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Parody, Fair Use, and Kiss My Ass

Leonardo Hidalgo

We talk a lot about copyright infringement on this site, but not every use of someone else’s work is an infringement. Copyright is subject to certain limitations found in the Copyright Act.  One of the more important limitations is the doctrine of  “fair use.” This doctrine was developed through the courts over the years and eventually codified into the statute.

The Copyright Act actually contains a list of the various purposes for which copying a work may be considered fair, including criticism, comment, news reporting, teaching, scholarship, and research. Other fair use situations are not as clear-cut. To decide whether a work is fair use, courts look at a balance of four factors:

  1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. The nature of the copyrighted work;
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. The effect of the use upon the potential market for or value of the copyrighted work.

17 U.S.C. § 107.

Each factor should be explored and weighed on a case-by-case basis, and depending on the facts of the case, some factors may weigh more heavily than others. See Campbell v. Acuff-Rose Music, Inc.

There is one fair use area however, that the Supreme Court has decided requires additional factors to determine fair use; Parody.  The reason for this is that parody and satire are closely intertwined but parody is considered fair use, while satire is not. So what is the difference and when is can an artist safely claim their work as parody?

First, lets look at the basic definitions.  To be parody, the work must poke fun or mimic the original work but cannot use the work to poke fun at something else. Parody usually attempts to exaggerate something in a humorous way.  Satire on the other hand, exposes the subject to ridicule of some kind, usually with a point of view meant to provoke or prevent change. Satire can use any point of view. Satire’s goal is to be political, social, or moral and not overtly humorous. While Parody and satire can often overlap, should you be able to claim parody, then your use of copyrighted material is likely fair use.

Next, we must still apply the four factor listed above.  If the factors in combination weigh heavily against fair use, despite it being parody, an artist may have a problem.  The court also looks at these additional factors in its parody analysis

  1. the parody must be obvious: the audience should not have to struggle to figure out what is being made fun of.
  2. the parody must take no more of the original than necessary to make its point.  So changing just the words in a chorus of a popular song, while leaving the rest of the song intact, is likely not fair use.
  3. Finally, a parody cannot pose a direct threat to the market for the original work. Think of it this way, would people buy the parody instead of the original, cannibalizing sales of the original?

Lets look at an example.  Leonardo Hidalgo, a successful artist in Miami has a piece from his collection called, Kiss My Ass, seen here.  (for more work, go to leonardohidalgo.com554376_10151673323045319_708120318_24496363_1481276470_n-300x300

While using the well-known image of the Hershey’s Kiss, the work is clearly parody.  It makes fun of the Kiss, which is the subject.  The work does not use more than is necessary to make its point, anything less and you would not know it is a Kiss.  As well, it is obvious; you can figure out the meaning immediately.  It is not a political work attempting to change behavior or habits.  And finally, While the work is commercial in nature, sold as a painting, it does not pose a monetary threat to Hershey.

One caveat that readers should consider; just because you believe your work is fair use, doesn’t mean that someone won’t try to sue you anyway.  A person may feel that the work is not fair use, someone else may not be happy with their likeness used in that way, others may see dollar signs because your sales are huge. With success and exposure often come legal actions.  It’s sad but true.  Stick something on a Snapple bottle seen in every store in the U.S., and you will be more likely to find yourself in court.

As I have mentioned in other articles, one way to help protect yourself is by registering your copyright within the first three months of publication since that will potentially allow you to recoup attorney’s fees.  And, make it easier for an attorney to take the case on a contingency basis.

Again, if you find this useful, please share it on your social media. 

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About the author

Steve Schlackman

As a photographer and Patent Attorney with a background in marketing, Steve has a unique perspective on art and law. Should you have any questions on Intellectual Property contact him at [email protected] His photography can be seen online at Fotofilosophy.com or on display at the Emmanuel Fremin Gallery in New York City.

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