Parody

AuthorRobert A. Gorman
ProfessionUniversity of Virginia School of Law
Pages98

Besides cases involving biographical and historical writing,156 the major area in which the fair use doctrine has been applied is that of parody.

Parody depends on borrowings from an earlier work, typically assumes the audience's familiarity with that work, and is not likely to substitute for or displace the original in the marketplace. It has been characterized as a form of literary or social criticism, such that it performs a useful public function.157.

The results in the parody cases do not fall into a coherent pattern. Although a number of cases state that the defendant may copy no more of the copyrighted work than is necessary to "conjure it up,"158 this is an ambiguous guideline. One may succeed in "conjuring up" an earlier work by copying only its broadest themes or a few de minimis musical notes, but because such copying would not be regarded as even a prima facie infringement, the fair use doctrine must protect even more; it must permit quantitative and qualitative takings that would otherwise infringe. Whereas some courts are offended when the plaintiff's work is used by the defendant in a scatological and arguably offensive parodical context, other courts do not believe that such is pertinent to fair use analysis.159.

There is also confusion as to whether, in order to prevail on a fair use defense for parody, the defendant must be poking fun at the plaintiff's work itself as opposed to some extrinsic social or political phenomenon.160.

Perhaps all that can be said with assurance about the parody line of fair use cases is that at some point the defendant will be copying so much so closely that even its comic or critical purpose will not shelter its conduct, while the defendant has a safe haven when it copies a work only in its general themes or smallest...

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