Parody vs "Effect upon work's value"?

[breakaway]

If I make a parody where I am trying to make fun of a big company for bad service, and I make a skit exaggerating how their employees don't care about their customers, is that still ok? Have there ever been cases where a company has successfully sued a person making a parody because they feel that it was unjust in its portrayal? I don't know if there is a line there that can't be crossed.

 

[quincy]

Parodies seem to attract lawsuits. There are several notable lawsuits over parodies currently in the courts (google "parody lawsuits" to check them out). The line that can't be crossed is often decided in court - where "fair use" is determined.

Although many more parody lawsuits may be filed than are ever won, the costs involved in defending your parody from an infringement suit brought by a big company could be substantial. The courts look at, as they do in all copyright infringement cases, the nature and purpose of the use of the copyrighted material, the nature of the copyrighted work itself, the amount and substantiality of the copying of the work, and the effect on the market. This latter condition is perhaps the one you would most need to be concerned with, with your parody.

 

[breakaway]

But 90% of parodies are basically insulting the original in some way. They would all technically have an "effect" on the market.

 

[quincy]

Exactly. That is why parodies seem to attract lawsuits.

 

[breakaway]

From looking at past cases that deal with "effect on the market", it seems to deal more with having a product that tries to replace the original. Parodies and Criticism, I believe are an exeption, otherwise there would never be SNL, MadTV, or Roger Ebert.

 

[quincy]

You have SNL and Mad-TV because SNL and Mad-TV have huge legal teams to protect the parodies from crossing the line from parody and fair use to infringement and lawsuits (although both SNL and Mad-TV have been sued in the past anyway).

Parodies must be careful to actually parody the copyrighted material itself and not just use the copyrighted material in another, unrelated sense (I have been sitting here trying to think of a good example but am having a hard time.....imagine a popular copyrighted song and then a song that uses the same music but changes the lyrics, so it has nothing to do with the original at all - that would not be a parody but an infringement that can affect the marketability of the copyrighted original). (If I think of an actual example, I will post it )

Roger Ebert is a whole different matter. He is using freedom of speech for reviews of films based on his "opinion" - if he were to veer off his comment and criticism of the film itself, the actors' performances in it, or the way it was produced and directed, and instead criticized the personal and private lifestyle of an actor appearing in the film, it may not be free speech anymore, but a potential invasion of privacy or defamation suit.

 

[divgradcurl]

imagine a popular copyrighted song and then a song that uses the same music but changes the lyrics, so it has nothing to do with the original at all - that would not be a parody but an infringement that can affect the marketability of the copyrighted original).

Not necessarily. See, e.g., Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994), http://en.wikipedia.org/wiki/Campbell_v._Acuff-Rose_Music,_Inc., where 2 Live Crew made up their own version of "Pretty Woman."

 

[quincy]

Thanks, div. You are right.

I am familiar with the "Pretty Woman" case, which DID result in an infringement lawsuit, but came out in favor of 2 Live Crew's "fair use" parody of the copyrighted "Pretty Woman" material. Another, more recent, win for the parodist came against Mattel, who brought suit against the Dutch band Aqua for their "Barbie Girl" song. That particular court battle was so protracted that, by the end of it, the band Aqua no longer even existed as a band!

So, divgradcurl, can you think of an example that did NOT result in a win for the parodist? I can't, obviously, even though I am sure they must exist.

At any rate, even if a parodist wins a copyright infringement suit (as Aqua and 2 Live Crew did), there is a lot of time and money and energy expended to get to that decision in court.

 

[divgradcurl]

So, divgradcurl, can you think of an example that did NOT result in a win for the parodist? I can't, obviously, even though I am sure they must exist.

Not right off-hand.

At any rate, even if a parodist wins a copyright infringement suit (as Aqua and 2 Live Crew did), there is a lot of time and money and energy expended to get to that decision in court.

More than 98% of all filed Federal court cases nationwide do not make it through trial to a decision. Yes, a court decision is very expensive, but also very, very unlikely. More likely is a court filing, followed by motion practice or a settlement -- still some cost involved, but far, far less expensive than a trial.

 

[quincy]

Looking at it strictly from a journalist's-income point-of-view, all court cases are expensive, federal or otherwise, even when settled prior to trial. I understand, however, that patent attorneys may have a different view of it all (from the third floor balconies of their castles overlooking their vineyards and Rolls Royces!)

I located a case where parody was used as a defense in a trial but where the Defendant failed to convince the court there was fair use of copyrighted material. A book was written based on the Dr. Suess book The Cat and the Hat. This "parody" used the Suess book to describe the O.J. Simpson trial. A court ruled that it was not parody and fair use, but copyright infringement instead.

 

[breakaway]

Thanks for the replies. I have researched some more and have yet to find an example where a person lost a lawsuit because their parody was too harsh.

Anyway, is making fun of a celebrity, whether it be criticism or parody really copyright/trademark infringement? I didn't know a person could be considered this.

 

[quincy]

Well, generally a regular person will sue for defamation of character or invasion of privacy if they are parodied (a teacher sued a student for defamation over a MySpace parody done of him, as an example). They could bring an infringement suit over a parody too, though, to protect a trademarked name (if they use it to market a product or service), or to protect something under their name that is copyrighted (think of a painter and his painting as an example).

Celebrities may have a fragrance or clothing line named after them, in which case a parody of them could also affect the marketability of any merchandise they sell. Someone doing a parody of, say, Britney Spears, could not only face a defamation action or an invasion of privacy action or a right to publicity claim, but also the parody could affect record sales or perfume sales, so the person may face a copyright and trademark infringement suit from Britney, as well. (Britney, I realize, is a bad example, as she is practically a walking-talking parody just on her own ).

Celebrities, however, as with any public person, have to meet a higher level of "proof" to bring a successful defamation suit or invasion of privacy suit. They must show that something was "published" with actual malice, which can be difficult to prove. An infringement on a celebrities right to publicity (everyone owns the right to their own image, and the marketing of that image, but celebrities images are more valuable) or a trademark or copyright action may be easier to bring and to prove than a defamation or invasion of privacy suit.

Since celebrities have voluntarily (for the most part) placed themselves in the public eye, they lose some of their privacy rights and they have opened themselves up to more comment and criticism (some of which can be rather scathing). What they have lost in these rights, however, they have gained in their right to publicity. They can profit off their image, and this "image" and their name can be trademarked.

The defense a person being sued can use, in all of the above instances, is that it was a "parody". Parody falls under fair use, both in copyright and trademark law, and under fair comment, in defamation and privacy law.