Issue in Yoko v. Expelled: parody v. satire

In the comment thread under my post "Legal analysis of Yoko Ono's suit against 'Expelled'," a commenter named "David" -- probably a pettifogging attorney -- said,

Larry really should stop pretending he knows anything about the law.

Even a layperson who is ignorant of the law in general can quickly become an expert in a narrow area of the law through extensive investigation and study. This is something that legal professionals fail to understand. In fact, I see no reason why well-argued amicus briefs from laypeople should not be considered acceptable. There is nothing wrong about amateurs doing legal analysis, as they can point out things that the pros missed. Different issues apply to different cases, so experience with other cases is not necessarily an advantage.

David said in the same comment,

(Larry said)"Indeed, a common defense against charges of copyright infringement is that the use is satire, which is often not favorable towards the copyrighted material."

Also, you're confusing parody and satire.

-- and said in a later comment,

And perhaps one really shouldn't assume, then, that non-legal dictionaries are a substitute for law school. In copyright law, satire and parody have distinct meanings and (more importantly) distinct implications.

You are the one who is confusing "parody" and "satire." Since neither "parody" nor "satire" is defined in most online law dictionaries, it is necessary to use non-legal dictionaries to get definitions. The meanings of parody and satire overlap, and the only big difference is that a "parody" is an imitation of the original work whereas "satire" does not necessarily involve an imitation of the original work. Also, one online law dictionary that does define "parody," Law.com dictionary, supports this idea of imitation: "the humorous use of an existing song, play, or writing which changes the words to give farcical and ironic meaning." Since "Expelled"s use of "Imagine" does not involve an imitation of "Imagine," then such use must be satire. So I didn't confuse parody and satire, David, I used the correct term for "Expelled"s use of "Imagine."

David is right about one thing -- the courts have attempted to make a distinction in application of copyright law to parodies and satires. However, a report titled "The Satire/Parody Distinction in Copyright and Trademark Law -- Can Satire Ever be a Fair Use?", by the Intellectual Property Litigation Committee of the American Bar Association, gives an explicit Supreme Court definition for "parody" but not for "satire" (as I noted above, IMO the only clear difference between the two terms is that parody involves imitation of the original work whereas "satire" does not necessarily involve imitation of the original work). The ABA report says (page 2):
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Supreme Court Weighs in on Parodic and Satiric Fair Use in Campbell v. Acuff-Rose Music, Inc.

The Supreme Court has unequivocally held that a parody may qualify as fair use under §107 (the fair use law, 17 USC §107). According to the Court, a parody is the "use of some elements of a prior author's composition to create a new one that, at least in part, comments on the author's works." Id. at 580 . . . .

1. The Court creates a fair use dichotomy between parody and satire

After concluding that parody could be considered fair use, the Court quickly qualified its holding: if the work has no critical bearing on the substance or style of the original composition, which the alleged infringer merely uses to get attention or to avoid the drudgery in working something fresh," the work is less transformative, and other fair use factors, such as whether the new work was sold commercially, loom larger. Id. at 580. The Court explained further that while a parody targets and mimics the original work to make its point, a satire uses the work to criticize something else, and therefore requires justification for the very act of borrowing. See id. at 581. As a result, the Court appears to favor parody under the fair use doctrine, while devaluing satire. (emphasis added)

The above statement in bold misrepresents what the court actually said:

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.

Anyway, IMO these distinctions between "parody" and "satire" -- like so many distinctions that the courts make -- are arbitrary, capricious, vague, nitpicking, and immaterial. IMO what counts in fair use is whether the use is a commentary, whether a commentary on the original work, society, or both. Consider, for example, my picture showing Adolf Hitler quoting Shakespeare's King Lear, "What? I don't 'need' Darwin? O, reason not the need!," in response to the Anti-Defamation League's statement, "Hitler did not need Darwin to devise his heinous plan to exterminate the Jewish people." Is that not fair use of King Lear even though it is not a parody? (notwithstanding the fact that King Lear's copyright -- if it ever had one -- has expired).

Also, the following statement in the ABA report (page 3) supports a fair use claim for "Expelled"s use of "Imagine":

Footnote 14 clarifies the Court's position regarding parody versus satire, and reemphasizes the fact that a proper fair use analysis considers all of the §107 factors (and potentially others). The Court underscored this point, noting that "parody, like any other use, has to work its way through the relevant [fair use] factors, and be judged case by case, in light of the ends of copyright law." Id. at 581. Therefore, even satire that does not target the original work can be considered fair use if, for instance, there is little possibility that consumers would view the satire as a commercial substitute (§107(4)), or if only a small amount of the copyrighted work was used (§107(3)).

§107(3) and §107(4) refer to the third and fourth factors in the fair use law, 17 USC §107:

(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.

Footnote 14 of Campbell v. Acuff-Rose Music says,

A parody that more loosely targets an original than the parody presented here may still be sufficiently aimed at an original work to come within our analysis of parody. If a parody whose wide dissemination in the market runs the risk of serving as a substitute for the original or licensed derivatives (see infra, discussing factor four), it is more incumbent on one claiming fair use to establish the extent of transformation and the parody's critical relationship to the original. By contrast, when there is little or no risk of market substitution, whether because of the large extent of transformation of the earlier work, the new work's minimal distribution in the market, the small extent to which it borrows from an original, or other factors, taking parodic aim at an original is a less critical factor in the analysis, and looser forms of parody may be found to be fair use, as may satire with lesser justification for the borrowing than would otherwise be required. (emphasis added)

Disclaimer: the ABA report runs for 17 pages and my above analysis of the report is not intended to be a complete analysis. I may return to the report later.

Anyway, David, thanks for pointing out that there are legal differences (such as they are) between "parody" and "satire" -- but you should have done so in a polite way.
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