Thursday, January 29, 2009
THE LEGAL COMMUNITY: Intellectual Property: Parody, Satire and Jokes
By MICHAEL C. DONALDSON
Often your clients confuse three different and distinct concepts—parody, satire, and jokes. Here is a simple way to clarify this for your clients. A parody comments directly on a copyrighted work and therefore is allowed to take quite a bit from the work that is the subject of the comment. A satire comments on some broad aspect of society. Often, it is usually evaluated liberally under the fair use doctrine. Neither one has to do with humor, although, more often than not, they both evoke a laugh or at least a smile, at least when one agrees with the points being made. Therein lies the confusion. A joke gets no special break under copyright law. The issues raised by jokes are usually all about the person who is the object of the joke and what rights they have, as in “How did they get away with saying that?” Once your client understands the differences on a global level, you can get more detailed. Let’s start with the jokes because most people aren’t too sure what a joke is, and I have not been able to find a case which defines it. But dictionaries will help us here.
THE CASE OF THE JOKE
Many of my clients tend to confuse parodies and satires with jokes. A joke is something that is said or done to evoke laughter or amusement. It can be a one-liner or an amusing story with a long awaited punch line. A parody or satire does not have to be funny. The difference between a parody or satire on the one hand and jokes on the other is crucial, since jokes are not generally copyrightable whereas a parody is. I say “generally” since there are instances of a joke being copyrightable, but generally jokes are considered to be ideas and copyright law only protects expressions of ideas fixed in tangible form.
Most of the legal claims on jokes occur when someone really doesn’t like to be made fun of. Most people don’t want to be laughed at. But there is not much they can do about it. The question is was this an invasion of one of the personal rights of privacy, slander and false light. There is also the right of publicity. The over-arching reason that none of these rights are invaded is because no one is misled into thinking that the comic is making a statement of fact. The comic couldn’t possibly be slandering someone or putting them in a false light if everyone who hears the joke understands that it is a joke rather than a statement of fact.
Note that the key in all of this is that the comment is intended to elicit a laugh (whether it does or not) and all the listeners understand the comment that way at the time that it is uttered. That is why it doesn’t help at all when someone says, “I was just joking” after making a racial slur, a sexually inappropriate comment in the workplace, or a mocking comment aimed someone’s physical disability. No, no, no. Such comments have just landed the speaker in hot water, in spite of the attempted “save.”
Satire is often thought of a subset of humor, but actually does not necessarily have anything humorous about them. Any latitude that satire enjoys is a function of fair use under copyright law. A satire tends to mock social conventions. When courts are presented with a satire case, they don’t say “this is a satire, so we will give it extra latitude.” Rather, they painstakingly set out the manner in which the new work comments on some social condition and use that as a significant factor in their analysis. It is almost as though satires are a favored subset of fair use, which often causes confusion among parodies, satires, and jokes.
A satire tends to mock social conventions. Unlike a parody, a satire can stand on its own and make a statement without borrowing from an original work.
When courts are presented with a satire case, they don’t say “this is a satire, so we will give it extra latitude.” Rather, they painstakingly set out the manner in which the new work comments on some social condition and use that as a significant factor in their analysis. Satires are an unspoken subset of fair use, which often causes confusion among parodies, satires, and jokes.
Courts haven’t said much about the intersection of satire and fair use, although several cases provide insight into how it might be treated if the court were to consider the issue:
The most recent case involved the artist Jeff Koons. He was paid $1.6 million to create a series of paintings entitled the “Easyfun-Ethereal” for Germany’s Deutsch Bank. He culled advertising images and his own photographs, scanning them into a computer and digitally superimposing the scanned images against backgrounds of pastoral landscapes to comment on the ways in which our most basic desires are depicted in popular images. In one particular instance, Koons scanned a photo by Andrea Blanch, titled “Silk Sandals by Gucci,” which was, as the title suggests, a photo of a pair of woman’s feet wearing Gucci sandals. Blanch had shot the photo for a Gucci ad. Koons incorporated part of the photo into his own artwork, which depicted four pairs of women’s feet and lower legs dangling over images of various dessert dishes.
Blanch, recognized her photo. She was not happy. She sued.
The court explained the satire in detail by describing the social comment being made, rather than sticking the satire label on the painting. In fact, the court doesn’t mention the word. The court focused on the first fair use factor (the purpose and character of use), and said it weighed in favor of Koons’ appropriation because the use of the photo was transformative and because its purpose was to demonstrate how advertising whetted our various appetites, not to sell shoes for Gucci. Koons used Blanch’s work to comment on its social meaning rather than to exploit its creative virtues.
The court concluded that Koons used Blanch’s photograph in a transformative manner to comment on its social meaning rather than to exploit its creative virtues. Koons wanted to “comment on the ways in which some of our most basic appetites for food, play, and sex are mediated by popular images.” Doesn’t this sound like the very definition of satire?
Before the Blanch case, Koons directed the creation of a sculpture called “String of Puppies” based exactly on a photograph of puppies. Koons’ work was an enlarged three-dimensional sculpture of the puppies painted in different colors. Aside from the size and color changes, the photograph and sculpture were essentially identical. Although Koons argued that he intended “to comment satirically upon contemporary values,” the court stated that to qualify as fair use the allegedly infringing work must comment or criticize the allegedly infringed underlying work. Confusing, right?
When Koons used Blanch’s photograph in “Niagara,” the artwork was commenting on how that photograph, along with other popular images, mediates society’s basic appetites for food, play and sex. When Koons copied elements of the puppies photo to create “String of Puppies,” the resulting piece did not comment on or criticize the original photo or any social norms in any way. That was obvious to the casual observer, which made it harder for him to argue convincingly that he was making some broader social commentary.
Finally, a parody must draw on another piece of work or a person, because a parody must comment on the very thing that is being commented on in order for people to recognize the parody.
My legal definition of a parody—drawn from an examination of the cases in this area—is the following:
1. A new, copyrightable work
2. based on a previously copyrighted work
3. to such an extent that the previous work is clearly recognizable
4. but not taking more from the copyrighted work than is necessary,
5. that criticizes or comments on, at least in part, the subject matter or style of the previous work, and
6. is not likely to hurt the value of the previous work.
Did you see any requirements regarding humor? Humor is absolutely not a requirement, and judges often go out of their way to say that they don’t think that the parody before them is funny.
Once your client understands parody, you can deliver the good news: A true parody does not have to be cleared.
The Supreme Court had not issued a controlling decision on parody until The 2 Live Crew case in 1994. The court held that the song “Hairy Woman” that The 2 Live Crew wrote, recorded, and released was a parody of “Oh, Pretty Woman.”
After starting off with a full verse of identical lyrics to Pretty Woman, 2 Live Crew went on to sing:
“Big hairy woman, you need to shave that stuff
Big hairy woman, you know I bet it’s tough”
The 2 Live Crew won their case on the parody issue.
To underscore how humor is never a part of the definition of parody, consider the case of “The Wind Done Gone,” a small and powerful novel about the slaves who populated Tara, the cotton plantation in Margaret Mitchell’s “Gone With the Wind.” In Mitchell’s book, the furniture was described in more detail than the many black people who made the place run. The Mitchell estate sued—and won an injunction at the trial court level—on the theory that this book was an unauthorized sequel. However, the estate lost on appeal and “The Wind Done Gone” was allowed to be published.
The book clearly makes commentary on the subject matter of “Gone With the Wind.” It takes characters right out of “Gone With the Wind” and tells their rich stories. So the fifth factor—the key factor—is very much in favor of “The Wind Done Gone.”
Just in case they don’t grasp this important concept, it may be simpler just to explain to your client what is not a parody:
•A copyrighted song presented in a funny way. A torch song sung by someone in drag or by a drunk character slurring through a song or singing off-key may (or may not) bring laughs, but they fail as parodies. You must clear this music.
•Changing a song slightly to fit your purposes. Changing “Michelle” to “Miquel” to make it appropriate to a character’s name may be necessary, but it is not a parody. The song must be cleared.
•A parody is not created when an impersonator or impressionist sings a song (without changing it) in a style of someone other than the person who made it a hit. Dana Carvey imitating President Bush singing “The Party’s Over” is not a parody. The song has to be cleared.
So when clients come in to you with the thought that they can perform a song because it is a parody, ask them about the commentary and make your own evaluation. After you have received their uneducated explanation, you can let them know all about the above or just give them this article to read. most clients who get into trouble in this area, do so because they simply don’t understand the distinctions among a parody, a satire, and a joke.
Copyright 2009, Metropolitan News Company