The Clash Between Parody and Copyright Infringement

By Daniel Pojero, J.D. Class of 2017 Touro Law Review Senior Staff Member

Parody and copyright infringement are constantly at odds within intellectual property law because of their paradoxical relationship. While copyright protection ensures an author exclusive rights to his or her original work of authorship, a parodist may rely on the Fair Use defense to forestall any liability for infringement, even though the parodist has copied part of the original work.[1] A parody is a method of criticism that operates by closely imitating a work for comic effect or ridicule; so a parody necessarily makes use of another creative work.[2] This is where the conflict between the two concepts exists.[3] Where typically a license is required to make use of a copyrighted work, the author is unlikely to grant permission or a license to a parodist since a parody by its nature will make fun or ridicule the author’s work.[4] Thus, the parodist employs the Fair Use affirmative defense, which allows for a reasonable and limited use of the copyrighted work without the author’s permission.[5]

Recently, Dr. Seuss Enterprises, L.P. (“Dr. Seuss”) filed a complaint against, inter alia, ComicMix LLC (“Comicmix”) in the Southern District of California for Copyright Infringement, Trademark Infringement, and California statutory Unfair Competition, seeking to enjoin ComicMix from distributing its alleged infringing work, “Oh the Places You’ll So Boldly Go.”[6]   Relying on the sustained familiarity of Dr. Seuss books, the alleged infringing work juxtaposed the recognizable Dr. Seuss theme, illustration, and stylization with the Star Wars characters.[7] The complaint was filed on November 10, 2016, and the Defendant, ComicMix, has not yet filed an answer.[8] Dr. Seuss alleges that ComicMix has misappropriated protected copyright elements into the infringing work, such as the title, story arc, characters, and illustrations.[9] The infringing work appears to recreate entire pages from the Dr. Seuss books with meticulous precision.[10]

ComicMix is likely to assert that its work is a parody that falls within the parameters of the Fair Use doctrine.[11] The courts have struggled with parody cases when ascertaining whether the parody falls within the scope of Fair Use, or if it is instead an infringing work.[12] The Copyright Act articulates criticism as one of the purposes behind Fair Use.[13] A parody is a transformative use of a well-known work that critiques or ridicules the original.[14] Therefore, the issue becomes whether there is an implication that parody enjoys more latitude than other types of works when Fair Use is asserted. If parody fails to be protected by the Fair Use doctrine, then the result could be the disappearance of parody as an artistic form of social criticism and comment.

Consequently, it must be determined by the Courts what constitutes a valid parody under the Fair Use doctrine.   Copyright Act section 107 enumerates four factors that must be analyzed to determine whether a use of a copyrighted work is fair use.[15] The first factor analyzes the “purpose and character of use, including whether the use is commercially motivated or instead is for non-profit educational purposes.”[16] The court analyzes the first factor by evaluating to what extent the use is transformative.[17] The use of the copyrighted material must be productive and put forth the copied material in a different manner or with a different purpose from the original.[18]  Where the alleged infringing work can be a substitute or makes the purchase of the original unnecessary, it is highly unlikely that the court will sanction it as being fair use of the original.[19]

The second factor ascertains the nature of the copyrighted work.[20] This factor recognizes that certain types of works are more deserving of copyright protection than other types of works.[21] Creative works do not enjoy as large a scope as do informational works designed to inform or educate its audience.[22]

The third factor looks to the “amount and substantiality of the copying in relation to the copyrighted work as a whole.”[23] This factor evaluates whether the quality and value of the copied portions are reasonable in relation to the purpose of the copying.[24]   Unfortunately, no black line rule exists. Courts have held that use of an entire work constituted fair use, whereas in other instances using a mere fraction of the work did not qualify as fair use.[25] The Supreme Court, however, with respect to parody, has held that “[c]opying does not become excessive in relation to parodic purpose merely because the portion taken was the original’s heart.”[26] A parody enjoys more leniency here because it must use enough of the original work to conjure up a recognizable allusion to the work it is aiming to ridicule.[27]

The fourth factor evaluates the “effect upon the potential market or value” of the plaintiff’s copyrighted work.[28] The Second Circuit articulated this factor as a balancing between the benefit the public will derive if the use is permitted and the personal gain the copyright owner will receive if the use is denied.[29] If the adverse effect the alleged infringing use will have on the copyrighted work is minimal, then less public benefit need be shown to justify the use.[30] However, in the parody context, although a parody may aim at destroying the artistic or commercial value of the original work through its criticism, this sort of market effect does not produce a cognizable harm under the Copyright Act.[31] The Court must differentiate between fierce criticism that quashes demand and copyright infringement that usurps it.[32]

Whether ComicMix’s work satisfies the elements of fair use in the context of a parody will be the main issue decided by the court. ComicMix must show the juxtaposition of Dr. Seuss’s theme and stylization with the Stars characters conjures up the reasonable perception of a parody.[33] The fair use factors are a multifaceted analysis of assessing where the author’s exclusivity should stop to best serve the overall objectives of copyright law.[34] A dynamic interrelationship exists between the factors because the factors build upon each other to create the concept of fair use.[35]

[1] 4-13 Nimmer on Copyright § 13.05 (2015).

[2] Id.

[3] Id. On one hand, copyright protection does not permit copying of a work, and on the other, fair use allows for copying when the four factors of fair use are satisfied.

[4] See generally Rich Stim, Summaries of Fair Use Cases, Stanford University Libraries: Copyright and Fair Use (Nov. 26, 2016) http://fairuse.stanford.edu/overview/fair-use/cases. Weird Al, a parodist, relies on obtaining licenses to conduct his work, rather than relying on fair use, which begs the question if a parodist should be required to obtain a license since it is conceivable that an original author will license their work to parodists.

[5] Black’s Law Dictionary 676 (9th ed. 2011). 4-13 Nimmer on Copyright § 13.05 (2015).

[6] Pls.’ Compl. Dr. Seuss Enter., L.P. v. ComicMix LLC, No. 3:16-cv-02779-JLS-BGS at 1-4 (S.D. Cal. 2016) Complaint filed November 10, 2016.

[7] Id.

[8] Id.at 5-11.

[9] Pls.’ Compl. Dr. Seuss Enter., L.P., No. 3:16-cv-02779-JLS-BGS WL 274176015.5 (S.D. Cal. 2016).

[10] Id. at 6-9. Example images are provided within the Plaintiff’s Complaint.

[11] Id. at 10.

[12] 4-13 Nimmer on Copyright § 13.05 (2015).

[13] 17 U.S.C. § 107(2016).

[14] Black’s Law Dictionary 1226 (9th ed. 2011).

[15] 17 U.S.C. § 107(2016).

[16] Id.

[17] Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 591-92 (1994).

[18] Id.

[19] Peter Letterese & Assocs. v. World Inst. of Scientology Enters., 533 F.3d 1287, 1315 (11th Cir. 2008).

[20] 17 U.S.C. § 107(2016).

[21] Cambridge Univ. Press v. Patton, 769 F.3d 1232, 1268 (11th Cir. 2014). See generally Diamond v. Am-Law Corp., 745 F.2d 142 (2d Cir. 1984) (stating informational works may be more freely published).

[22] Id.

[23] 17 U.S.C. § 107(2016).

[24] Peter Letterese & Assocs. v. World Inst. of Scientology Enters., 533 F.3d 1287, 1314 n.30 (11th Cir. 2008).

[25] See e.g., Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 566 (1985) (copying a few hundred words from a book was too much to quote from essentially what was the “heart of the book”; Bill Graham Archives, LLC. v. Dorling Kindersley Ltd., 386 F. Supp. 2d 324, 330–331 (S.D.N.Y. 2005) (reformatting the entirety of plaintiff’s images into thumbnail images constituted fair use.

[26] Campbell, 510 U.S. at 588 (1994).

[27] Id.

[28] 17 U.S.C. § 107(4).

[29] MCA, Inc. v. Wilson, 677 F.2d 180 (2d Cir. 1981).

[30] Id.

[31] Campbell, 510 U.S. at 591-92 (1994).

[32] Id. at 592.

[33] Id. at 582.

[34] Campbell v. Acuff-Rose: Justice Souter’s Rescue of Fair Use, 13 Cardozo Arts & Ent. L.J. 19, 22 (1994).

[35] Id. at 23. See Campbell, 510 U.S. at 577-78.

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