Hard and fast definitions of parody are elusive. Essentially, a parody for purposes of U.S. copyright law is a work that borrows material from another work in order to make some critical comment on that original work. A discussion of parody begins with fair use. A court will look at four factors to determine whether there is fair use:
(1) The purpose and character of the use (commercial/noncommercial);
(2) The nature of the copyrighted work;
(3) Amount copied; and
(4) Effect on the market
Parody
If a work is a parody, it enjoys a degree of special protection in that the above analysis is altered. The Supreme Court has recognized the social value of parody, and commentators have noted that artists would rarely license their works to be parodied.
How does the court determine if a work is a parody? “The threshold question when fair use is raised in defense of parody is whether a perodic character may reasonably be perceived.” Campbell, 510 U.S. at 582. In other words, does the work comment on the original work or criticize it? If it does, then it is a parody. I doubt the court will go far into this issue; the subject calls for subjective, and perhaps even aesthetic judgments that judges are ill-qualified to make. It also seems clear that the sequel is commenting on Catcher in the Rye.
If a work is a parody, the four factor analysis will be viewed with particular reference to the parodie’s needs:
Factors
Under Parody
(1) Purpose and Character of Use
Can a parodic character be reasonably perceived?
(2) Nature of the Copyrighted Work
Less helpful under parody analysis (the fact that the original is a creative work “within the core of the copyright’s protective purposes … is not much help in this case, or ever likely to help much in separating the fair use sheep from the infringing goats in a parody case, since parodies almost invariably copy publicly known, expressive works.”)
(3) Amount Copied
Parody requires an artist to copy an original; thus, three considerations are made:(1) First, consideration must be given not only to the quantity of the materials taken but also to “their quality and importance” to the original work.(2) The parody must be able to ‘conjure up’ at least enough of the original to make the object of its critical wit recognizable.(3) Once enough has been taken to assure identification, how much more is reasonable will depend, say, on the extent to which the copying work’s overriding purpose and character is to parody the original or, in contrast, the likelihood that the parody may serve as a market substitute for the original.”
(4) Effect on the Market
(1) it is more likely that the new work will not affect the market for the original in a way cognizable under this factor … because the parody and the original usually serve different market functions.”(2) harm to the original resulting from the “lethal” nature of the parody is not “a harm cognizable under the Copyright Act.”(3) harm might arise if the parody serves as a market substitute for a derivative work based on the original.
The Parody Defense
Hard and fast definitions of parody are elusive. Essentially, a parody for purposes of U.S. copyright law is a work that borrows material from another work in order to make some critical comment on that original work. A discussion of parody begins with fair use. A court will look at four factors to determine whether there is fair use:
(1) The purpose and character of the use (commercial/noncommercial);
(2) The nature of the copyrighted work;
(3) Amount copied; and
(4) Effect on the market
Parody
If a work is a parody, it enjoys a degree of special protection in that the above analysis is altered. The Supreme Court has recognized the social value of parody, and commentators have noted that artists would rarely license their works to be parodied.
How does the court determine if a work is a parody? “The threshold question when fair use is raised in defense of parody is whether a perodic character may reasonably be perceived.” Campbell, 510 U.S. at 582. In other words, does the work comment on the original work or criticize it? If it does, then it is a parody. I doubt the court will go far into this issue; the subject calls for subjective, and perhaps even aesthetic judgments that judges are ill-qualified to make. It also seems clear that the sequel is commenting on Catcher in the Rye.
If a work is a parody, the four factor analysis will be viewed with particular reference to the parodie’s needs: