PTC FORUM

Online Journal of the Patent, Trademark and Copyright Research Foundation

USA / COPYRIGHT / FAIR USE - PARODY

The new significance of the four Fair Use factors as applied to Parody

Elizabeth Troup Trinkovitch

Tulane Journal of Technology and Intellectual Property, Vol 5, Spring 2003

It is the primary purpose of this article to discuss the validity of parody in the light of, first, the concept of fair use in copyright and, second, the United States Supreme Court's judgment in the case of Campbell v Acuff-Rose Music Inc. The article points out that, to help courts in deciding which uses of copyright material are fair, the US Copyright Act specifies four factors to be taken into account: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational use; (2) the nature of the copyright work; (3) the amount and substantiality of the portion used in relation to the copyright work as a whole; and (4) the effect of the use on the potential market for or value of the copyright work. As to parody, this entails "the use of some elements of a prior author's composition to create a new one which, at least in part, comments on that author's works… Parody needs to mimic an original to make its point". In the Campbell case a rap group parodied a singer's rock ballad, "Pretty Woman". The Supreme Court noted that the rap song contained quintessential parody and that the parody was therefore a new work, transforming the original copyright ballad into something new. When a new work is transformative, - even if admittedly commercial, - "market substitution is at least less certain and market harm may not be so readily inferred". Although the Supreme Court remanded the case for further evidence, its judgment can, in the opinion of the author of this article, "be viewed as somewhat of a victory for parodists". Moreover, the Court may have moved away from the traditional emphasis on the fourth fair use factor towards a greater emphasis on the first. The author considers that the shift of emphasis may open the door for increased fair use protection for new, transformative works. He examines the public policy aspects of copyright protection and stresses the need to maximise the benefits to society of gaining new works, while still providing sufficient incentive to copyright owners to create. Much depends on the nature of the new or transformative work, as the Supreme Court said in the first paragraph of its judgment - an implicit reference to the opening words of the first fair use factor. As for the fourth factor, this, no less than the other three, may be addressed in the Court's opinion only through a "sensitive balancing of interests". Where parodies are concerned, according to Justice Kennedy, "the first factor … itself concerns the nature of parody… The second factor adds little to the first… The third factor is likewise subsumed in the definition of parody… As to the fourth factor, it is legitimate for parody to suppress demand for the original by its critical effect [but] what it may not do is usurp demand by its substitutive effects… " The author makes it clear that parody cases may be distinguished from other fair use cases, such as Harper & Row v Nation Enterprises, but maintains that the judgment in the Campbell case may be interpreted in a way that aligns with the public benefit goals of copyright. [20097]