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The article doesn't specifically mention the concept of parody versus satire, but it's instrumental here: The authors of the book wanted to make the case that t

The article doesn't specifically mention the concept of parody versus satire, but it's instrumental here: The authors of the book wanted to make the case that their book was a parody, but the court essentially ruled that it was satire. A quick primer on the difference: https://lizerbramlaw.com/2019/03/06/fair-use-or-not-parody-vs-satire-in-copyright-law/ https://lizerbramlaw.com/2019/03/06/fair-use-or-not-parody-v...

nkurz 6y ago
Thanks, I wasn't really aware of that distinction. I haven't read the decision yet. Do you have a sense of how important the distinction actually is in this case? I assumed the larger question was whether it was "transformative". For comparison, I was astounded by the decision that Richard Prince's work was considered fair use: http://www.artistrights.info/cariou-v-prince http://www.artistrights.info/cariou-v-prince. Quoting from that page (which I realize is just a synopsis and not a legal opinion): "In order to be fair use, a secondary use must transform the original by employing it in a different manner or for a different purpose than the original in order to produce a new expression, meaning, or message. A secondary use does not need to comment on or critique the original in order to be transformative as long as it produces a new message." Is this really less transformative than painting a guitar and some face paint on someone else's photograph? Given that both cases involved overturning the decision of a lower court, clearly both sides are arguable here. It makes me wonder if this is really just a Circuit split, with different standards in different regions. Is there a canonical Supreme Court case here with national precedent that would unify these decisions?
- kevinventullo 6y ago
  It sounds like Prince’s work really had a different meaning than the original photograph, whereas the Star Trek “Go” had essentially the same message as the original.
- NoodleIncident 6y ago
  I'd be interested in seeing a meta-analysis of all of these fair use copyright cases. The only consistency I see so far is that the side with more money ends up winning. Seuss > crowdsourced star trek pictures sold for $8k total < paintings sold for $2M each
heavyset_go 6y ago
Thanks for posting this. Are there cases that set precedent for satire not being protected under the doctrine of Fair Use? I'm not a lawyer so I'm not sure if the quoted Campbell v. Acuff-Rose Music, Inc. case set that precedent, or if it was just quoted to show the difference between parody and satire in the eyes of the law.
- nkurz 6y ago
  If others aren't aware, the somewhat formal sounding "Campbell v. Acuff-Rose" regards the legality of 2 Live Crew's cover of Roy Orbison's "Pretty Woman". The Supreme Court held that it was clearly a parody, and thus clearly fair use. Equally clearly, seeing as the Supreme Court was reversing the earlier decision of the Appeals Court, it wasn't actually that clear to some. In any case, it's also a delightful listen to a more innocent era in rap: https://www.youtube.com/watch?v=rMqnPVU207M https://www.youtube.com/watch?v=rMqnPVU207M. That said, I'd also be interested in an answer to heavyset_go's question. I think the answer is "no", and that it's only a case of "parody" being a positive example of transformation rather than "satire" being a negative. The decision in this case, for example, doesn't actually even mention the term "satire", and instead relies on the (not particularly well defended) opinion that setting Star Trek in the world of Go! might be transformative for Captain Kirk, but it is "not transformative" to Go!.
- zerocrates 6y ago
  Campbell v. Acuff-Rose is the precedent at the Supreme Court level for parody, even commercial parody, potentially qualifying as fair use. Other lower courts had held as much in earlier cases, as well as in other cases holding that works were not parody in the sense relevant for copyright (crucially, that they were not commenting on the work they copied from). Campbell not only held that "Pretty Woman" by 2 Live Crew was fair use as parody, but also discussed the distinction of parody and 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." To some extent it simply codified a distinction already present in lower court decisions, but as the Supreme Court precedent it set the standard nationwide. The case doesn't explicitly hold that satire is not fair use, or even that parody is fair use. Fair use is a case-by-case, multi-factor test that characteristically lacks bright lines. A "merely" satirical work that copied less of the original, or was extremely transformative, could be fair use. Parody and satire often co-exist and even "parody-ness" is a sliding scale that can affect the analysis. In practice though, Campbell is a pretty "bright-ish" line: if a commercial work obviously copies from an original, a court calling it "satire" as opposed to "parody" is almost certainly not going to find fair use.
jameshart 6y ago
Right. It surprises a lot of people that the law on parody hinges on whether the humorous target of the parody is the work it itself is parodying or something else. From the ruling, quoted in the article: > ’Boldly’ is not a parody. ComicMix does not seriously contend that ‘Boldly’ critiques or comments on ‘Go!.’ When most people think of parody they think of things like Weird Al Yankovic songs (as this article mentions), which definitely don't critique or comment on the songs they're based on - Eat It says nothing about Beat It; The Saga Begins doesn't have anything to say about American Pie. And of course it doesn't actually matter: somewhat famously, Weird Al actually licenses the songs he uses in his 'parodies', and doesn't rely on the 'right to parody' at all. But the layman's meaning of parody persists. Weird Al's own FAQ says: > Al does get permission from the original writers of the songs that he parodies. While the law supports his ability to parody without permission, he feels it’s important to maintain the relationships that he’s built with artists and writers over the years. (https://www.weirdal.com/archives/faq/#:~:text=Al%20does%20get%20permission%20from,and%20writers%20over%20the%20years https://www.weirdal.com/archives/faq/#:~:text=Al%20does%20ge....) So it's maybe not surprising that there's a pretty broad cultural understanding that 'parody' means 'transforming something copyrighted in a way that's sort of funny'. I mean, the Wikipedia article for The Saga Begins literally starts: > "The Saga Begins" is a parody song by "Weird Al" Yankovic. It parodies "American Pie" by Don McLean... But the law disagrees. It's not a parody in the sense of parodic 'fair use'. As far as copyright law is concerned, it's a derivative work, and Don McLean can dictate the terms under which Weird Al is allowed to publish it.
- jancsika 6y ago
  > It surprises a lot of people that the law on parody hinges on whether the humorous target of the parody is the work it itself is parodying or something else. You haven't finished your documentation yet. Like: "The value returned by detonate() depends on whether or not the method succeeded or failed." Edit: clarification
  - wtallis 6y ago
    Your comment is even more obtuse than the one you are complaining about. You meant to ask: Does the law's protection of parodies require that the parody target the work it is a parody of, or to target something else?

nkurz 6y ago

Thanks, I wasn't really aware of that distinction. I haven't read the decision yet. Do you have a sense of how important the distinction actually is in this case? I assumed the larger question was whether it was "transformative". For comparison, I was astounded by the decision that Richard Prince's work was considered fair use: http://www.artistrights.info/cariou-v-prince http://www.artistrights.info/cariou-v-prince. Quoting from that page (which I realize is just a synopsis and not a legal opinion): "In order to be fair use, a secondary use must transform the original by employing it in a different manner or for a different purpose than the original in order to produce a new expression, meaning, or message. A secondary use does not need to comment on or critique the original in order to be transformative as long as it produces a new message." Is this really less transformative than painting a guitar and some face paint on someone else's photograph? Given that both cases involved overturning the decision of a lower court, clearly both sides are arguable here. It makes me wonder if this is really just a Circuit split, with different standards in different regions. Is there a canonical Supreme Court case here with national precedent that would unify these decisions?

kevinventullo 6y ago
It sounds like Prince’s work really had a different meaning than the original photograph, whereas the Star Trek “Go” had essentially the same message as the original.
NoodleIncident 6y ago
I'd be interested in seeing a meta-analysis of all of these fair use copyright cases. The only consistency I see so far is that the side with more money ends up winning. Seuss > crowdsourced star trek pictures sold for $8k total < paintings sold for $2M each

heavyset_go 6y ago

Thanks for posting this. Are there cases that set precedent for satire not being protected under the doctrine of Fair Use? I'm not a lawyer so I'm not sure if the quoted Campbell v. Acuff-Rose Music, Inc. case set that precedent, or if it was just quoted to show the difference between parody and satire in the eyes of the law.

nkurz 6y ago
If others aren't aware, the somewhat formal sounding "Campbell v. Acuff-Rose" regards the legality of 2 Live Crew's cover of Roy Orbison's "Pretty Woman". The Supreme Court held that it was clearly a parody, and thus clearly fair use. Equally clearly, seeing as the Supreme Court was reversing the earlier decision of the Appeals Court, it wasn't actually that clear to some. In any case, it's also a delightful listen to a more innocent era in rap: https://www.youtube.com/watch?v=rMqnPVU207M https://www.youtube.com/watch?v=rMqnPVU207M. That said, I'd also be interested in an answer to heavyset_go's question. I think the answer is "no", and that it's only a case of "parody" being a positive example of transformation rather than "satire" being a negative. The decision in this case, for example, doesn't actually even mention the term "satire", and instead relies on the (not particularly well defended) opinion that setting Star Trek in the world of Go! might be transformative for Captain Kirk, but it is "not transformative" to Go!.
zerocrates 6y ago
Campbell v. Acuff-Rose is the precedent at the Supreme Court level for parody, even commercial parody, potentially qualifying as fair use. Other lower courts had held as much in earlier cases, as well as in other cases holding that works were not parody in the sense relevant for copyright (crucially, that they were not commenting on the work they copied from). Campbell not only held that "Pretty Woman" by 2 Live Crew was fair use as parody, but also discussed the distinction of parody and 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." To some extent it simply codified a distinction already present in lower court decisions, but as the Supreme Court precedent it set the standard nationwide. The case doesn't explicitly hold that satire is not fair use, or even that parody is fair use. Fair use is a case-by-case, multi-factor test that characteristically lacks bright lines. A "merely" satirical work that copied less of the original, or was extremely transformative, could be fair use. Parody and satire often co-exist and even "parody-ness" is a sliding scale that can affect the analysis. In practice though, Campbell is a pretty "bright-ish" line: if a commercial work obviously copies from an original, a court calling it "satire" as opposed to "parody" is almost certainly not going to find fair use.

jameshart 6y ago

Right. It surprises a lot of people that the law on parody hinges on whether the humorous target of the parody is the work it itself is parodying or something else. From the ruling, quoted in the article: > ’Boldly’ is not a parody. ComicMix does not seriously contend that ‘Boldly’ critiques or comments on ‘Go!.’ When most people think of parody they think of things like Weird Al Yankovic songs (as this article mentions), which definitely don't critique or comment on the songs they're based on - Eat It says nothing about Beat It; The Saga Begins doesn't have anything to say about American Pie. And of course it doesn't actually matter: somewhat famously, Weird Al actually licenses the songs he uses in his 'parodies', and doesn't rely on the 'right to parody' at all. But the layman's meaning of parody persists. Weird Al's own FAQ says: > Al does get permission from the original writers of the songs that he parodies. While the law supports his ability to parody without permission, he feels it’s important to maintain the relationships that he’s built with artists and writers over the years. (https://www.weirdal.com/archives/faq/#:~:text=Al%20does%20get%20permission%20from,and%20writers%20over%20the%20years https://www.weirdal.com/archives/faq/#:~:text=Al%20does%20ge....) So it's maybe not surprising that there's a pretty broad cultural understanding that 'parody' means 'transforming something copyrighted in a way that's sort of funny'. I mean, the Wikipedia article for The Saga Begins literally starts: > "The Saga Begins" is a parody song by "Weird Al" Yankovic. It parodies "American Pie" by Don McLean... But the law disagrees. It's not a parody in the sense of parodic 'fair use'. As far as copyright law is concerned, it's a derivative work, and Don McLean can dictate the terms under which Weird Al is allowed to publish it.

jancsika 6y ago
> It surprises a lot of people that the law on parody hinges on whether the humorous target of the parody is the work it itself is parodying or something else. You haven't finished your documentation yet. Like: "The value returned by detonate() depends on whether or not the method succeeded or failed." Edit: clarification
- wtallis 6y ago
  Your comment is even more obtuse than the one you are complaining about. You meant to ask: Does the law's protection of parodies require that the parody target the work it is a parody of, or to target something else?