If you’re relatively familiar with Copyright Law you may know that one of the exceptions to infringement is parody under section 107 of the Copyright Act, which excuses works “for purposes such as criticism (or) comment.” Parody qualifies as fair use. You may think you know what parody is, but how does the legal world recognize it? It actually wasn’t until 1994 that the US officially recognized that commercial parody can qualify as fair use. The case was Campbell v. Acuff-rose Music, Inc. 510 US 569 (1994), and it revolved around a little song called Pretty Woman. You probably know the classic Roy Orbison song “Oh, Pretty Woman” from 1964. Well in 1989, rap group 2 Live Crew released the song “Pretty Woman” which parodied Orbison’s song and included the original’s well-known guitar riff. 2 Live Crew did not gain permission to use the riff or any portion of the song. The case was brought before the Supreme Court and they determined that 2 Live Crew’s song was protected work, even though it was primarily used for commercial purposes. Previously the courts held that a parody was not fair use if it copied the original work’s “heart”. However, here the court found that in order for 2 Live Crew’s parody to work, they had to use the “heart” (the guitar riff).
This still doesn’t really answer the question of what is a parody exactly. A parody under this ruling has to use parts of the original work and make a comment or criticism of the original work. In the “Pretty Woman” case 2 Live Crew’s lyrics were considerably more overtly descriptive that it made commentary on how the man in Orbison’s original was creepily hitting on a woman. However, many songs of popular parody artists like my childhood hero, Weird Al Yankovic, would not actually qualify as legally protected parody. As you may or may not know, Weird Al makes many parody songs but almost none of them actually make a commentary or criticism about the original work. However, his song “Smells Like Nirvana,” does qualify as parody since the song makes fun of the fact that Kurt Cobain was an unintelligible singer. I should probably point out that Weird Al always gets permission from the original artist before releasing a song. But what about satire? Satire is not protected because the Supreme Court distinguished it in the “Pretty Woman” case. According to the court, parody needs to mimic an original to make its point, but satire can stand on its own without the need to borrow from others. In other words, satire didn’t need to mimic an original in order to work as satire. So to sum up, to qualify as protected parody you must mimic an original work, make a commentary or criticism on the original work or creator of the work, and the work has to rely on mimicking the work in order to make its point.
I do need to make a rather important point here. Fair use like parody here, is a defense. As in in order to claim it, you need to have already been sued. If you are sued for copyright infringement and want to claim parody, you will need to prove it. So before you decide to make a parody or already have, you should always consult a lawyer.
