Parody, Satire, & Fair Use
In the world of comedy and creative expression, satire and parody are two related concepts, but with important, subtle nuances that qualify them for different levels of protection under a 1st Amendment fair use analysis. Both often aim to provoke laughter and thought by exaggerating, mocking, or casting their subject matter in a different light to make a point, but with different intentions and targets.
Keep in mind that what is “legal” isn’t necessarily “practical” – fair use is an affirmative defense, meaning that it is an argument that must be made in court (which typically requires paying thousands or tens of thousands of dollars to an attorney to make the aforementioned argument). While a clear-cut instance of fair use may dissuade a lawsuit, this is no guarantee; the outcome revolves around a judge applying the law regarding artistic expression, involving a highly-subjective, fact-intensive analysis with few bright-line rules that will vary from case to case. While a good copyright attorney can explain and apply the factors the court will analyze, it is impossible to guarantee the stance of a potential opposed party, let alone the outcome of a lawsuit.
Exploring Parody
Parody is a form of humor that imitates part of an original (often copyrighted) work for comedic effect. While this is similar to satire, unlike satire, parody uses a work or part of a work (i.e. book, character in a tv show, etc.) to make a comment specifically on the work, or part of a work, taken from.
Parodies can take many forms, from comedic films that spoof popular movies (i.e. the Spaceballs character Dark Helmet making fun of Darth Vader from Star Wars), to musical compositions that mimic well-known songs with altered lyrics. This includes 2 Live Crew’s song, Pretty Woman, which was a parody of the Billy Joel song Pretty Woman, in which 2 Live Crew utilized lyrics discussing the less-glamorous aspects of prostitution, poking fun at the more-sterilized, positive aspects in the Joel song. This particular example came to the Supreme Court in Campbell v. Acuff-Rose Music, Inc, becoming one of the few nationwide guideposts in a fair use analysis of parody.
In Campbell v. Acuff-Rose, the court found that the 2 Live Crew song was a parody of the original song (as opposed to satire). The court went on to elaborate that parody involves a necessity of taking from the original work in order to associate the commentary of the parody with the specific work it has taken from.
“Parody presents a difficult case. Parody's humor, or in any event its comment, necessarily springs from recognizable allusion to its object through distorted imitation. Its art lies in the tension between a known original and its parodic twin. When parody takes aim at a particular original work, the parody must be able to "conjure up" at least enough of that original to make the object of its critical wit recognizable. See, e. g., Elsmere Music, 623 F. 2d, at 253, n. 1; Fisher v. Dees, 794 F. 2d, at 438-439. What makes for this recognition is quotation of the original's most distinctive or memorable features, which the parodist can be sure the audience will know. Once enough has been taken to assure identification, how much more is reasonable will depend, say, on the extent to which the song's overriding purpose and character is to parody the original or, in contrast, the likelihood that the parody may serve as a market substitute for the original.”
However, this is not to say that parody is always safe. In Disney v. Air Pirates, Air Pirates was a comic book featuring near-perfect replicas of Disney characters in adult situations involving explicit sexuality and drug use. The 9th Circuit found that a near-perfect replica of Disney characters was not protected by fair use, with the result of Disney winning its lawsuit against the comic book publisher. Though the court said that this was too much of a taking, it did not elaborate exactly how much of the original material can be used.
Air Pirates commenting on their loss in court
Defining Satire
Satire, much like parody, is an artistic form of expression that uses humor, irony, exaggeration, or ridicule to criticize or mock another subject apart from the material satirized. A recent example of this at the Supreme Court was the Andy Warhol Foundation for the Visual Arts v. Goldsmith.
The Warhol screen print, used as a Vanity Fair cover, next to Goldsmith’s photo
The subject matter of this case was an Andy Warhol painting that used a photo of Prince looking vulnerable and uncomfortable (shortly before he walked out of the photo shoot) as the basis for a screen print in the pop art style. This work was made as a comment on the dehumanizing effect of celebrity by removing much of the detail that made Prince look vulnerable, and using bright, saturated colors to portray him as a larger-than-life figure, arguably a 180 degree turn from the feel and message of the original. Because this was not a comment specifically on the work that was being taken from, that is, the photo taken by Goldsmith, this would not be an instance of parody, even if the photo would arguably fall into the genre of pop culture that the painting was made to critique - if you drew out that Venn diagram, the photo would have been a tiny part of the broader pop culture being commented on. When the Court issued its opinion, it specifically commented on the different levels of fair use protection between parody and satire.
Essentially, for a critique to be parody, there must be an arguably perfect (or at least a nearly perfect) Venn diagram overlap of the material that is taken from and the material about which the parody is commenting.
Distinguishing Between the Two
Parody uses the work of another to make a statement on the particular work that it takes from, whereas satire may similarly take from the work of another, but to make a comment on something that is not limited to the work it takes from. For example, if I made a parody of Spider-Man, say, “Spider-Dude,” to make a comment on Spider-man itself, then this would be parody; whereas, if I used the same exact Spider-Dude to make a commentary on the pop culture, superheroes in general, television, movies, or other topics, even if it was the same exact Spider-Dude and the comment was partially on Spider-Man (i.e. commenting on pop culture could partially be a commentary on Spider-Man as this intellectual property is part of pop culture), this would be an example of satire.
Two shows that are masterful examples of both parody and satire are South Park and The Daily Show. For instance, when South Park had Tom Cruise as a character working in a fudge factory in the episode “200” (season 5, episode 14), this was likely an example of parody as it was likely making a commentary limited to Tom Cruise himself. Meanwhile, The Daily Show’s first book, America: The Book, altered a photo of a member of Congress to make a commentary that Congress was full of flesh-eating zombies. This was a commentary on Congress as opposed to the photo that they altered, and so this is likely an example of parody (keep in mind, I’m not a judge, and even these fairly clean-cut examples would ultimately be subjective determinations).
A parody of Tom Cruise in South Park
Note that the version of South Park airing in England did not include this episode as the parody laws are different in other countries, and that jurisdiction would have allowed Tom Cruise to win a lawsuit more easily, hence his threat that he would “sue you in England” in the episode.
Conclusion
In conclusion, satire and parody are distinct forms of humor with different targets, even if they serve similar purposes in entertainment and cultural critique. The lines between these two forms of critique can be blurry, and for good reason – hardline rules produce unanticipated consequences in divining the meaning or message of any particular instance of satire or parody, and a one-size-fits-all approach to evaluating art is something the courts have wisely attempted to avoid when possible.
These determinations cannot be made prior to litigation with particular ease – it could certainly be argued that the 2 Live Crew song was more of a commentary on sexuality, pop culture, or other issues outside of the original Pretty Woman song that would have pushed it from the parody category into satire. This is the reason why competent copyright attorneys almost always reply with their favorite term of “it depends.” Had 2 Live Crew shown up in my office and asked if their song was parody and protected by a fair use argument, while I may have leaned towards it being parody as opposed to satire, and that the amount of the taking was still within fair use, “it depends on how the judge sees it” would have been my ultimate answer to both questions (and keep in mind, different judges had different opinions and rulings as this case made its way to the Supreme Court).