Written by Guest Author, Marks Gray Associate Logan McEwen
In the United States, a copyright-protected work can be utilized without authorization of the copyright owner if it is a “fair use” of the copyright-protected work.
Fair uses of copyright-protected works generally fall into two categories: (i) commentary and criticism, or (ii) parody. The fair use exceptions balance between promoting the creation of art through copyright protection and not inhibiting freedom of speech.
Parodies are often confused with satire, and the terms are commonly used interchangeably. However, the concepts are distinct and can be the difference between engaging in fair use or infringing upon a copyright-protected work.
Parody is an imitation of the style of a particular copyright-protected work with a deliberate exaggeration of characteristics for comedic effect. Parody movies were prolific in the 1990s and 2000s with Scary Movie, Not Another Teen Movie, Walk Hard: The Dewey Cox Story, and others. By exaggerating the characteristics associated with the original work, the comedic punchline is always mockery of the original.
Parody is considered fair use because, like commentary and criticism, it is using the copyright-protected work to discuss that work. There would be no other way to mock the work without using the work itself in a way that would otherwise be considered infringement. The original work is the means and the end.
Satire is the use of humor, irony, exaggeration, or ridicule to criticize social stupidity or vices.
One of the most prolific satirists, who also does parodies, is singer and songwriter Weird Al Yankovic. His songs imitate copyright-protected works in every detail except for the lyrics. What makes his works primarily satire is that the comedic punchline is not mockery of the original but making fun of something else.
Satire uses the original work as a means to criticize or mock something other than the original work. This falls outside the scope of fair use because, unlike parody, satire can criticize or mock its target without needing to use the copyright-protected work. The original work is the means but not the end.
Weird Al Yankovic: Examples of Satire and Parody
Thankfully Weird Al Yankovic has examples of both. One of Weird Al’s first well-known songs was “Fat”, a satirical take on Michael Jackson’s “Bad.” “Fat” is satirical because it does not mock Jackson’s original song or Jackson’s style. Instead, “Fat” satirizes obesity using Jackson’s song.
Compare with Weird Al’s “Smells Like Nirvana”, a parody of Nirvana’s “Smells Like Teen Spirit.” Weird Al’s lyrics and style of singing are both aimed at mocking Nirvana’s lead singer Kurt Cobain; specifically that Kurt Cobain’s singing is unintelligible making it difficult to understand what the lyrics to Nirvana’s songs actually are. The use of Nirvana’s song to mock Nirvana squarely falls under parody.
Balancing Fair Use and Freedom of Speech
This distinction makes sense when considered with the need to balance copyright protection and freedom of speech.
Mocking a copyright-protected work necessarily requires use of that work; absent a fair use exception for parody there would be no way to mock protected works without infringing the copyrights. Freedom of speech requires the fair use exception.
But a satire can find any number of alternative ways to mock or criticize a social issue or policy. Satire doesn’t implicate freedom of speech because there are other, non-infringing ways in which the speech can occur.
Whether a new or derivative work would be categorized as a satire or a parody can be a nuanced determination. Unfortunately, it is not always clear what falls under fair use. Your best bet is to consult with a knowledgeable intellectual property attorney.