C3 Patent and Intellectual Property Law

Jan112011 | Steve O'Donnell

When a parody isn’t a parody

I’m willing to bet that at some point you watched something labelled a parody video on YouTube. In the past week I’ve run across three that people have either sent me our pointed out on twitter. Of those, one was a song played on top of clips from the original Star Trek series, one was a mashup of an 80's metal song and a 60's pop song, and the last was a pop song done with different lyrics to poke fun at one of the many reality show disasters. Each was labelled as being a “parody,” probably as an attempt to cut off a copyright issue before it became a problem. Each was very clever and well done, but are they protected parodies?

Parody is protected fair use of a copyrighted work, but it doesn’t mean that all comical uses of a copyrighted work are protected. For a work to be a fair use parody of a copyrighted work, it has to actually parody the copyrighted work. [sounds like a lawyer wrote that last line.]

It would probably be helpful if I linked to the videos that inspired this post, but I don’t want to step on anyone’s legal defense (if it came to that).

First, lets touch on fair use. In determining whether a use of a copyrighted work is a “fair use,” courts will look to a few factors:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;


(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and


(4) the effect of the use upon the potential market for or value of the copyrighted work.

If you ever read a case with that list in it, you’ll notice that something like “although each prong is not determinative…” is nearby. In other words, a court will look at all the factors in deciding if a use if a fair one. That can be a hard thing to explain since most people thing that just because some use is noncommercial that it’s automatically a fair use, which isn’t the case.

Second, lets briefly go over the differences between parody and satire, at least in this context. Parody pokes fun at a work and needs to use part of that work in order to do so. Satire pokes fun at society, usually for social change. Either parody or satire can be protected fair use, although the fair use is generally much easier to find in parodies (look again through the four factors).

Turning then to the three YouTube videos I mentioned:

A song played over Star Trek clips. What is being made fun of? The song isn’t changed, so the song isn’t being parodied. The show might be parodied since it’s taking a serious sci-fi show and making it into a video for the song with some creative editing. Use of the song is not parody, even though it’s used as part of a parody of something else. Use of the clips, though, might be protected.

A mash up of two songs. That might be parody. I’d argue that the use of each work is poking fun at the original, in this case, by pointing out the structural similarities and interchangeability of certain elements between two otherwise disparate works.

New lyrics to a pop song making fun of a person. Since the song itself isn’t really the target of the new work, it’s probably not a parody of the song.

Of course, like just about everything in copyright law, each case is different and fair use is not an easy doctrine to pin down. It’s always in your interest to get an attorney’s opinion about your plan, especially if your parodies are for-profit. Although “not determinative” (there’s that term again), for-profit uses tend to get a closer look from copyright owners.

So, if at least some of these YouTube videos are not really fair use, why are they still there? Shouldn’t YouTube take them down? Why aren’t the copyright holders suing?

A couple reasons that probably explain that. For one, fair use is not a clear cut test, I wouldn’t be shocked to find a judge that came to different conclusions than I did. Also, in some cases, the copyright holder probably likes the additional expose they get through a popular YouTube video.

For a quick, fun read, take a look at Campbell v Acuff-Rose Music to see what the Supreme Court said about 2 Live Crew’s version of Pretty Woman.