Courts' Analysis Pre-Acuff-Rose
Before the U.S. Supreme Court decided Acuff-Rose, courts failed to distinguish parody from satire, and often discussed the two as if they were the same. For example, in 1979 the Fifth Circuit Court of Appeals, in the process of analyzing a fair use parody defense, lumped parody and satire together, noting that "[n]ot all parodies and satires . . . are protected by fair use." Dallas Cowboys Cheerleaders, Inc. v. Scoreboard Posters, Inc., 600 F.2d 1184, 1188 (5th Cir. 1979) (affirming preliminary injunction granted by lower court). There, the allegation of copyright infringement involved a poster put together by a group of former Dallas Cowboys cheerleaders who posed similarly to the cheerleaders in the official Dallas Cowboys Cheerleaders poster, but partially naked. Demonstrating the propensity to blend parody with satire at the time, the court described an example of "satire that fell short of fair use" as an impermissible satire "despite the social value of parody." Scoreboard Posters, 600 F.2d at 1188 (citing Loew's Inc. v. Columbia Broad. Sys., Inc., 131 F. Supp. 165 (S.D. Cal. 1955), aff'd sub nom, Benny v. Loew's Inc., 239 F.2d 532 (9th Cir. 1956), aff'd, 356 U.S. 43 (1958)).
Just two months later, a district court within the Eleventh Circuit, granting a preliminary injunction against the producers of a three-hour play called Scarlett Fever, based on Margaret Mitchell's Gone with the Wind, also blended parody and satire, noting that the "first and foremost" asserted defense was that Scarlett Fever is "a parody or satire" of Gone with the Wind. Metro-Goldwyn-Mayer, Inc. v. Showcase Atlanta Coop. Prods., Inc., 479 F. Supp. 351, 356 (N.D. Ga. 1979). Though the court did define "parody" and "satire" elsewhere in its opinion.
"Parody" was defined as a work that uses the language or style of another work to closely imitate or mimic the other work for comedic effect or ridicule. Showcase, 479 F. Supp. at 357 (quoting Dallas Cowboys Cheerleaders, Inc. v. Pussycat Cinema, Ltd., 467 F. Supp. 366, 376 (S.D.N.Y. 1979)). "Satire" was defined as work that "holds up the vices or shortcomings" of a person or institution for purposes of "ridicule or derision" and usually intending to stimulate some form of change by using irony, wit, or sarcasm to expose and discredit the "vice or folly." Showcase, 479 F. Supp. at 357. While defined differently, the court noted that "many courts have recognized that parody or satire may be protected as 'fair use.'" Showcase, 479 F. Supp. at 357 (citing Scoreboard Posters, 600 F.2d 1184)).
The analysis of parody and satire as both potentially worthy of a fair use defense continued through the 1980s and into the 1990s. See, e.g., Rogers v. Koons, 960 F.2d 301, 310 (2d Cir. 1992) (noting that "parody and satire are valued forms of criticism"); Elsmere Music, Inc. v. Nat'l Broad. Co., Inc., 482 F. Supp. 741, 745 (S.D.N.Y. 1980) (citing Berlin v. E.C. Publ'ns, Inc., 329 F.2d 541, 545 (2d Cir. 1964)) (noting that "as a general proposition . . . parody and satire are deserving of substantial freedom"). Particularly after 1984, a parodist or satirist using his or her work commercially was less likely to successfully defend on the basis of fair use because the commercial use of a parody or satire was presumed not to be fair use. See Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 451 (1984). The fair use analysis of parodies and satires changed substantially in 1994, including the presumption that commercial use of a parody was not fair use. See Monge v. Maya Magazines, Inc., 688 F.3d 1164, 1172 (9th Cir. 2012) (citing Acuff-Rose, 510 U.S. at 584–85).
U.S. Supreme Court Distinguishes Parodies from Satires
Considering a parody identical to satire in the context of a fair use defense ended in 1994 when the U.S. Supreme Court decided Acuff-Rose. There, the Court established a bright-line definition for "parody" and "satire," holding that "satire" generally will not qualify as a fair use. Acuff-Rose, 510 U.S. at 580. Further, the Court opened the doors for increased use of parody, holding that a parody used in a commercial sense does not presumptively preclude a successful defense of fair use, as that is but one factor of the four-factor fair use test under 17 U.S.C. § 107. Acuff-Rose, 510 U.S. at 581, 584–85.
Per Acuff-Rose, a parody is a work that takes another's existing material to create a new work "that, at least in part, comments on" the other author's work. A parody must "mimic an original to make its point." Conversely, a satire "borrows" from another's work without having any "critical bearing on the substance or style of the original composition," and thus the satirist uses another's work merely as a method of drawing attention or "to avoid the drudgery in working up something fresh." Thus, a "satire can stand on its own two feet and so requires justification for the very act of borrowing." Opposed to a claim for fair use for a parody, such a claim for a satire "diminishes accordingly (if it does not vanish), and other factors, like the extent of its commerciality, loom larger." Acuff-Rose, 510 U.S. at 580–81.
Even though the Court seemed to have left the door partly open for satire, its statement that "parody [alone] can claim legitimacy for some appropriation" has led to the expectation that, for example, a comedian's satirical use of a copyrighted song is infringement that cannot be saved by the fair use doctrine. See Acuff-Rose, 510 U.S. at 581. Moreover, and as discussed below, the Court's distinction between parody and satire expanded the required analysis for these cases. After Acuff-Rose, a court first must decide if the alleged infringement is a parody or a satire. If it is a parody, then the use at least enjoys a likelihood of being held fair under the four-part fair use test. If a satire, then the use is not likely to be considered fair, particularly if the use is in a commercial context. In those instances where the alleged infringement is both parody and satire, the analysis is even more difficult.
Post-Acuff-Rose decisions, and even those decided within the past five years, show courts are finding "satire" does not qualify as a fair use, even if they do not expressly state that as the basis of their decisions. Further, these decisions demonstrate how the analyses may differ depending on the district.
The four-part fair use test further developed under Acuff-Rose is still the basis of the fair use analysis, but some courts have found it unnecessary to set forth a complete analysis of each factor. To some, quickly making the determination that the use is satirical (even if not expressly stating so) can result in avoidance of the four-factor analysis.
For instance, a defendant asserted a fair use defense based on "parody," arguing that it applied to a public performance of "Sweet Home Alabama," where the band "may" change the word "Alabama" in the song to "Arizona." Broad. Music, Inc. v. McDade & Sons, Inc., 928 F. Supp. 2d 1120, 1131 (D. Ariz. 2013). The court found that changing one word in a copyrighted song "does not create a new" work that "comments" on the original work, thus placing the alleged infringement under the definition of satire without calling it that. McDade, 928 F. Supp. 2d at 1131 (citing Acuff-Rose, 510 U.S. at 581). Thus, without stating that there was no fair use because the work "stood on its own" (i.e., the Acuff definition of satire), the court's description of why there was no fair use implies that rationale.
Rarely does an alleged infringing work of parody blatantly critique the original work, making creative lawyering important in these cases. Consider the court's analysis in CCA & B, LLC v. F+W Media Inc., 819 F. Supp. 2d 1310 (N.D. Ga. 2011). There, the plaintiff filed a lawsuit against the publisher of The Elf off the Shelf (Elf Off), which the defendant claimed was a parody of the plaintiff's book, The Elf on the Shelf (Elf On).
Elf On is a popular Christmas book that comes with a toy elf doll. The story explains "how Santa keeps track of who's naughty and nice each year and what are their wishes: by employing millions of 'scout' elves around the world to monitor children's behavior." The elves are "dispatched" to families to watch their children's behavior and report to Santa. The book warns that the elf will report pushes, shoves, and broken rules, but "small acts of kindness will not be a loss." Finally, the elf encourages the reader to report his or her gift wish lists so that the elf can inform Santa. Parents may participate by moving the elf doll to different locations in the house as "evidence that the elf returns to the North Pole at night." The book's jacket states that the author discovered that the book and doll "helped the children to better control themselves." CCA & B, 819 F. Supp. 2d at 1316.
The defendant's book, Elf Off, is narrated by a "discount elf" who also helps Santa decide who has been naughty and nice. This elf, however, warns the reader that he will be "pissed" if the reader gives him a name he does not like, and if he decides his name is lousy, he will drink spiked eggnog, make a move on Barbie while Ken's away, watch pornography, change the children's gift wish list so it includes a gift for him, and run away to the tropics instead of returning to the North Pole. The jacket of the book explains that he accepted this "shelf gig" so that he could leave his parents' basement "for the first time in  years," and that prior to "being sent out to spy on and judge small children, he worked the assembly line in Santa's Workshop." CCA & B, 819 F. Supp. 2d at 1316–17.
The court noted that it needed to determine whether "the allegedly infringing use makes some form of comment or critique of the original." Further, the court stated that a work is a parody under a copyright analysis "if its aim is to comment upon or criticize a prior work by appropriating elements of the original in creating a new artistic, as opposed to scholarly or journalistic, work." The court explained, "parodies inevitably borrow portions of the copyrighted work in order to evoke the work for purposes of comment or critique." CCA & B, 819 F. Supp. 2d at 1318.
The court found the "parody" in Elf Off was "clear" though not "particularly pungent," and that there was an issue of whether "a parody may reasonably be perceived in the content." CCA & B, 819 F. Supp. 2d at 1318 (citing Acuff-Rose, 510 U.S. at 582). Accordingly, the issue was whether critique or comment of the original work could "reasonably be perceived in the content."
To find the "parody" clear, the court drew an "inference of critique" because there was no literal, blatant comparison in the new work. CCA & B, 819 F. Supp. 2d at 1318 ("Elf Off may not render a scathing critique of Plaintiff's book, but by reporting his own mischief throughout the story, [the naughty elf] highlights the perceived absurdity of a 'big brother' type of elf reporting on small children in Elf On."). Further, the court noted that Elf Off borrowed from Elf On to tell "the story of a very naughty elf with little interest in monitoring children's behavior." CCA & B, 819 F. Supp. 2d at 1318.
The court ultimately found the work is a "parody," explaining the differences between the two works, and noting that the characterization of the elf in Elf Off ("images, including the unflattering photograph of the elf doll lying next to a toilet, suggestive of an under-employed adult living with his parents") contrasted with the "wonderland world of Elf On in a way that makes the idea of using an Elf 'scout' (or spy) to encourage good behavior" in children "seem somehow unsavory." Accordingly, the court found that the elf in Elf Off was not "hilarious" but used a foul mouth to "say something pointedly different than the elf in" Elf On. CCA & B, 819 F. Supp. 2d at 1319.
Ultimately, this led the court to hold that this "clear" parody, in a copyright context, represented fair use. CCA & B, 819 F. Supp. 2d at 1318–19 ("Parody is a legally recognized and sanctioned form of 'fair use' of an original copyrighted work.").
Courts Split on Parody-of-the-Author as a Fair Use Defense
Some courts have tackled the question of whether the use of a work that does not comment or critique the content of the work, but rather comments or critiques the author of the work, can survive an infringement claim on the basis of parody. See, e.g., Henley v. DeVore, 733 F. Supp. 2d 1144, 1152 (C.D. Cal. 2010). Not surprisingly, trial courts are split on this issue, which has yet to be squarely addressed at the appellate level.
For instance, there are contrary decisions in district courts in California and New York. Compare Henley, 733 F. Supp. 2d at 1153 (citing Burnett v. Twentieth Century Fox Film Corp., 491 F. Supp. 2d 962, 968–69 (C.D. Cal. 2007) (finding parody of author can sustain a fair use defense)), with Dr. Seuss Enters., L.P. v. Penguin Books USA, Inc., 924 F. Supp. 1559, 1568 (S.D. Cal. 1996) (finding parody permissible "[o]nly when the [defendant] wishes to parody the copyrighted work itself"), aff'd, 109 F.3d 1394 (9th Cir.) (without discussing this issue), cert. dismissed, 521 U.S. 1146 (1997). Compare Bourne Co. v. Twentieth Century Fox Film Corp., 602 F. Supp. 2d 499, 507 (S.D.N.Y. 2009) (appearing to accept "parody-of-the-author" defense), with Salinger v. Colting, 641 F. Supp. 2d 250, 257 (S.D.N.Y. 2009) (flatly rejecting critique of "work's author" as parody), rev'd on other grounds, 607 F.3d 68 (2d Cir. 2010).
In Henley, the court employed the four-part fair use analysis and compared parody to satire, assuming "parody-of-the-author" is a legitimate defense in a matter commenced by the musician, Don Henley, against a politician who had used Henley's songs in a political campaign. Henley's claim was that his two songs, "The Boys of Summer" ("Summer") and "All She Wants to Do Is Dance" ("Dance") were infringed by the politician's two songs: "The Hope of November" ("November") and "All She Wants to Do Is Tax" ("Tax"). Henley, 733 F. Supp. 2d at 1147. The court stated that "parody" is where the copyrighted work "is the target," and satire is where the work is "merely a vehicle to poke fun at another target." Henley, 733 F. Supp. 2d at 1152.
With respect to "Summer" vs. "November," the court noted that "Summer" was about nostalgia "for a lost summer romance." The defendant agreed with the general theme but argued that the song, in part, bemoaned the "failure of 1960's liberal politics" (pointing to the lyrics: "I saw a DEADHEAD sticker on a Cadillac"), which was supported by an interview of Henley where he commented on the last verse of the song, noting "We raised all that hell in the Sixties. . . . [W]e withdrew and became yuppies and got into the Me Decade." Thus, the defendant argued that "November" parodied "Summer" by using its "themes of nostalgia and disillusionment to mock Henley and other Obama supporters who, in 'November,' look back wistfully at Obama's campaign and bemoan his failure to deliver on the promised 'hope.'" Henley, 733 F. Supp. 2d at 1156.
The court noted that "November" did not "comment on or criticize the content of 'Summer'" or the themes in general. Instead, it found the song used the themes and devices to "pock a separate subject entirely, namely Obama and his supporters." Thus, the song takes the "narrator" of "Summer" and "places him in the current political environment, where he is disappointed by the result of Obama's election." Henley, 733 F. Supp. 2d at 1156–57. The court found that "November" primarily targeted Obama but also, in part, served to "lampoon Henley as an Obama supporter." However, because the defendant copied Henley's rhyme, syntax, melody, and most of his lyrics, and because the lyrics "were mostly satirical in nature," the court granted summary judgment in favor of the plaintiff. Henley, 733 F. Supp. 2d at 1164.
"Dance" contained even more explicit social commentary, and appeared to "recount an American couple's trip to a foreign country in the midst of revolutionary unrest," according to the court. The defendant argued that it was a criticism of "American foreign policy in Latin American in the 1980's." But the argument only served to demonstrate that the defendant's song, "Tax," was a satire and not a parody because "Tax" "does not comment on 'Dance,' but instead uses the same themes to comment on entirely different subjects, namely [Barbara] Boxer, taxation, global warming, and the proposed cap-and-trade program." The court also found that "Tax" did not directly target Henley or the author of "Dance," noting that "[u]nlike 'November,' which at least implicitly references Henley as the song's narrator, 'Tax' makes no implicit or explicit reference to [the authors], much less ridicule them." Henley, 733 F. Supp. 2d at 1157–58. Thus, the court found "Tax" not even close to being a parody that would qualify as a fair use. Henley, 733 F. Supp. 2d at 1164.
Post-Acuff-Rose, attorneys who have the opportunity to provide litigation-prevention strategies to their professional entertainer clients might recommend wholesale avoidance of "satire" absent authorization, e.g., a license for the use, and purposeful critique of the original work, as the lowest-risk practice. What that means will be more difficult to articulate. At the very least, it means making the effort to critique the original work in the new work. Similarly, litigators representing a defendant would be best served by characterizing the client's use as an intentional critique of the work and author—a parody—where possible.
Keywords: litigation, intellectual property, copyright, parody, satire, fair use, critique