CHAPTER 10 WHAT IS PARODY? PART 1: INTRODUCTION The word “parody” likely conjures images of Weird Al Yankovic, Saturday Night Live, and the Lonely Island in the heads of the average person, but what how does copyright law treat these parodists? P a g e | 662
Many of the most famous parodists get permission from the person who owns the copyright in the original work to ensure they avoid copyright liability, but what happens if someone doesn’t?
“Weird Al� Yankovic has made a decades-long career writing and singing parodies of popular music.
Generally, parody is a work that pokes fun at another work by imitating it in a comic way. Ideally, parody merges entertainment with instruction and amuses the audience while also enlightening them. Parody is a form of social and P a g e | 663
literary criticism that has significant value as free speech under the First Amendment because it criticizes various aspects of society and helps develop popular culture. In order to poke fun at a work, the parodist must usualy use part of that work to recall it to the minds of his audience. When the parodist uses part of an original creative work without permission in order to comment on it, he is committing copyright infringement. The legal question is did she borrow too much to qualify for the defense of fair use? Parody is a form of fair use in copyright law. The first two examples of fair use in the copyright statute are criticism and comment. Parody is a form of both criticism and comment. Like any other fair use case, parodies must be P a g e | 664
evaluated under the four fair use factors to determine if the fair use defense applies. TIP: Please refer to Chapter 10 for a more substantial discussion of the fair use doctrine. The four fair use factors, however, are applied differently in situations involving parodies and satires. The starting point of the court’s analysis is determining whether defendant’s use is properly considered satire, parody, or neither. One thing is certain: if a court decides a work is not parody, the fair use defense will more likely fail.
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The Four Fair Use Factors 1. The purpose and character of the use 2. The nature of the copyrighted work 3. The amount and substantiality of the portion taken 4. The effect of the use upon the potential market A parody is not automatically fair use!
The first factor is, by far, the most important factor when a court does a fair use analysis of a parody. Under this factor courts examine whether the original is at least partially the target of the parody’s criticism or comment. The second factor is not heavily weighted in cases of parody because any work that merits P a g e | 666
parody is likely to be both well-known and creative enough to be close to the “core of intended copyright protection.” The Supreme Court has stated that since parodies almost always copy publicly known expressive works, the nature of the copyrighted work factor is generally not helpful, “in separating the fair use sheep from infringing goats.” Because parody must often take recognizable material from the original in order to convey its message, it is more likely to copy the “heart” of the original, and the court must take this into account. The question then, under the third factor, becomes not whether the parodist appropriated the most recognizable parts of the original, but whether the parodist took so much additional material that her use becomes unreasonable. P a g e | 667
The fourth factor is usually not important in situations involving parodies because parodies are unlikely to become substitutes for the originals in the marketplace. If the parody doesn’t target a different market than the original it probably will not qualify as a parody. It’s important that parodies are protected by fair use because a parody usually has to use some of the most distinctive parts of the original. Parody is an art form that cannot function without appropriation. Another reason why fair use is important for parodies is because rights holders often won’t give parodists permission to copy parts of their work because they don’t want to authorize a public criticism that may hurt the perception of their work.
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ON-LINE REFERENCES Trade Secrets Video (Trade Secrets Main Page) Seattle PI (Infringement Letter)
***
http://thetradesecretsofintellectualproperty.com/
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CHAPTER 10 WHAT IS PARODY? PART 2: PARODY V. SATIRE The terms parody and satire are often tossed around interchangeably in casual conversation, but the two terms have an P a g e | 670
important distinction when it comes to copyright law. A parody targets and mimics the original work to make its point, while a satire uses the original work to criticize something other than the original work, usually an aspect of society. Parody, which is directed toward a particular literary or artistic work, is distinguishable from satire, which more broadly addresses the institutions and mores of society.
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A Modest Proposal by Jonathan Swift
Probably the most famous satire of all time
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Courts give preference to parody over satire when analyzing a potential fair use because the parody must use part of the original work in order to comment on it. Many satires do not need to use any part of an original work at all to make the comment or critique they want to make. Parody needs to mimic the original to make its point, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing. TIP: A parody must specifically target the original work, and not just its general style, the genre of art it belongs in, or society as a whole. Complicating the analysis is the fact that many works can be considered both satires and parodies because they criticize both the original P a g e | 673
work itself and also other external matters in society. The following case illustrates the distinction between satire and parody. In 1995, Alan Katz and Chris Wrinn wrote and illustrated The Cat NOT in the Hat!, which told the story of the O.J. Simpson double murder trial in rhyming verse. The copyright holder to Dr. Seuss’ work, Dr. Seuss Enterprises, sued for copyright infringement. Katz responded by filing a declaration that stated The Cat in the Hat was the “object for [his] parody” and the portions of his book that derive from The Cat in the Hat were “necessary to conjure up the original.”
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Excerpt from The Cat NOT in the Hat! A happy town Inside L.A. Where rich folks play The day away. But under the moon The 12th of June. Two victims flail Assault! Assault! Somebody will go to jail! Who will it be? Oh my! Oh me! ‌ A plea went out to Rob Shapiro Can you save the fallen hero? And Marcia Clark, hooray, hooray Was called in with a justice play. A man this famous P a g e | 675
Never hires Lawyers like Jacoby-Meyers. When you’re accused of a killing scheme You need to build a real Dream Team. Cochran! Cochran! Doodle-doo Johnnie, won’t you join the crew? Cochran! Cochran! Deedle-dee The Dream Team needs a victory. Is this a parody of The Cat in the Hat?
The Cat NOT in the Hat also contained lines such as “One Knife? / Two Knife? / Red Knife / Dead Wife,” which mimics the first line in Dr. Seuss’ One Fish Two Fish Red Fish Blue
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Fish: “One fish / two fish / red fish / blue fish / old fish / new fish.” Under the first factor, the court held The Cat NOT in the Hat! simply retold the tale of the O.J. Simpson trial, but did not specifically parody Dr. Suess’ original work. The court said Katz’ use does broadly mimic Dr. Seuss’ characteristic style, but had no critical bearing on the substance or style of The Cat in the Hat. The court said that Katz and Wrinn merely used Suess’ copyrighted material to avoid coming up with something fresh and to get attention. The substance and content of The Cat in the Hat was not “conjured up” by the focus on the murders or the Simpson trial.
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Is this fair use?
The original
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The alleged infringement
The answer is no. This is not a fair use. Under the second factor, the court noted that the creativity, imagination and originality embodied in The Cat in the Hat and its central character tilted the scale in Suess’ favor, but the court also observed that the second factor has typically not been very significant. Under the third factor Katz and Winn insisted that they chose The Cat in the Hat because of the similarities between the two stories illustrated on the next page:
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Nicole Brown and Ronald Goldman were surprised by a “Cat” (O.J. Simpson) who committed acts contrary to moral and legal authority. The prosecution of Simpson created a horrible mess, in which the defense team seemed to impose “tricks” on an unwilling public, resulting in a verdict that a substantial portion of the public regarded as astonishing. Both stories also end with a moral dilemma.
The Court of Appeals agreed with the District Court that the above explanation was a post-hoc characterization of their work that was “pure shtick” and “completely unconvincing.” Under the fourth fair use factor the court noted that the good will and reputation associated with Dr. Seuss’ work is substantial, P a g e | 680
and found that market harm was at least more certain, and market harm could more readily be inferred. Mimicking the style of Dr. Suess was not enough to qualify The Cat NOT in the Hat as a parody because it did not specifically target The Cat in the Hat. The court in this case made it clear that a parody must target a specific artistic work that it borrows from.
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ON-LINE REFERENCES Trade Secrets Video (Cease & Desist)
Seattle PI (I Didn’t Know!)
***
http://thetradesecretsofintellectualproperty.com/
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CHAPTER 10 WHAT IS PARODY? PART 3: FAN PARODIES Fans often create fan fiction based on their favorite books or fan art based on their favorite movies or T.V. shows, but do these P a g e | 683
works qualify as parodies? Fan-created works are sometimes very popular online and are often widely tolerated by the creators of the original content, but they still may be breaking the law.
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Star Trek Slash Fiction
Is this a parody? Not likely!
Anyone who uses copyrighted material without permission is committing copyright infringement, but if they qualify as parodies P a g e | 685
there is a good chance the use will qualify as a fair use. Many rights holders choose to tolerate fan-created parodies because they recognize that the fans creating the parodies are essentially providing them free advertising. They don’t want to turn off other fans of their work by suing their fellow fans for copyright infringement. Some rights holders, however, aggressively enforce their copyrights so it’s important to discuss whether the fans that create these works will be “on the hook.” Like all cases of fair use, fans have a better chance of their use qualifying as a fair use if they are not profiting from their creation. For a more extensive discussion on fair use and fan art, see Part 9 of Chapter 10. P a g e | 686
TIP: Remember that every creator has the right to choose for themselves where they want to draw the line on enforcing their copyrights. It’s also important that these fans reply to requests from the copyright holder to remove content if they are contacted if they want to avoid expensive copyright litigation. The fact is that most fan fiction and fan art is committing copyright infringement and so if fans want to be 100% sure they will avoid being “on the hook� they need to contact the copyright holder to try to get a license for their use. Remember also that just because a fancreated work is determined to be a parody does not mean it automatically qualifies as fair use, it still needs to go through the four fair use factors. P a g e | 687
Parody does, however, help tilt the scales of fair use in favor of the person using parts of the copyrighted work. In one case of fan parody the artist Kevin Bolk drew an animated parody movie poster for the film The Avengers. He took issue with the fact that all of the characters seem to be assembled in heroic poses, except for Black Widow, who seems to be positioned in a way that only accentuates her rear-end.
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The Original Poster For The Avengers
The copyrighted work
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The Fan-Created Poster
Does this qualify as a parody?
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This fan-created poster is a good example of a subsequent work that qualifies as a parody because it comments on the original work. One copyright case concerning the concept of parody involved a re-telling of Gone With The Wind by Margaret Mitchell. Alice Randall wrote a book called The Wind Done Gone, which borrowed 18 characters from Gone With The Wind to retell Margaret Mitchell’s famous story from the perspective of Cynara, a mulatto half-sister of Scarlett. The estate of Margaret Mitchell brought a lawsuit for copyright infringement against Randall for using characters and scenes from Gone With The Wind without permission.
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Is This Fair Use?
The original
The alleged infringement
The court characterized The Wind Done Gone as a parody in the sense of critical commentary, despite the fact that it lacked a P a g e | 692
comedic tone. The court held that Randall’s use of the original was a specific criticism of the depiction of slavery and the relationships between blacks and whites in Gone With The Wind. Under the first fair use factor the court ruled the fact that The Wind Done Gone’s forprofit status was strongly overshadowed by how transformative it is. Randall’s use was transformative because her literary goal was to explode the romantic, idealized portrait of the antebellum South during and after the Civil War. The court noted that under the second factor, Gone With The Wind is entitled to the greatest degree of protection as an original work of fiction, but the second factor is given little weight in parody cases. Under the second factor P a g e | 693
the court decided that they could not conclusively determine if the quality and value of the materials used were reasonable. The court found the final factor to weigh in favor of The Wind Done Gone because it will not act as a market substitute for Gone With The Wind or its derivatives. The court thus found that The Wind Done Gone was likely to prevail under the fair use defense as a parody because it commented on Gone With The Wind. Examine the following examples of fancreated works and ask yourself if you think they would qualify as a parody in a copyright infringement lawsuit.
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Original
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Fan-created Work
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Original
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Fan-Created Work Are these parodies?
The “Ewoking Dead� image likely would not qualify as a parody because it is not directly P a g e | 698
commenting on either of the original works (Star Wars and The Walking Dead). While the painting in the second image is too old to qualify for copyright protection, it is more likely that a court would consider that painting a parody of the original works (The Starry Night by Vincent van Gogh and Batman). TIP: The Van Gogh painting might be in the public domain for anyone to use – see Chapter 12 (Public Domain)
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ON-LINE REFERENCES Trade Secrets Video (Trade Secrets Main Page) Seattle PI (Derivative Works)
***
http://thetradesecretsofintellectualproperty.com/
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CHAPTER 10 WHAT IS PARODY? PART 4: JEFF KOONS AND PARODY Jeff Koons is the self-proclaimed “most written-about artist in the world.” Koons’ work is a form of “appropriation art,” which uses pre-
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existing objects or images to comment on contemporary culture. As you might imagine, the artists whose work Koons appropriates have had problems with him using their work without permission. He has been sued many times for copyright infringement and a look at a few of these cases can help provide a better picture of how courts treat parodies. The following are examples of appropriation art from the past that have influenced Koons’ work. The ability to instantaneously copy electronically on the Internet has made this type of appropriation art more common in artistic works, but is it against the law? P a g e | 702
“Glass and Bottle of Suze” by Pablo Picasso (1912)
Appropriation of fragments of newsprint, wallpaper, and construction paper
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“Fountain” by Marcel Duchamp (1917)
Appropriation of a urinal
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“Lobster Telephone” by Salvador Dali (1938)
Appropriation of a telephone
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The fact that Koons’ work regularly sells for substantial sums offers rights holders further incentive to enforce their rights through litigation. The largest sum known to be paid for a work by Koons was for Tulips, which sold for over $33 Million dollars in 2012. Obviously some people think Koons’ work has great value and many critics agree, while other critics dismiss Koons’ work as crass or offensive. His work is in a similar vein as Andy Warhol, using everyday objects to show that mass production of commodities and images had resulted in a deterioration of the quality of society. The takeaway from the following examples involving Jeff Koons is that if you want to use someone else’s work for parody, make sure your work makes an obvious and specific comment on the original work. P a g e | 706
Jeff Koons
Is his work parody?
The first published litigation against Jeff Koons came in the late 1980s when he was sued for creating a sculpture called “String of Puppies.” The sculpture was based on a black P a g e | 707
and white photograph by Art Rogers named “Puppies.” Koons first encountered Rogers’ “Puppies” on a postcard. Koons removed the copyright notice on the back of the postcard and gave it to his assistants with instructions on how he wanted a sculpture made from the image. The U.S. District Court ruled that Koons’ sculpture did not qualify as a fair use because all four fair use factors tipped in favor of Rogers. On appeal, Rogers’ lawyers argued that there was no reason for Koons’ sculpture to “conjure up” the original photo because Koons didn’t have a specific purpose to make a point by comparison. Koons’ lawyers argued the sculpture was a direct comment on the postcard since the card P a g e | 708
was representative of the kind of mass-produced images that Koons was critiquing.
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Koons v. Rogers
Not a parody.
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The Appeals court ruled that “String of Puppies” was not a parody of “Puppies” by Art Rogers because “Puppies” was not the object of the parody. The court said the satire does not need to be only of the copied work, and may also be a parody of modern society, but the copied work must at least partly be the object of the parody because otherwise there would be no need to “conjure up” the original work. The following year, Koons was in court again for making a sculpture using Odie from the Garfield comic strip. The subject of the lawsuit was a sculpture entitled “Wild Boy and Puppy.” Koons admitted that the “puppy” in the sculpture is based on a color picture of Odie that he instructed artisans to turn into a three dimensional statute. He also instructed the P a g e | 711
artisans to make Odie’s tongue longer to increase structural stability. Four identical porcelain sculptures of “Wild Boy and Puppy” were produced, three of which were sold for a total of $367,000 and Koons kept the fourth. Koons once again argued that his sculpture was a parody of society at large. Odie was used to symbolize the cynical and empty nature of society. Koons explained that he was using the Odie image as an object of modern mass culture to emphasize that culture has become dangerously empty and cynical.
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United Features Syndicate v. Koons
Not a parody.
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The court again rejected Koons’ argument because the original work (The Odie character) was not at least partially the object of the parody. Koons had admitted that his sculpture was not intended to be a parody of the Odie character, he even testified that he was not aware of the identity of the cartoon character when he chose it as a source for his sculpture. Since Koons could have used other figures to make the same point, the court held the sculpture could not be a comment, criticism, or parody directed at the Odie character. The Koons examples weigh heavily in favor of the original content creator over the parodist, but at what point have we gone too far? Had a similar distinction been applied to other works of parody, we might not have some of our P a g e | 714
most famous art, especially art that satires or comments on popular culture. For example, without making exceptions for parodies, would we still have Andy Warhol’s iconic “Campbell’s Soup Cans?”
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Campbell’s Soup Cans by Andy Warhol (1962)
Appropriating images of Campbell’s soup
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ON-LINE REFERENCES Trade Secrets Video (A New Frontier)
Seattle PI (“Post-Greed”/ “IP Era”)
***
http://thetradesecretsofintellectualproperty.com/
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CHAPTER 10 WHAT IS PARODY? PART 5: MORE PARODY CASE EXAMPLES Explaining how courts treat parody in terms of copyright law is best illustrated by going through past case examples. The point of these cases is that the borrower does not need to P a g e | 718
only parody the original work, the subsequent use simply needs to differ from the original in a way that comments on the message of the original. This is because a work that borrows from an original, but does not criticize or ridicule the original, does not have parody’s need to borrow from the original in order to make its point. A. ENERGIZER BUNNY EXAMPLE One case involved a spoof of the famous “Energizer Bunny” commercials by the Coors Brewing Company. The rights holder of the original Energizer Bunny commercials is the Eveready Battery Company. The commercial appears to be a normal beer commercial until everything grinds to a halt and Leslie Nielsen appears in a dark suit, fake white rabbit ears, a P a g e | 719
fuzzy white tail, and rabbit feet that look like pink slippers. He carries a drum with the Coors Light logo on it.
Original Energizer Battery commercial
Coors Light parody commercial
This was a parody.
Mr. Nielsen beats the drum, spins around several times, and resumes walking after P a g e | 720
recovering from his dizziness. A voice then says “Coors Light, the official beer of the nineties, is the fastest growing light beer in America. It keeps growing and growing and growing.” The court decided the first fair use factor, the purpose and character of the use, weighed in Eveready’s favor. The second factor was determined to be neutral at best for Eveready since the original work was commercial. For the third factor the court ruled that Coors did not borrow an impermissible amount because they only took enough to “conjure up” the original. It was particularly notable that the Coors commercial didn’t imitate any particular Energizer commercial. The third factor weighed against Eveready. The fourth factor also weighed against Eveready because viewers P a g e | 721
would not stop watching the Eveready commercials so they could watch the Coors commercial instead. B. WONDERFUL WORLD EXAMPLE Another example of parody in copyright law involved the song What a Wonderful World and a parody by the rapper Ghostface Killah called The Forest. The opening lines of each song are included below along with links to the songs.
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Wonderful World
I see trees of green, red roses too I see them bloom for me and you And I think to myself, what a wonderful world
Louis Armstrong performing Wonderful World
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The Forest
I see buds that are green, red roses too I see the blunts for me and you And I say to myself, what a wonderful world
The Forest by Ghostface Killah
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Under the first fair use factor, the court decided the question is not whether Ghostface Killah intended his song to be a parody of Wonderful World, but whether, considered as a whole, The Forest may reasonably be perceived as commenting on the message of Wonderful World. TIP: The artist doesn’t need to intend his work to be a parody, as long as it can reasonably be perceived as a parody The court ruled that The Forest provided an ironic contrast to Wonderful World by portraying the modern world as corrupt. The court ruled that Ghostface was commenting on the innocence reflected in the lyrics of the P a g e | 725
original in order to drive home its message more effectively. The court also noted that The Forest’s version is recited off-key, in a tone that might be perceived as sarcastic. The contrast with Wonderful World allowed The Forest to comment on the naivetÊ and lack of realism of the original. The court ruled that The Forest’s use of Wonderful World wass indisputably a parody of the message of the original. Finally, the court noted that Wonderful World itself was the target of the parodic criticism, and Ghostface was not merely using the original song as an ironic device to comment on what he views as a less than wonderful world. The court noted the use of Wonderful World in Good Morning, Vietnam as an example P a g e | 726
of using the song to comment on the world depicted by the filmmaker, but the song itself is not parodied. These types of uses, where the original is not used to comment specifically on the original work, require licensing. Barry Levinson, the director of Good Morning Vietnam, was not specifically commenting on or criticizing the song Wonderful World.
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The scene from the film referenced by the court is linked below.
Wonderful World used in Good Morning, Vietnam
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C. FAMILY GUY – WISH UPON A STAR EXAMPLE Another example of parody in copyright law came when the creators of the TV series Family Guy were sued for their episode entitled “When You Wish Upon a Weinstein.” The lawsuit was brought by the sole copyright holders of the song “When You Wish Upon a Star,” which was originally written for the movie Pinocchio. The creators of Family Guy sought a license to use the song, but the rights holder refused. The link to the Family Guy scene in question is below The scene at issue depicts Peter looking out of a window up at the night sky in a manner similar to Gepetto in Pinocchio when Gepetto is wishing for a “real boy.” Peter sings a song P a g e | 729
entitled “I Need a Jew,” which has a similar tune to “When You Wish Upon a Star.”
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Family Guy - “I Need a Jew” Nothing else has worked so far, So I’ll wish upon a star, Wondrous dancing speck of light, I need a Jew.
Lois makes me take the rap, ‘Cause our checkbook look like crap, Since I can’t give her a slap, I need a Jew. Where to find a Baum or Steen or Stein P a g e | 731
To teach me how to whine and do my taxes? Though by many they’re abhorred, Hebrew people I’ve adored.
Even though they killed my Lord I need a Jew.
The alleged infringer
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The court found that by juxtaposing the “saccharine sweet” song “When You Wish Upon a Star” with “I need a Jew” the creators of Family Guy called to mind a warm and fuzzy view of the world that is ultimately nonsense; wishing upon a star does not, in fact, make one’s dreams come true. The court held that the defendant’s use commented on both the original work’s fantasy as well as Peter’s fantasy of the superiority of Jews. The court also noted that Family Guy’s visual reference to Pinocchio makes plain that the creators of the episode were clearly attempting to comment in some way on the wishful, hopeful scene in Pinocchio with which the song is associated.
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Under the first factor the court noted that the lyrics of “I need a Jew” are almost entirely different, and strikingly different in ton and message, meaning the factor weighed in favor of Family Guy’s creators. The second prong, as usual was given little weight. The third factor weighed in favor of Family Guy’s creators because there was evidence of an internal creative dispute about how much of the original to take, so the borrowing that occurred was necessary to allow the parodic nature of the work to come through. Under the final factor the court noted the Supreme Court’s intention for the parody doctrine to protect new works that have reason to fear they will be unable to obtain a license from P a g e | 734
copyright holders who wish to shield their works from criticism. D. LUIS VUITTON DOGS EXAMPLE The final example of the parody defense in copyright law involves Luis Vuitton and a maker of dog toys. Haute Diggity Dog, LLC, is a company that markets plush stuffed toys and beds for dogs under names such as “Chewy Vuiton,” “Chewnel # 5,” “Dog Perignon,” “Furcedes,” and “Sniffany & Co.” The court found that using markings and colors similar to Louis Vuitton on dog toys was a parody. Under the second factor the court chose not to address the nature of the copyrighted work P a g e | 735
other than to acknowledge that it is a creative design.
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The Alleged Infringers
“Furcedes”
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The Alleged Infringers
“Chewy Vuiton”
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Under the final factor, the court noted that the parody is not possible unless the logo and name are similar to those of Louis Vuitton, and therefore the parody constituted a fair use. The court also noted that Louis Vuitton’s primary market is high-end women’s apparel, not pet toys, and that there was no effect on Louis Vuitton’s potential markets or control of its copyrights. Louis Vuitton was not successful in their suit against Haute Diggity Dog because their dog toys were determined to be a parody of Louis Vuitton products.
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ON-LINE REFERENCES Trade Secrets Video (Trade Secrets Main Page) Seattle PI (I Didn’t Know!)
***
http://thetradesecretsofintellectualproperty.com/
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CHAPTER 10 WHAT IS PARODY? PART 6: NETIQUETTE: PARODY OR BULLYING? Now that we have covered the requirements for a work to legally qualify as a parody, we will now address the equally P a g e | 741
important concern of when a so-called parody “crosses the line.” It often takes a bit of intestinal fortitude and a sense of humor to endure the comment sections of online articles or blog posts. Digital discourse often turns very nasty, especially when it is anonymous. Free online discussions are very valuable, but that value evaporates when the discussion descends into bigoted and hateful remarks. Some commentators defend their hateful or malicious online behavior as “parody.” As the previous sections of this chapter have demonstrated, however, a work only qualifies as a parody if it comments critically on the work from which it borrows. It is important to clarify that parody does not allow bullying and to draw a clear distinction between the two. P a g e | 742
Parody is a form of protected expression under the First Amendment to the U.S. Constitution, which means that parody has the potential to bestow great power on those who use it correctly. But, as Spider Man taught us all‌ Spider Man
Use the power of parody responsibly!
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Recently, a disturbing practice has emerged of people defaming and bullying others on the Internet while justifying the bullying as a parody of the targeted individual. This justification is misguided because in copyright law, the only things that can be parodied are copyrightable works, which does not include people. The author of this book believes that online bullying and the dangers of Internet harassment are issues that need to be addressed more directly by our society.
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First they came for the communists, and I didn't speak out because I wasn't a communist. Then they came for the socialists, and I didn't speak out because I wasn't a socialist. Then they came for the trade unionists, and I didn't speak out because I wasn't a trade unionist. Then they came for me, and there was no one left to speak for me. -Martin Niemรถller
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Martin Niemöller
“First they came…” P a g e | 746
The goal of copyright law is to advance the arts and sciences. Legitimate parodies fill that role by providing meaningful criticism and insightful commentary on the original work. Those who seek to characterize their hateful bullying as parody will never be successful because that type of speech couldn’t be further from the goal of copyright law. Parody enhances civil discourse; hate speech destroys it. As an example, if I photograph someone’s mother, the photograph I create is a copyrighted work. If someone else uses that photo to defame the mother in question and say nasty things about her, they are not parodying the photo because they are not criticizing or commenting on the original work (the photo). Instead, they are misappropriating the P a g e | 747
copyrighted photograph for the purpose of defaming someone’s mother as a person. A. WEBSITE BANNER EXAMPLE The following banner of an Internet website was left blank when the editor of the website resigned over a scandal related to his website content.
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Website Banner
People then created what they considered to be “parodies� of the website banner above by inserting other (in)famous characters as replacements.
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“Parodies” of the website banner
Bozo the Clown
Adolf Hitler
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Charles Manson
O. J. Simpson
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Osama Bin Laden These are not parodies!
Legally, these do not qualify as parodies because they are not making a direct comment on an original copyrighted work. Fortunately these were not placed prominently in search result rankings.
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B. THE HATE GROUP EXAMPLES The images below were created by anonymous Internet users to mock and defame an opposing party in a legal dispute. These online bullies used a photograph of an attorney and attempted to defend their defamation as parody, but we know that these images are not parody because they are not commenting on or critiquing the original work (the photograph). Instead, the photograph has been used to create hateful and juvenile images. Not only does this sort of imagery not qualify as parody; it likely qualifies as defamation.
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“Parodies”
Homophobic
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Disgusting
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Sexist and mean-spirited
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TIP: If your “parody” contains false or misleading statements about a person that are intended to injure that person’s reputation, you are likely committing libel. Some of these examples are essentially the equivalent of going to someone’s house and spray-painting “does your butt hurt” or “faggot” across the person’s front door. This is especially true if the hateful images are tagged and optimized to be inadvertently found and viewed by as many people as possible. These types of mean-spirited “images” are about as far as possible from the types of works that the Copyright Act seeks to protect. These uses advance nothing besides hateful P a g e | 757
dialogue that erodes the quality of the Internet as a medium for legitimate discourse.
Hate speech like this is not tolerated, so why should we tolerate it online?
“Google Bombing” or “Googlewashing” is another form of bullying that is becoming more prevalent online. These terms refer to practices such as creating large numbers of links P a g e | 758
that cause a webpage to have a high search ranking. This is often done for humorous or satirical purposes, but it does not qualify as a parody under copyright law. Google bombs date back to 1999 when a search for “more evil than Satan himself” resulted in Microsoft being the top result. The below examples of “Google Bombing” show a website community posting hateful and defamatory remarks about a woman whose employer they didn’t like. By repeatedly writing her name in bold on a public website, they ensured that anyone searching online for the woman’s name would be led directly to the hateful comments. Their intended goal was to indirectly harass and frighten this woman and to damage her professional reputation. P a g e | 759
v
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C. THE PUBLIC FIGURE EXAMPLE As another example, in May 2003 popular journalist Dan Savage held a contest to create a definition for the word “santorum.” The winning definition was “a frothy mixture of lube and fecal matter that is sometimes the byproduct of anal sex.” Savage then set up the websites santorum.com and spreadingsantorum.com so that his definition of the term would be one of the first search results.
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Is this civil discourse?
This is what you see when you go to santorum.com
While Savage was responding to insensitive homophobic comments made by conservative politician Rick Santorum, he could have done so in a much more civil way. People P a g e | 762
seem to be fine with this type of rhetoric online, but how would you react to someone going around a city telling people that this is what a politician’s name meant? What if this message was displayed on billboards or distributed in leaflets? The Internet is the newest medium for sharing information and messages, but the damage from hateful or defamatory speech is just as impactful. What kinds of examples are we setting to the next generation of Internet users? In some cases, online bullying can be tantamount to stalking. A woman from Georgia was recently awarded a permanent protective order against an online blogger and commentator who had engaged in a vicious smear campaign against her. While the blogger claimed that he never personally visited or contacted the woman directly, the court found that his violent and P a g e | 763
threatening remarks made on his website were not protectable as free speech or parody since they caused the woman to have a reasonable fear for the safety of herself and her family. Among other things, the protective order required the blogger to remove from his website any and all content referencing the abused woman. The lesson here is that bullying and harassment are just as harmful online as they are in “real life.” The difference is that the Internet allows people to speak and share anything. People can say whatever hateful or bigoted things they want, because they often aren’t risking the consequences they would face for the same behavior in “real life.” However, in reality, as the above example shows, there are repercussions for engaging in hateful or defamatory behavior on the Internet. P a g e | 764
Sadly, for those being bullied, the difficulty lies in seeking any kind of recourse or protection when the bullies operate under the anonymity of the Internet. Meanwhile, the bullies themselves may believe they are outside the scope of the law, or that the Internet doesn’t need to be governed by the same everyday standards of ethics our society adheres to. They may not even realize that their actions rise to the level of criminal behavior. Even leaving aside the issue of legality, bullying of any kind is unethical and detrimental to our society. It is important to shape our rules and norms concerning online behavior to reflect this important value. Reports of adolescent depression and suicide as a result of online bullying have filled national news headlines over the last several years, highlighting the dangers of P a g e | 765
perpetuating online hate speech for future generations. For better or worse, the next generation of children will grow up in a digital world. This is why it is essential to engage in meaningful discourse now over the role of the Internet as it relates to bullying and harassment. D. IT CAN GET BETTER! There are some great strides being made in this endeavor. Earlier we pointed out Dan Savage’s less-than-artful “Google Bombing” of Rick Santorum. It must also be mentioned that Savage has done great work to combat online bullying. In September 2010, Dan Savage and his partner created a YouTube video to inspire hope for young people facing harassment. That video has inspired 50,000 similar user-created videos for the It Gets Better Project, P a g e | 766
which seeks to provide hope for lesbian, gay, bisexual, transgender, and other bullied teens by letting them know that it gets better, and to create and inspire the changes needed to make it better for them.
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The It Gets Better Project
Offering help to victims of bullying
As another postivie example, Major League Soccer has a campaign called “Don’t P a g e | 768
Cross The Line,� which promotes unity, respect, fair play, equality, and acceptance throughout the soccer community. People are encouraged to take a pledge to not tolerate discrimination, bias, prejudice, or harassment of any kind.
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Don’t Cross The Line
We shouldn’t tolerate “crossing the line” online
Promotion of equality and acceptance on the Internet could do a world of good for society P a g e | 770
as a whole, especially for those who bear the brunt of vicious personal attacks online. Perhaps a similar pledge to speak civilly online would be useful. This value is often reflected in law firm corporate policy. Our firm believes that all people are created equal that includes people of color, people from different parts of the world as well as gay people, lesbians and transgendered people. We do not do business with people or companies that fee differently. The melting pot or tapestry of diversity created in America is what makes us not only strong but special.
McCormack Intellectual Property PS – Diversity Policy
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Popular entertainers, like actors and musicians, often use their influence to raise awareness and increase tolerance amongst their fan base. These public figures provide a powerful voice against bullying and hateful behavior.
"At this point I have a request for our fans. If any of you in any way hate homosexuals, people of different color, or women, please do this one favor for us -- leave us alone! Don't come to our shows and don't buy our records." - Kurt Cobain
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All of us are currently involved in cocreating the digital world, and we hope that online discourse moves in a more civil direction with the understanding that people can be seriously hurt by online bullying. Adult rhetoric has moved from the values of Smallville to more closely mirroring the apocalyptic vision of judgment day in Terminator.
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The Terminator
We need to “terminate� hateful online speech
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“Fear is the path to the dark side. Fear leads to anger. Anger leads to hate. Hate leads to suffering.� -Yoda
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The Internet needs less anger, hate, and suffering. People need to become more sentient to the effects of their actions online. Let’s all take a step back from the dark side and try to have respectful online conversations, rather than letting discourse devolve into insults and namecalling. The time is now to make sure that digital world is one that welcomes everyone and treats their opinions with respect.
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ON-LINE REFERENCES Trade Secrets Video (A New Frontier) Trade Secrets Video (Cease & Desist Letters) Seattle PI (“Post-Greed”/ “IP Era”) Seattle PI (I Didn’t Know!)
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http://thetradesecretsofintellectualproperty.com/
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CHAPTER 10 WHAT IS PARODY? PART 7: MYTHS Here are some of the myths of Parody debunked. P a g e | 778
Myth Busters No. 36
“If I only use a small portion of the original it will qualify as a parody.� False. There is no percentage amount that qualifies or disqualifies a work as a parody.
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Myth Busters No. 37
“If my use of the original is funny it will qualify as a parody.� False. A work does not need to be funny in order to qualify as a parody, and not all funny uses of a prior work are parodies
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Myth Busters No. 38
“I don’t plan to make any money from my parody so I won’t be liable for infringement.” False. While a for-profit parody is less likely to qualify as fair use, the fact that you don’t plan to make money from your work does not mean you won’t be liable.
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Myth Busters No. 39
“If a court decides my work qualifies as a parody it will certainly also decide it’s a fair use. False. Deciding a work is a parody is simply the first step in a court’s analysis. Like all other fair use cases, parodies must also be examined under the four fair use factors.
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ON-LINE REFERENCES Trade Secrets Video (What is Copyright Infringement?) Trade Secrets Video (De Minimus) Seattle PI (“Post-Greed”/ “IP Era”) Seattle PI (Infringement Letter)
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http://thetradesecretsofintellectualproperty.com/
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CHAPTER 10 WHAT IS PARODY? PART 8: JUST THE ESSENTIALS Here are the “essentials” of Parody.
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Just the Essentials
Parody: “Bite Sized”
Parody is an important part of the law that helps to enrich on cultural discourse. Sadly many wear the “mask of parody” while they bully and harass. These people put everyone at risk. If you are going to do a parody, take a hint from the Seattle Sounders and “don’t cross the line”.
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Just the Essentials
Parody: “Bite Sized”
Parody is not making fun of people.
It is not
bullying people. It is a special carve-out for artists commenting on society. It is misunderstood so don’t rely on this defense unless you “get it right”.
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ON-LINE REFERENCES Trade Secrets Video (Trade Secrets Main Page) Seattle PI (Seattle Copyright Lawyer)
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http://thetradesecretsofintellectualproperty.com/
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