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South Park & a Necessity Theory of Fair Use’s Parody/Satire Distinction

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8 Responses

  1. Bruce Boyden says:

    Great post, David. One minor correction: the case is from the Eastern District of Wisconsin.

    On parody vs. satire, I’ve always thought that the theory has to be based on the fact that almost all of the listed preamble uses typically involve commentary on the work in some way: criticism, comment, news reporting, teaching, and scholarship. Therefore commentary on the work gets a leg up in the analysis, whereas other uses don’t. This would actually go outside of the four factors altogether. I agree with you that the distinction often gets distilled by lawyers and judges alike as “parody is a fair use, satire isn’t.”

    I’m not sure about the necessity analogy though, on both sides of the equation. For one thing, it might be true that copyright owners are less likely to license parodies of their work as opposed to other uses. But it’s not a given–some copyright owners do license parodies. E.g., Weird Al Yankovic’s entire oeuvre. Rebecca Tushnet flags other examples occasionally on her blog. It may be more correct to say that we just don’t want parodists to even have to seek permission, even if they could in some cases get it. That might be because we’re worried about the price, or about transaction costs, or both.

    On the satire side, it seems likely that there are some satires that just would not work as well with other material, perhaps because of the cultural salience and social meaning of that material. The satirist could perhaps retool their satire using another work, but (let’s suppose) it just wouldn’t be as good. Is that “necessity”?

  2. A.J. Sutter says:

    I share the question Bruce raises in his last paragraph, as well as his overall comment: thanks for the informative post.

  3. anon says:

    I like the market failure explanation for this better. There’s social value to parody, but copyright holders are especially likely to resist licensing parody (but less so for satire), and fair use comes in as a regulatory solution to market failure. See Gordon’s classic article.

  4. Jake Linford says:

    Anon, I’m not sure there’s a lot of difference between the necessity and market failure rationales, although the Ploof case might lead us to think there must be an element of imminent danger. In both cases, there’s reason to suspect the tortious interloper cannot secure permission, but we excuse the trespass because it needed to occur.

    I agree, in part, with earlier comments that the range of possible parodic targets may be greater than one, while the range of potential satirical platforms is likely less than any work under the sun. If all the parodist is saying is “this particular work is silly / worthy of ridicule,” then there is only one possible target, and the necessity argument would be the strongest in that instance. But if the parodist is saying anything more than that, I’m more inclined to think that the parodist can make certain commentaries using one of multiple works. For example, I once wrote a song about the way a small town community collectively knows too much about individual members, and how gossip spirals out of control. My mildly creative parodic inspiration was to include the recognizable whistled theme from The Andy Griffith Show, but I could have trotted out the theme song to Green Acres, Payton Place, Little House on the Prairie, The Waltons, or nearly any soap opera, to make the roughly the same point. Any of those uses could have been sold to the court as primarily parodic instead of satirical, but any of the songs would have been interchangeable.

    “Weird Al” Yankovich writes specific parodies of specific pop tunes, and he apparently always gets permission (as Dave has noted in other blog posts). We lose some Weird Al songs when the copyright owner says no, but Al redirects his energy into other works. On the other hand, I would be surprised if the subset of works which can serve as a vehicle for a satirist engaging in any given critique is really as limitless as we commonly assume. If that’s right, then the necessity gap between parody and satire might be smaller than it first appears.

  5. anon says:

    I’m not sure there’s much daylight between the arguments, but you can’t take “necessity” as seriously in copyright as in Ploof–so it’s really just a naked value judgment clothed in the language of necessity. The market failure idea distinction between parody and satire has some bite, though. Presumably if I want to use your song to make a broader commentary about the world that isn’t critical of you or your song, in most cases you’ll let me do it for a price. But if the point is to ridicule you, there may be no (reasonable) price I can pay to use your song to do that. So fair use kicks in.

  6. Jake Linford says:

    Anon – The fact necessity isn’t as pressing in the copyright context as in Ploof does not mean that the necessity isn’t somehow real. I think the necessity argument may better serve to shed some light on how badly you need to use my song, and how large the universe of possible replacements. I’m still not convinced that the parody / satire distinction is as black and white as the courts make it. It’s also a value judgment, using a crude proxy. Applying lessons taken from necessity cases, and looking at how much of the work was taken, and why, might give us more careful, and hopefully more precise value judgments.

    As to market harm, we get great parodies from Weird Al even though on occasion, people say no and he moves on. As I understand it, he’s struck out less than five time in his 25 year career. Even though a few artists have said no, I’m not sure this amounts to a market failure we should correct with fair use. Of course, not every artist will have the success rate Al has had – he’s relatively mild in his humorous assaults. Perhaps fair use better applies for more egregious or offensive fair users. Again, a necessity inquiry might better serve us than the crude parody / satire distinction. Al can get a license. The makers of South Park might be unable to do so. Is it a bad result if we continue to expect Al to ask permission, but not South Park?

  7. David Fagundes says:

    Just got back from out of town, so coming late to the discussion. But thanks, all, for the interesting comments.

    Bruce, you’re right about the court, so I fixed that (as well as an appalling grammatical error in the first sentence that I just now noticed). Apparently I’m hardwired to make some obscure factual mistake in every post.

    In terms of your point about necessity not tracking on precisely to parody/satire, I don’t disagree. My point was that that rationale for parody/satire truly lies in necessity, not transformativeness. But this doesn’t mean that all parodies need to use the underlying work, but no satires do–only that parodies tend to need to use the underlying work more than satires.

    But you and Jake have raised good questions about whether even that empirical assertion is accurate. At least the way “parody” is used by courts these days, I think it is equated with uses that poke some fun at the work, and if so, then we can safely say that a parodist needs to use the work.

    In terms of satires, though, the necessity issue may be a closer case. Sure, there are multiple ways to mock the OJ Simpson trial, but maybe there was something especially effective about doing it from the perspective of Dr. Seuss (I’m not sure this is true, but it doesn’t seem totally implausible, either). If that’s true, then the “Cat Not in the Hat” is not really needed, but the satire will lose efficacy in another vehicle. (And drawing judges into this kind of distinction seems to raise serious concerns about running afoul of the principle of aesthetic nondiscrimination.)

    Finally, it’s true as anon notes that “necessity” is a morally loaded term. One could argue that the world just doesn’t need satires or parodies at all. Unlike in Ploof, no one’s going to die without “Goodnight Bush” or 2 Live Crew’s “Oh Pretty Woman,” so it appears that the kinds of necessity at play in the trespass exception and fair use contexts are really quite different.

    Oh, and an only very tangentially related postscript: We’ve been assuming in this thread (as I have in earlier posts about it) that Weird Al’s work is parodic. After I wrote that earlier post, though, someone challenged me on this and made me skeptical about it. Much of Al’s work simply changes the words of songs to be funny–e.g., Michael Jackson’s “Bad” became “Fat,” which doesn’t seem to be any sort of comment on MJ. I suppose you could always say that by singing nerdily in the style of a mainstream performer, Weird Al is mocking them on some level, but that definition of parody seems to broad as to impose no real limit. So maybe Al does need to get licenses after all, at least for some songs?

  8. Jake Linford says:

    David,

    I was rereading the Supreme Court’s decision in Harper & Row Publishers, Inc. v. Nation Enterprises , and was reminded of the Supreme Court’s passing reference to necessity in refuting the argument by the Nation that “the public’s interest in learning [the] news [about Ford's reasoning for and thoughts about pardoning Nixon] as fast as possible outweighs the right of the author to control first publication.”

    The Court concluded instead that the Nation failed to “assert any actual necessity for circumventing the copyright scheme with respect to the types of works and users at issues here.” The Court contrasted the Nation’s proposed public interest exception with codified exceptions to copyright falling outside the fair use provision, including § 115′s compulsory license for records and § 105′s exclusion of Government works from copyright protection.

    The Court also noted that the asserted public interest exception would strip public figures of copyright protection for their expression. This is a bit overbroad – it would merely strip protection for the expression of historically valuable information. Disclosing the expressive content of a children’s book written by Ford would not be news.

    It’s not clear that the Court was conceiving of necessity in its guise as a defense against tort liability, and Harper & Row is not a parody case, but one could conceive of a world where necessity and not transformation drives the outcome in fair use cases.

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