By Kyonzte Hughes, Contributing Writer
September 13, 2002
Satire is a centuries-old type of literature that uses humor and imitation to attack and ridicule individuals’ moral and character flaws, such as vice, unfairness, stupidity or vanity.
A parody is also an attack on folly, but it takes the form of a contemptuous imitation of an existing artistic production — usually a serious work of literature, music, artwork or film — for satirical or humorous purposes.
Satire and parody have served for generations as a means of criticizing public figures, exposing political injustice, communicating social ideologies, and pursuing such artistic ends as literary criticism. Satirists usually find themselves subjected in turn to criticism, contempt and, sometimes, lawsuits.
The First Amendment protects satire and parody as a form of free speech and expression. Questions that have arisen in case law concerning libel, emotional distress and copyright infringement are discussed in the relevant cases below.
Hustler Magazine, Inc. et al. v. Jerry Falwell
In this case from the 1980s, a well-known minister, the Rev. Jerry Falwell, suedHustler for an advertisement parody that portrayed him as having had a drunken sexual encounter with his mother in an outhouse. The parody was a spoof on a series of ads for Campari Liqueur. In small print at the bottom of the ad were the words, “ad parody — not to be taken seriously.” The table of contents for that issue of the magazine listed the ad as “Fiction; Ad and Personality Parody.” Falwell sued for libel, invasion of privacy and intentional infliction of emotional distress.
Issuing a directed verdict in favor of Hustler on the issue of invasion of privacy, a federal district court also ruled against Falwell on his libel claim because, the court said, no reasonable person would believe the situation depicted in the ad to be true. The court did award damages for emotional distress, however.
On appeal, the 4th U.S. Circuit Court of Appeals affirmed the lower court’s judgment, declaring that the issue was whether the ad’s publication was sufficiently outrageous to constitute intentional infliction of emotional distress.
However, the U.S. Supreme Court found to the contrary. The high court held in its 1988 decision that public figures and public officials could not recover damages for the tort of intentional infliction of emotional distress without an additional showing that “the publication contains a false statement of fact which was made with ‘actual malice,’ i.e., with knowledge that the statement was false or with reckless disregard as to whether or not it was true.”
The Court recognized the importance of allowing the free flow of ideas despite a possible negative emotional impact on the target of ridicule. Although the Court said not all speech enjoys the same protection under the First Amendment (for instance, “fighting words” aren’t protected), it affirmed that “the sort of expression in [the Hustler] case does not seem to us to be governed by any exception” to general First Amendment protection.
Campbell v. Acuff-Rose Music, Inc.
Creators of parody may be faced with questions of copyright infringement. In this 1994 decision, the Supreme Court held that a commercial parody may be a “fair use” in accordance with Section 107 of the Copyright Act, as a defense against an accusation of copyright infringement.
In this case, rap group 2 Live Crew’s song “Pretty Woman,” a parody of Roy Orbison’s rock ballad, “Oh Pretty Woman,” was challenged by Acuff-Rose Music, Inc. as an infringement on the company’s copyright on the Orbison tune. The publishing company contended that Campbell had not made fair use of Orbison’s song. They pointed out that Campbell’s version used the original work for commercial purposes and that he had taken too much of the original work.
Campbell countered that his parody was fair use. The U.S. Supreme Court took the case to determine whether 2 Live Crew’s commercial parody was indeed a fair use.
A fair-use analysis, according to the Court, involves four factors: “1) purpose and character of the use, including whether the use is commercially motivated or instead is for nonprofit educational purposes; 2) nature of the copyrighted work; 3) amount and substantiality of the portion used in the newly created work in relation to the copyrighted work; and 4) effect of the use upon the potential market for or value of the copyrighted work.”
A court must take all of these factors into account, none being sufficient alone.
The Supreme Court ruled that a lower federal appeals court had “inflated the significance” of the commercial nature of 2 Live Crew’s song. “The language of the statute makes clear that the commercial or nonprofit educational purpose of a work is only one element of the first factor enquiry into its purpose and character,” the Court wrote.
The Court reasoned that the copyright statute’s listed examples of fair use — news reporting, comment, criticism, teaching, etc. — are generally carried out for profit. Law professor Bruce Rogow, who argued the case for Luther Campbell before the Supreme Court, told the First Amendment Center Online that “the case stands for the principle that there must be breathing room for artists to create new works.”
Leibovitz v. Paramount Pictures Corporation
Paramount did a teaser ad for the film, “Naked Gun: The Final Insult 33 1/3.” The ad spoofed a 1991 cover of Vanity Fair,which featured a photo of a pregnant, nude Demi Moore. Paramount got another model, who was also pregnant, to pose nude. The head of Leslie Nielsen, the star of the film, was superimposed onto the body of the model. A federal district court and the 2nd U.S. Circuit Court of Appeals held that the parody ad was a fair use.
Dr. Seuss Enterprises v. Penguin Books USA
Penguin Books published a poetic account of the O.J. Simpson trial in a book titled, The Cat NOT in the Hat! A Parody by Dr. Juice. The 9th Circuit held that the book did not parody The Cat in the Hat, but simply retold the Simpson story. Therefore, there was no fair-use defense, and the book was deemed a copyright infringement.
The Wind Done Gone
A 2001 copyright-infringement/parody case involved Alice Randall’s novel, The Wind Done Gone, a parody of Margaret Mitchell’s American classic, Gone With the Wind. Released in 2001, Randall’s book used characters and scenes from Mitchell’s original novel as a satirical critique of Mitchell’s primitive depiction of African-Americans.
Mitchell’s estate argued that Randall’s novel borrowed too liberally from the original and was in essence a sequel, not a parody. A federal judge ordered an injunction against the publication of the book two months before it was to be released, but the injunction was lifted by the 11th Circuit on May 25 (SunTrust Bank v. Houghton Mifflin Co.).
In removing the injunction against The Wind Done Gone, the three-judge panel of the 11th Circuit at court did not declare whether the novel was a parody or not. But it said the Mitchell estate had failed to demonstrate a likelihood of success in pressing its claims against Randall.
The 11th Circuit explained its earlier order in its Oct. 10 opinion. The 11th Circuit determined that Houghton Mifflin, at least at this early stage of the litigation, had adequately shown that Randall’s book was protected as fair use.
Applying the elements of fair use, the appeals court recognized that Randall’s work was made for a commercial purpose. However, the court said that this factor was “strongly overshadowed and outweighed in view of its highly transformative use” of Gone With the Wind.
“Randall’s literary goal is to explode the romantic, idealized portrait of the antebellum South during and after the Civil War,” the appeals court wrote.
The appeals court also determined that the Mitchell estate had failed to show evidence that Randall’s book would harm the market value of Gone With the Wind’s derivative works or take away market demand for Mitchell’s book.
A concurring judge even pointed out that Randall’s book may “act as complement to, rather than a substitute for Gone With the Wind and its potential derivatives. The judge reasoned that readers of The Wind Done Gone“may want to refresh their recollections of the original.”
The 11th Circuit also reiterated that copyright law tries to preserve a balance with the First Amendment through the idea/expression dichotomy and the fair-use doctrine.
Fair use: An elusive doctrine
Even though 2 Live Crew and Alice Randall (at the preliminary injunction stage) prevailed in the federal courts, both cases required extensive litigation. Courts will decide the application of the fair-use doctrine on a case-by-case basis. The concept of fair use is flexible and hard to define. “Although the courts have considered and ruled upon the fair use doctrine over and over again, no real definition of the concept has ever emerged,” said the 11th Circuit opinion inThe Wind Done Gone case.
For this reason, Professor Jessica Litman, in the Dayton Law Review article “Reforming Information Law in Copyright’s Image,” calls fair use “a troublesome safe harbor for First Amendment rights.”
Stephen Fraser writes in his Cardozo Arts & Entertainment Law Journalarticle “The Conflict Between the First Amendment and Copyright Laws and its Impact on the Internet”: “It is precisely because the line is unclear, whether it be idea/expression, infringement/noninfringement, or fair use, that conflicts arise and exist between copyright and the First Amendment.”
Courts have determined that the fair-use defense provides ample First Amendment protections in the copyright arena. A 2000 federal court decision explains: “To the extent there is any tension between free speech and the protection of copyright, the Court has found it to be accommodated fully by traditional fair use doctrine, with expression prohibited by the Copyright Act and not within the fair use exception considered unprotected by the First Amendment” (Universal City Studios, Inc. v. Reimerdes).
First Amendment Center research attorney David L. Hudson Jr. contributed to this report.