not Just a Laughing Matter

By Max Kimbrough

ParoParody!dy!

ParoParody!dy!

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Fair Use Factors

• The purpose and character of your use

• The nature of the copyrighted work

• The amount and substantiality of the portion taken

• The effect of the use upon the potential market

Are you “good” or “bad”?

But What About Parody?

• “unlike other forms of fair use, a fairly extensive use of the original work is permitted in a parody in order to ‘conjure up’ the original.” (stanford university libraries)

• This is because copyright holders are likely to refuse licensing their work to those who will use it to criticize them

Therefore, allowing exceptions for parody helps to advance artistic expression

parody v. satire

• "Parody needs to mimic an original to make its point, and so has some claim to use the creation of its victim's (or collective victims') imagination, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing." (CAMPBELL v. ACUFF-ROSE MUSIC)

Are You “Good” or “Bad”?

• The garbage pail kids were a parody of the cabbabe patch kids

parodied pop culture icons in the style of the cabbabe patch kids — only gruesome, instead of “wholesome”

Original appalachian artworks, inc. v. topps chewing gum, inc.

“[T]he plaintiff contends that the defendant has copied more than was necessary to achieve the desired effect and that, therefore, under the third factor, the amount of copying, the defendant’s conduct is not protected under the fair use doctrine. [...]“In walt disney productions v. air pirates ... the ninth circuit denied defendant’s fair use defense where disney cartoon characters were placed in incongruous settings and engaged in activities antithetical to accepted disney values.”

Original appalachian artworks, inc. v. topps chewing gum, inc.

Walt Disney Productions v. Air Pirates

• Air pirates copied visual look of disney characters, but changed their personalities to reflect counter-culture

• Court struggled with issue of whether or not illustrated characters within a book could be copyrighted

Court ruled that not much of the copyrighted material need be copied in order to convey parodic message

Court didn’t have favorable view of Garbage Pail Kids. Quotes from case involving parody of Wonder Woman and Superman: “Defendants do not engage in critical comment that constitutes part of the ‘free flow of ideas’ underlying the doctrine of fair use. Instead, they seek to augment the commercial value of their own property by creating new, and detrimental, associations with plaintiff’s property” (dc comics, inc v. unlimited monkey business, inc)

Judge counted against GPK that they “compete[d] in many of the same markets as cpk products.” However, this ignored the vastly different target demographics of the two products.

Original appalachian artworks, inc. v. topps chewing gum, inc.

Original appalachian artworks, inc. v. topps chewing gum, inc.

Court relied on sony decision that commercial use of copyrighted work is an infringement.

Later, supreme court rules in Acuff-Rose that commercial nature of work doesn’t exclude its claim to fair use.

By this point, however, TOPPS and OAA reached settlement...

Original appalachian artworks, inc. v. topps chewing gum, inc.

Changes required of TOPPS from settlement:

-horizontal banner

-4 Fingers instead of 5

-More “realistic” hair

-hard plastic look

-fewer overall

idiosyncratic features

can’t we all just get along?