happen just because I say it's a parody. Really. You don't automatically "get protection." If the rights holder decides to claim you've violated their rights, your particular use has to be examined and presented and the jury, or in some cases, the judge, must be persuaded that it is indeed parody. This is in fact not an easy thing to do.

    Yes; you will note that the article describes parody and fair use as a defense. As far as I can see, we agree with each other.
     
  9. medievalist macrumors newbie

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    #9
    What makes parody tricky to deal with, as far as I'm concerned, is that you have to make a jury understand that the thing is a parody. This can be really really hard. It can also involve other issues, especially between large corporations. Look up the song "Barbie doll," by Aqua. Mattel's initial suit was filed in 1997. There were counter suits from MCA. Mattel also brought up trade mark issues. The case was finally settled in 2002, and the Judge, Alex Kozinski, ruled the song was protected as free speech. The judge's brief is exceedingly well-written, and funny.
     
  10. barneygumble macrumors 6502a

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    #10
    IANAL..................

    ?????????? thats a new take on the theme :eek:
     
  11. CanadaRAM macrumors G5

    CanadaRAM

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    #11
    I Am Not A Lawyer

    Disclaimer most often found immediately preceding an opinion on a matter of law.
     
  12. wordmunger macrumors 603

    wordmunger

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    #12
    Agreed. What I was objecting to is that you made no indication that the fair use provisions were included in the law, and more importantly, the suggestion that copyright is a right.

    What you're describing here is a HUGE problem with copyright law, IMHO. It allows megacorporations to quash individual freedom of expression with merely the threat of a lawsuit. The costs of litigation can be well beyond the resources of an individual, and since copyright is only enforced in the courts, it tilts the balance unfairly in the favor of big corporations over individuals.

    That said, I don't think individuals who aren't profiting from potential copyright violations really have much to fear. If they're doing something that potentially falls within fair use (i.e. not downloading bittorrents of hollywood movies or sharing massive amounts of music), then likely they won't have to pay anything if it turns out there's a violation -- they'll just be asked to remove the infringing material.
     
  13. medievalist macrumors newbie

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    #13
    The first "parody" case I worked on as an expert witness was because Mattel sued MCA over the rock group Aqua's song "Barbie Girl," in a string of suits and counter suits that involved TM issues, copyright, and finally, was settled in 2002 as a freedom of speech issue. The case started in 1997; I think I paid for a couple quarters of grad school out of what I made--lord knows how much the attorneys (and there were many) made. I think had it been just Aqua, no huge recording company, they would have had to just cave, artistic freedom, freedom of speech wouldn't have mattered. And that's just wrong. And of course under DMCA, if a service provider gets a proper notice of takedown, they have to respond immediately, even if the notice turns out to be in errror.
     

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