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Action & Evaluation Guides for Humor, Parodies, and Satires

Overview of Potential Legal Issues

Parodies and parodists are frequently targeted by offended rights holders, unhappy with mockery or criticism. But the First Amendment and fair use protect parodies in all areas of law.

The protection is not absolute. Courts may find parodies infringing if they supplant the original in the market, or seem unfair in some way. But any parodist should understand the extent of the free expression protections before responding to a cease and desist letter or takedown notice.

Rightsholders may assert a number of claims against parodists, including most commonly copyright, trademark, and defamation claims. Less often, rightsholders may assert "false light invasion of privacy," violation of the right of publicity, or commercial appropriation. While copyright claims are almost entirely based on federal law, trademark claims may be federal or state; the other claims are based on state laws that vary from state to state. The First Amendment provides a certain level of protection no matter what state law claim is asserted; but many states provide even stronger free speech protections. If state law claims are made, it is important to seek the advice of an attorney familiar with that state's laws.

Important Cases

• Campbell v. Acuff-Rose: U.S. Supreme Court decision strongly suggesting that a rap music parody of Roy Orbison's song "Oh Pretty Woman" qualified as fair use because it was "transformative", and because some degree of copying was necessary to "conjure up" the original. The Court ruled that the fact that the rap group, 2 Live Crew, had commercially marketed its parody did not significantly weigh against a finding of fair use.
• Dr. Seuss Enterprises v. Penguin Books: Decision of the U.S. Court of Appeals for the 9th Circuit distinguishing between parody and satire, and ruling that a satiric commentary on the O.J. Simpson murder case that copied the rhyme scheme of the Dr. Seuss books was not fair use.
• SunTrust Bank v. Houghton-Mifflin: Decision of the U.S. Court of Appeals for the 11th Circuit finding that the novel The Wind Done Gone, a critical parody of Gone With the Wind, was likely fair use.
• Mattel v. Walking Mountain Productions: Decision of the U.S. Court of Appeals for the 9th Circuit holding that artist Tom Forsythe's series "Food Chain Barbie", which parodied the Barbie Doll, was fair use.

Organizations Working in This Field

• American Civil Liberties Union. The ACLU provides both advocacy and litigation in defense of First Amendment / free expression. The ACLU has frequently defended parodists, both at its national office and in its various chapter offices. The Northern California Chapter of the ACLU has been particularly involved in defending First Amendment rights around Internet expression. In 2006, for instance, ACLU-No.Cal. defended a blogger who posted a parody of an anti-gay billboard.
• Comic Book Legal Defense Fund. The CBLDF provides advocacy and litigation on First Amendment-related issues in the comic book industry. Comics are particularly common formats for parodies.
• Electronic Frontier Foundation. EFF has defended parodists, including the JibJab parody of "This Land Is Your Land" (2004).