Please note that determining fair use or fair dealing in copyright is very subjective. This post will do its best to explain the legal position of parodies vis-à-vis copyright. But it would be impossible to say conclusively whether a specific parody would be fair use/dealing or not.
Jurisdiction – USA
Parody under Fair Use
As long as parodies fulfil certain requirements, they would not infringe copyright. These requirements essentially test whether a parody constitutes “fair use”. Fair use allows copying from an earlier work in certain cases such as criticism, news reporting and parody amongst others.
United States of America – If the parody constitutes fair use, it will be exempted from copyright infringement. There are four factors that are used to determine fair use –
- purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;
- nature of the copyrighted work;
- amount and substantiality of the portion used in relation to the copyrighted work as a whole;
- effect of the use upon the potential market for or value of the copyrighted work.
Court in US will determine whether a parody infringes copyright or not by judging the cumulative effect of these four factors. The judgment of the Supreme Court in Campbell v. Acuff-Rose Music is extremely useful in understanding how these factors work.
- Purpose and Character of the Use
The following factors are considered when determining the purpose and character of the use –
A. Its character must be transformative
For a parody to qualify as fair use, it should not serve the same purpose as the original. It should not supplant the original in the market.
The parody should be transformative, i.e. it should add a new meaning, message or character to the original work. If the parody is highly transformative, then factors such as commercialism become less relevant in determining fairness.
E.g. A parody song using the music of the original but different humorous lyrics would be considered transformative (check this delightful example).
B. Its purpose must be to criticize or comment upon the original, at least in part
The parody must, at least partially, criticize or comment upon the original work.
Determining whether a parody criticizes or comments upon the original is subjective. Therefore, courts generally do not evaluate the effectiveness of the criticism/comment. As long as the parody can be reasonably perceived to criticize or comment upon the original, this requirement will be satisfied. The threshold is not very high.
E.g. In Rogers v. Koons, the Second Circuit held that the sculpture on the right did not, in any way, comment on the original photograph on the left.
- Nature of the original work
It is a general principle that fair use is more difficult to establish for original creative works since such works best satisfy the purpose of copyright protection.
However, this factor is not particularly relevant because parodies commonly target famous, creative works (held uniformly in Campbell, Mattel v. Walking Mountain Productions and Annie Leibovitz v. Paramount Pictures).
- Amount and substantiality of the original used in the parody
Parodies often need to borrow from the original in order to comment upon it or criticize it. Copyright law allows such borrowing, provided it is within certain limits.
The parody must only take as much as is necessary to recall or conjure up the purpose of the parody (upheld by Campbell, Mattel and Leibovitz).
The extent of copying cannot be such that the parody seems like the original but reveals differences only on a closer inspection. Substantially verbatim copying is not permitted (Walt Disney Productions v. Air Pirates, para. 7).
E.g. In Air Pirates, the following images were held to be unsuccessful parodies because they copied too much of the original Mickey Mouse and Minnie Mouse images.
- Effect of the parody on the market or value of the original
Under this factor, courts consider harm caused to the market of the original and its derivatives. If a use causes market harm or is likely to replace the original in the market, it would not be fair. However, since parodies are transformative, it is unlikely that they would act as a market substitute for the original.
Confusion may arise when this position is compared with the holding in Sony Corp. v. Universal Studios. In Sony, the Supreme Court held that if the use is for commercial purposes, likelihood of market harm may be presumed; but if it is for non-commercial purposes, it must be demonstrated.
The Court in Campbell clarified that the statement in Sony was made in the context of verbatim copying, and not when the use was transformative. Thus such a presumption will not arise for transformative parodies since they are unlikely to cause market harm or act as market replacements.
E.g. If a parodic movie is sufficiently transformative, the mere fact that it is sold commercially would not lead to the conclusion that it detrimental to the market of the original.
Furthermore, even if the parody reduces or kills demand for the original through its critical function, it would not constitute market harm under this factor. The rationale for this is that through criticism, the parody does not interfere with the market of the original since criticism would not fall within the scope of the original’s direct or derivative market.
If the overall effect of the parody is such that it passes these factors, then it can be uploaded on YouTube without infringing copyright.
YouTube’s fair use policy can be accessed here.
You can also listen to an advanced lecture on fair use by Harvard professor William Fisher.
Image from here.
 The purpose is generally understood to mean encouraging more original creative works by giving them protection against infringement.
 Derivatives are works based on or derived from already existing works. E.g. Translations, movies based on books.
 When likelihood of confusion is presumed, the defendant needs to show that there exists no likelihood of confusion. However, when likelihood of confusion needs to be demonstrated, it remains for the plaintiff to positively prove that there exists such a likelihood.
 Campbell – “The market for potential derivative uses includes only those that creators of original works would in general develop or license others to develop.” No creator would ever develop or license others to develop a market for criticism of his work.