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What is the Fair Use Exception to Copyright Infringement for parody?

Question:  What are the limits of the "fair use Exception" under the  US Copyright act for a parody?

 To understand the fair use exception with parody, I recommend reading the landmark case of Mattel v. MCA.

In a discussion of the amusing Mattel vs. MCA lawsuit, Randy Cassingham notes in "The Stella Awards" the connection between Lilli and Barbie:

“A professional floozy of the first order, Bild Zeitung’s Lilli traded sex for money, delivered sassy comebacks to officers, and sought the companionship of ‘balding, jowly fatcats’. . . .

While the cartoon Lilli was a user of men, the doll (who came into existence in 1955) was herself a plaything – a masculine joke, perhaps, for West German males who could not afford to play with a real Lilli.

A German brochure from the 1950’s confided that Lilli (the doll) was ‘always discrete’, while her complete wardrobe made her the ‘star of every bar’. (1)”

           In accessing "the purpose and character of the use," the fact that the new work, produced by the defendant, is "transformative" or "adds something new, with a further purpose or different character" is strong evidence that the use is a fair use.  See Harper & Row, 471 U.S. at 562.  

In fact, "the more transformative the new work, the less will be the significance of the other factors, like commercialism, that may weigh against a finding of fair use." Id. at 579.  As noted in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579, 114 S.Ct. 1164 (1994), a "transformative work" is one that alters the original work "with new expression, meaning, or message."

            The most common example of a “transformative work” is that of a parody. 

A parody, which duplicates a substantial portion of an original work in the form of a mockery, is generally found to be a fair use of copyrighted material.  See, e.g., Campbell, 510 U.S. at 594-96, 114 S.Ct. 1164 (holding that 2 Live Crew's parody of "Oh, Pretty Woman" using the words "hairy woman" or "bald headed woman" was a transformative work, and thus constituted a fair use); Mattel, Inc. v. Walking Mountain Prods., 353 F.3d 792, 796-98, 800-06 (9th Cir. 2003) (concluding that photos parodying Barbie by depicting "nude Barbie dolls juxtaposed with vintage kitchen appliances" was a fair use). 

            In this sense, even exact copies can be found to be transformative, and therefore a fair use, so long as the copy serves a different function than the original work.  Kelly, 336 F.3d at 818-19. 


Note:  We are not lawyers, and this page is not legal advice.  For legal advice, consult a qualified attorney, not this web page.




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