WHEN THE JOKE IS ON YOUR CLIENT
Often your clients confuse three different and distinct concepts – parody, satire, and jokes. Here is a simple way to clarify this for your clients. A parody is an imitation a work that comments directly on the work and therefore is allowed to take quite a bit from the work that is the subject of the comment. A satire comments on some broad aspect of society. Often, it is evaluated liberally under the fair use doctrine. Neither one has to do with humor. A joke is all about getting a laugh and gets no special break under copyright law
Let’s start with the jokes because most people aren’t too sure what a joke is, and I haven’t been able to find a case which defines it. But dictionaries will help us here. A joke is something that is said or done to evoke laughter or amusement. It can be a one-liner or an amusing story with a long-awaited punch line. A parody or satire does not have to be funny. The difference between a parody or satire on the one hand and jokes on the other is crucial, since jokes are not generally copyrightable whereas parodies and satires are.
Most people don’t want to be laughed at. But they can’t do much about it. The question one should ask is this: Was this an invasion of one of the personal rights of privacy, slander or false light? The reason that none of these rights are invaded is because no one is misled into thinking that the comic is making a statement of act. The comic doesn’t slander someone or put them in a false light if everyone who hears the joke understands that it is a joke rather than a statement of fact.
Satire is often thought of as a sub-sect of humor, but actually does not necessarily have anything to do with humor. A satire mocks social conventions. When courts are presented with a satire case, they don’t say “this is a satire, so we will give it extra latitude.” Rather, they painstakingly set out the manner in which the new work comments on some social condition and use that as a significant factor in their analysis. It is almost as though satires are a favored subset of fair use.
The most recent satire case involved the artist Jeff Koons. He was paid $1.6 million to create a series of paintings entitled the “Easyfun-Ethereal.” Koons scanned a photo by Andrea Blanch, titled “Silk Sandals by Gucci,” which was, as the title suggests, a photo of a pair of woman’s feet wearing Gucci sandals. Blanch had shot the photo for a Gucci ad. Koons incorporated part of the photo into his own artwork, which depicted four pairs of women’s feet and lower legs dangling over images of various dessert dishes in order to comment on the ways in which our most basic desires are depicted in popular images.
Blanch, recognized her photo. She was not happy. She sued.
The court explained the satire in detail by describing the social comment being made, rather than sticking the satire label on the painting. In fact, the court doesn’t mention the word. The court focused on the first fair use factor (the purpose and character of use), and concluded that Koons used Blanch’s photograph in a transformative manner which weighed in favor of Koons’ appropriation because the use of the photo was to demonstrate how advertising whetted our various appetites, not to sell shoes for Gucci. This commentary on society is at the very heart of the definition of satire.
A parody has general latitude under copyright law to take from another work because a parody must comment on the work that is being parodied, so people must recognize the underlying work in order to recognize what the parody is commenting on.
The clearest definition of a parody is the following:
1. A new, copyrightable work,
2. Based on a previously copyrighted work,
3. To such an extent that the previous work is clearly recognizable,
4. But not taking more from the copyrighted work than is necessary,
5. That criticizes or comments on, at least in part, the subject matter or style of the previous work, and
6. Is not likely to hurt the value of the previous work.
Humor is absolutely not a requirement.
Once your client understands parody, you can deliver the good news: A true parody does not have to be cleared. The courts are clear on that.
The Supreme Court had not issued a controlling decision on parody until the 2 Live Crew case is 1994. The court held that the song “Hairy Woman” that 2 Live Crew wrote, recorded, and released was a parody of “Pretty Woman.”
After starting off with a full verse of identical lyrics to “Pretty Woman,” 2 Live Crew went on to sing:
Big hairy woman, you need to shave that stuff
Big hairy woman, you know I bet its tough
The 2 Live Crew won their case on the parody issue.
To underscore how humor is never a part of the definition of parody, consider the case of “The Wind Done Gone,” a small and powerful novel about the slaves who populated Tara, the cotton plantation in Margaret Mitchell’s “Gone With the Wind.” The Mitchell estate sued – and won an injunction at the trial court level – on the theory that this book was an unauthorized sequel. However, the estate lost on appeal and “The Wind Done Gone” was allowed to be published.
The book clearly makes commentary on the subject matter of “Gone With the Wind.” It takes characters right out of “Gone With the Wind” and tells their rich stories. So the fifth factor – the key factor – is very much in favor of “The Wind Done Gone.”
Just in case they don’t grasp this important concept, it may be simpler just to give your client some examples of what is not a parody:
• A copyrighted song presented in a funny way. A torch song sung by someone in drag or by a drunk character slurring through a song is not a parody.
• Changing a song slightly to fit your purposes. Changing “Michelle” to “Miguel” to make it appropriate to a character’s name is not parody.
• An impersonator sings a song (without changing it) in a style of someone other than the person who made it a hit. Dana Carvey imitating President Bush singing “The Party’s Over” is not a parody.
So when clients come in to see you with the thought that they can perform a song because it is a parody, ask them about the commentary and make your own evaluation. After you have received their uneducated explanation, you can let them know all about the above or just give them this article to read. Most clients who get into trouble in this area, simply don’t understand the distinctions among a parody, a satire, and a joke.