Parody Law Questio

[emomac]

I'm located in New York, NY.

I'd like to begin a project that involves spoofing some well-known films, such as Harry Potter, in a pornographic setting. *I don't know whether or not I should be concerned about getting sued. *My understanding is that parody laws protect work that is derivative of a copy-written work, so long as the derivative work does not defame the original. *It's hard to say whether or not what I want to do is defamation though. *I certainly don't consider it so. *I'm not insulting the original books, characters, or story line, but some would consider it an insult to the original work to have it be put in a pornographic setting without looking at the plot or execution of the derivative movie.

Thanks in advance for straight forward answers on a touchy subject!

E

 

[quincy]

Yes, you should be concerned about getting sued.

Parodies ridicule a work by imitating it in a comedic way. It is speech that is First Amendment protected. But, because a parody uses material that is copyrighted, it can also be an infringement. If the copyright holder decides to sue a parody maker for copyright infringement, it would be up to a court to decide if the new work is a parody of the original, and if the use is a "fair use" of the copyrighted material.

You may want to check out a case involving a "parody" of Dr. Suess' The Cat in the Hat, an adult version of the child's book written about the O.J. Simpson trial. Suess Enterprises sued the publisher. The court determined the book was not a parody, although the Suess style was imitated. The "parody" (The Cat NOT in the Hat! A Parody by Dr. Juice) only invoked the original to capitalize off Suess' book. Penguin Books was enjoined from distributing the already printed books. See Dr. Seuss Enterprises v Penguin Books USA, Inc, 109 F.3d 1394 (9th Cir. 1997).

A work cannot simply mimic a style or copy the expression of the original work, in other words, but must be a commentary on the original work. A parody adds something new to the original.

Fair use elements that are looked at by a court would be the character and purpose of the use (whether it is commercial or educational), the nature of the copyrighted work, the amount or substantiality of the portion used in relation to the whole of the copyrighted work, and the effect of the use upon the potential market for or value of the copyrighted work.

In addition, many films, such as the Harry Potter films, have trademark protection as well as copyright protection. When a work is trademarked, a parodist must be careful not to disparage or libel the product. When dealing with a Disney product or a Harry Potter product, for instance, the owners (through their legal teams) aggressively fight to protect the rights and reputations of their products. Even when exercising free speech rights of parody, you could find yourself defending these rights in court - and spending multi-thousands of dollars to do so. And the court could rule against you.

If you want to make use of copyrighted and trademarked material by parodying the material in a pornographic way, it would be necessary for you to run your ideas by an IP attorney prior to investing too much time, energy or money into this enterprise. Your proposed idea is a lawsuit magnet.

 

[emomac]

Very interesting, and extremely enlightening. Thank you very, very much, Quincy. I'll certainly consult an IP lawyer if I decide to pursue this venture at all.

– E

 

[quincy]

You're welcome, emomac. Good luck with whatever venture you pursue.