Parody v. satire II: Footnote 14 of Campbell is the key

This is a review and follow-up of my last post.

Online law dictionaries generally do not define either "parody" or "satire." The Law.com dictionary online dictionary defines "parody" as an imitation: "the humorous use of an existing song, play, or writing which changes the words to give farcical and ironic meaning." The only clear distinction between "parody" and "satire" in non-legal dictionaries is that a parody is an imitation of an original work whereas "satire" is not defined as either an imitation or exact copy of an original work (and a satire need not copy or borrow from another work at all) -- the Supreme Court and some legal analysts have not emphasized this distinction. Since "Expelled" did not use an imitation of "Imagine," "Expelled"s use of the song cannot be a parody and must therefore be a satire. It appears that so far as dictionaries' definitions are concerned, a parody or a satire may ridicule anything: an original work, an original work's author(s), other individuals, a group, society, or whatever. In fact, I would even go so far as to loosely define "parody" as a "satire that is an imitation of an original work" (though there may be nuances of meaning that would make this definition an oversimplification). However, the Supreme Court apparently made new legal definitions of parody and satire, and furthermore other authorities misinterpreted the Supreme Court's definition of satire, which the Supreme Court did not clearly define. A report by the American Bar Association says (page 2),
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The [Supreme] 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. [Campbell v. Acuff-Rose Music, Inc., 510 US 569, 581] (emphasis added)

However, that above definition of satire misrepresents what the court actually said in Campbell ((I wish that Cornell's copies of opinions would include page numbers in the text in order to make stuff easier to find):
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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. [15] (emphasis added)

The preceding sentence in Campbell is footnoted by Footnote 15, which says,

15. Satire has been defined as a work "in which prevalent follies or vices are assailed with ridicule," 14 The Oxford English Dictionary 500 (2d ed. 1989), or are "attacked through irony, derision, or wit," The American Heritage Dictionary 1604 (3d ed. 1992).

But the ABA report's interpretation of the above dictionary definitions -- that a "satire" by definition "uses the work to criticize something else" -- reads too much into them; these definitions do not say that a satire by definition can never criticize an original work or an original work's author(s). And the Supreme Court's above distinctions between "satire" and "parody" ("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.") are vague and meaningless.

An article titled "Unfair Use: The Lack of Fair Use Protection for satire under § 107 of the Copyright Act," in the June 2004 issue of the Journal of Technology Law & Policy, says,

II. Parody Versus Satire

A. What Is the Difference?
Courts often had difficulty distinguishing between parody and satire because “parody often shades into satire . . . [and] a work may contain both parodic and nonparodic elements.”[11] Then, in Campbell v. Acuff-Rose Music, Inc., the U.S. Supreme Court defined parody as “the use of some elements of a prior author’s composition to create a new one that, at least in part, comments on that author’s works.”[12] Indeed, the wittiest parodies target not only the parodied material, but also the societal standards of the audience that made the original popular.[13] In addition, Campbell defined satire as “commentary [that] has no critical bearing on the substance or style of the original composition. . . .”[14] In subsequent decisions courts have used Campbell’s definitions of parody and satire to distinguish between the two genres.[15] (the numbers are for footnotes. Emphasis added)

Again, the bolded definition of "satire" given above misrepresents what the court actually said. In a paragraph that discussed parody and that did not mention satire at all, Campbell said (corresponding text is shown in bold):

If . . . . the commentary 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 up something fresh, the claim to fairness in borrowing from another's work diminishes accordingly (if it does not vanish) . . . .(emphasis added)

So contrary to a widespread misconception, the Supreme Court never defined "satire" as something that never criticizes an original work or an original work's author(s) but only criticizes something else. And contrary to another widespread misconception, Campbell did not say that "satires" -- which are often not even clearly distinguished from "parodies" -- deserve less fair-use protection than "parodies" or even no fair-use protection at all -- the court only said that satires require a special kind of justification: "justification for the very act of borrowing." But since parodies also require such justification for fair use, this statement of the Supreme Court is meaningless. In summary, the parody/satire distinction that is commonly accepted as a fair-use principle is a gigantic fraud.

Anyway, any distinction between "parody" and "satire" does not matter here because footnote 14 of Campbell v. Acuff-Rose Music applies to both parodies and satires "when there is little or no risk of market substitution," which is the case in "Expelled"s use of "Imagine":

Footnote 14:

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)

As for "other factors," no one who just wants to listen to "Imagine" is going to go see "Expelled" in a theatre or buy a video recording of the movie.

It's important to pay attention to the footnotes -- I usually overlook them, something I will not do in the future. I commend the authors of the ABA report for pointing out the significance of footnote 14. And thanks again (not) to commenter "David" for pointing out the importance of the parody/satire issue in a rude manner (saying that I know nothing about the law).

Disclaimer: Personally, I think that "Expelled"s verbal comment about "Imagine" -- that Sleazy PZ Myers' atheism was not new but was merely borrowed from John Lennon's playbook -- is rather inane. But it is still fair use.
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