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
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.
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.
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.
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.
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.