"Fair use" law of satire/parody in the U.S.A.

[Updownleftright]

What is the name of your state? -

Hi

I am European, but have been wondering about the parody law and why you handle it as "fair use" in the U.S. This might be a bit of a lengthy post, but considering the internet makes us a small world, I'm interested in how you U.S. citizens see my points.

Satire can happen to anyone, rich influential persons and stars, but also poor citizens with few rights. When I see how websites like Somethingawful.com, Fark.com or Encyclopediadramatica.com mainly satirize random people whose health/wealth and status in society isn't known, I feel uncomfortable.

Any adult will know life is hard and some have it harder than others. Not only do we humans have to fear illnesses, accidents or (hate) crime, but with satire we even have to beware of strangers who feel like setting up a whole nation with a reason to hunt us down with humiliation. I've seen satire that made fun of (mentally) disabled people, gays, blacks, immigrants. Considering the U.S. doesn't give any limitation to satire, this seems an instrument for fascism to me. There's a photo of a person who lost a limb in war or in an accident? Who cares, let's add a comment saying "Failure. Game over." and post it as satire on the internet for the whole world to see. What does it say about the ethics and morals of the satirist?

Many people try to survive with a lousy job and be friendly to others to get along in life. It might happen anytime that we get into a situation where we are made fun of by a complete stranger. Examples would be the movie "Borat" or radio hosts making joke calls. Lower and middle class people are being satirized and reduced to mockery. If they appeared on TV with their name, they are no longer part of the society, they are fair game to be pointed and laughed at. It's not easy for victims to ignore the mockery and laugh about oneself. They might get problems on their jobs or have their whole life turned upside down. Something that could have been avoided by telling the satirist to leave them alone in the first place, unlike something unpredictable like an accident or an illness. Doesn't freedom of opinion ends where others are oppressed?

I wonder why satirists aren't rather mocking oppressors or companies instead of individual, weaker people. Is it because most satirists are part of a privileged upper class society, racists, homophobes? Don't they understand that they could be in a weaker position themselves one day, land in a wheelchair, lose a limb and experience the mockery and behaviour they taught others?

I'm sure nearly everyone has heard about the one or other "internet phenomenon". Unfortunate people who had been videotaped or photographed at a bad moment and these files were spread all over the internet. I read that some of them (and I guess the estimated number is much higher) had to get psychological assistance, couldn't finish their education or lost their job. In my country, we have to pay taxes and health insurance to keep up institutions like a psychiatry or to get help from a psychiatrist.

Don't you think that allowing satire without boundaries is actually counter-productive for the economy of a country? One half gets the laughs, but the other one gets a free ride to welfare and depression. It sounds ironic: even if satire is often funny, its outcome for the victim isn't taken serious enough like any other health damage.

Regarding the aforementioned websites, some examples:

Encyclopediadramatica.com has a satirical article about Brian Peppers (http://www.encyclopediadramatica.com/index.php/Brian_Peppers). Now, this is a bit of a complicated case. It is said that Peppers molested a child, while others defend him saying he tried to grab a nurse to get her attention. Probably nobody on the internet knows the real story, yet many are making fun of him. If you read the reasonable article about him on Wikitruth (http://www.wikitruth.info/index.php?title=Uncensored:Brian_Peppers), you will know that he is (slightly) mentally retarded and physically disabled. Is it ok to make even more fun of him? Isn't he already punished enough with his genetics? Another case where mentally retarded people are made fun of are the "even if you win, you're still retarded" images (http://images.google.com/images?q=even+if+you+win,+you're+still+retarded).

B3ta.com and Fark.com usually have visitors post retouched random images found on the internet, no matter if they are copyrighted or not. One victim from Fark.com is "Xiao Pang" (http://news.independent.co.uk/world/asia/article1987610.ece), someone even created a website for the retouched images without his permission: 33reasons.com. I wonder how long the webmaster is going to keep up this site. Will he/she ever come to the insight that it's cruel and uncomfortable for this foreign guy? The webmaster is using another person's misery to make money through banner ads.

Mydeathspace.com is supposed to be an online obituary for deceased people with a Myspace.com account, where one can leave respectful comments. When I read through the forum, I see a lot of people poking fun at how some of the deceased "looked ugly and had to be taken off our gene pool anyway" or "deserved to die for their stupidity". Imagine you are the parent of a teenager whose information was published on that website. You are mourning the loss of someone you tried to raise up and then you come across the website's forum, where the members are publicly mocking your child and pay no respect to him or her. Wouldn't you feel angry and frustrated how other teenagers have such low morals and laugh at your dead child?

The website Somethingawful.com usually publishes the cease and desist letters or personal information of their victims for further mockery, which incites the website visitors to stalk these victims. Is this still part of the satire? Does satire allow to publish the address or past crimes and incidents of the victim? Isn't the c&d letter a private document? I also get the feeling that nowadays everybody tries to pass defaming images and documents as parody, just to get away with the law.

These are just a few examples from the internet and it saddens me that they are also part of the most frequently visited and best-known websites. Instead of humiliating people who are full of themselves and bring them back down to earth, the satirists are elevating themselves to idols because they make the crowd laugh, no matter if the victim is already lying defenceless on the ground. They rather kick that person one more time.

As for music, paintings and "arts": why is it that ridiculing and defacing someone's work of many hours or days is valid, while simple copyright infringements are pursued?

Sure, I do laugh sometimes about satire too even if I have my limits. I have been laughing at people in real life, but it never crossed my mind to post humiliating images, videos or writings without the permission of the victim on a medium like the internet, that is archived forever and can be read by anyone. As a young adult I had and still have my share of bullying and humiliation due to various reasons I don't want to mention here, I sympathize with those innocent, random victims of satire. I don't understand why others feel the need to humiliate someone by showing that person's face and name on the internet or any other media, while they stay anonymous themselves. To me it's kind of a sociopathic trait.

Although I'm living in Europe, I'm scared at how audacious privacy protection is openly handled in the U.S., because I might as well become victim of satire anytime. In my country it is still possible to have a person take the satire down/stop it or even sue if it's going too far, too personal, or damages one's reputation a lot, but if a photo of me shows up on an American website in a satirical context, what am I going to do? I can be seen worldwide. My friends and co-workers will be able to see it too and I'll be powerless. Would I have to sue using my countries law or try living with the shame because the U.S. law doesn't grant me any right?

How can you people in the U.S.A. live with the fact that with the way you currently allow satire (which is a method to criticize shortcomings) it's causing a lot of nuisances instead of reducing them? Isn't it stressful to keep in mind how you could get mocked in a nationwide media with your photo, name and address anytime and have no rights to defend yourself?What is the name of your state?

 

[FlyingRon]

It sounds less like you are doing legitimate research than just venting unfounded conclusions based on your totally inadequate understanding of US law.

Fair use does not prevent legal action, but just excuses certain uses of copying from being considered infringement. Parody/satire is not carte blanche to libel, slander, threaten, etc...

It's a broad area of legal discourse to argue the boundaries between protected speech, intellectual property, tortuous injury, and criminal assualt that might be involved in parody/injurious writings.

 

[quincy]

Updownleftright -

It is true that the United States has more liberal laws when it comes to parody than do many other countries. In the U.S., parody falls under "fair use". Your comparable "fair dealings", which is more restrictive than the U.S.'s fair use, has no such fair use defense to copyright infringement (although it is currently being discussed as an addition to fair dealings). The fact that the U.S. allows "fair use", however, does not mean that fair use permits any and all uses of copyrighted material. In fact, fair use is decided in court after someone brings an infringement suit. The court decides, then, whether the use is, in fact, "fair".

What is determined in court is whether the use of a particular copyrighted piece has infringed on the copyright owner's rights. Looked at is the character and purpose of the use, the nature of the copyrighted work, the amount of the copyrighted work that is taken, the effect on the market for the copyrighted work, and then there are subjective judgments that can come into play. Although the U.S. does not recognize "moral rights" as does the U.K., Australia, and many other countries, a "morally offended" court (the judge and/or jury) may decide against fair use based on a personal sense of right and wrong. Although this is not part of the fair use factors to be considered, it can unconsciously affect a decision. There is, in other words, no easy or automatic formula that says one use is fair and another is not. It is the wise satirist who reviews his material with an attorney prior to publication, to avoid the risk of an infringement suit (which is costly and time-consuming, even for those who win such a suit).

In addition to a copyright owner being allowed to sue over the infringement of copyrighted material, for what the "infringer" may have considered fair use, people can also use defamation laws and privacy torts to protect against parodies that defame them or invade their privacy. Not only is it illegal in the U.S. to defame someone, it is also illegal, in many cases, to intrude on a person's physical solitude, to publish private matters that violate ordinary decencies, to put a person in a false light, or to use someone's name or likeness for commercial reasons without their permission.

The Internet has been a challenge, not only in the U.S. but worldwide, because of the speed in which material can be posted. Defamatory material and infringed material makes its way to the Internet rapidly and is spread rapidly, and lawsuits, unfortunately, take time. The U.S. has the DMCA notice that allows for the taking down by the website of infringing or offensive material, but it, too, takes time. The lawsuits over Internet postings average 4 or more a day in the U.S., so there is obviously a reaction by the public to illegal postings and an expensive lesson to those who choose to violate the laws.

For further information on our copyright laws, you can go to www.copyright.gov, and for more information on fair use, check out http://fairuse.stanford.edu .

Our country values free speech and a free press but, although our Constitution's First Amendment guarantees this freedom, there have always been limits placed on it.

(by the way, Sacha Baron Cohen, the creator of Borat, is an English comedian, and he has been sued by some of the people appearing in his "documentary")

 

[Updownleftright]

In fact, fair use is decided in court after someone brings an infringement suit.

It saddens me that this comes down to a "shoot first, ask later" mentality. It's obviously easier for a big company to come up with the money for legal actions, than a private person. Often I see that it's single persons, many times teenagers, who are the target of parody and satire. I feel they are left alone and without rights.

An example I didn't mention is the "Star Wars Kid" (http://en.wikipedia.org/wiki/Star_wars_kid). Meanwhile he got a compensation from his oppressors. Yet he was made fun of on TV and music videos, and his videoclip is still being posted on Youtube and other internet sites. He doesn't have any control over it.

I don't know how he feels like, but I would be frustrated that my personality is "public domain". I wouldn't have time to e-mail every single website, asking to take my image/video/whatever down and I don't have the money to start legal actions against every one.

If I was making money off the things I do in public, I would be aware that I'm a public person, but I'm more the type of person that works in the background. I'm already an easy target for humiliation in real life and scared that I couldn't even post a photo of me on a dating site without fearing that someone else might use it to humiliate me. If someone thinks my photo fits right in for a satirical article he's doing and a court grants him that right, I feel like I will have to walk around with a paperbag on my head in the future. Thank you, I was just looking for love and not nationwide humiliation.

Satire wouldn't be that evil if it wasn't for the "mob" to stigmatize the victim and keep on humiliating one. Disabled people or ones with a disease already have to live with pain and rejection, homosexuals with intolerance and hate, blacks with racism and hate too... and eventually they have to endure mockery because someone else doesn't think that far about these social problems and believes it's right to point the fingers at them. I think a big part of prejudices are also due to someone or some people having started satire about other persons and the mob blindly following the satirist without questioning what he just did.

As for Cohen, I knew he's from England, I just needed a recent example that many people know. It's also a good example to show how some people in the movie were taken by surprise and rushed in front of the camera, and that they had no chance to win a lawsuit against a big company. Seems to me like a bitter taste of "survival of the fittest", where humans randomly pick out weaker ones for their own amusement, without thinking about the social impact this has.

Satire has always existed, and humans are making fun of each other in groups, but hundreds of years ago, cameras, easy duplication methods and highly developed archives didn't exist yet. Nowadays, a victim is reminded of and branded with his faux pas for life and a whole nation knows about it. I hope human rights and laws will catch up with the internet and satire in general.

 

[quincy]

Yes, wouldn't it be great if all of the people in this world were nice.

Unfortunately, no law anywhere will ever make that the case.