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The line between parody and copyright infringement

News and Notes Focused on the 3 Public Faces of IP Law

  • Brand Image Protection - Trademark Law
  • Visual Image Protection - Copyright Law
  • Personal Image Protection - Right of Publicity Law

The Image Protection Law blog has been created in order to share stories and information on the legal aspects of: 1) the marketplace reputation of a company or product captured in its trademark, 2) published or publicly-displayed artwork, photography, and any created visual design, and 3) use of a person's photograph or likeness for product promotion or other commercial purposes.

The "IP3" share at least one thing in common: Image is everything. In these posts let's look at what that means in the realm of intellectual property in the news, but let's also be prepared to explore if there's something more beyond "everything." Don't forget, the intellectual in "intellectual property" doesn't mean smart or brainy, although by nature true creators often are. The word is used to refer to any creation, i.e., a "product of the mind." While this blog will be regularly updated, you are encouraged to share your thoughts on these posts.

You probably know that you're not allowed to use a copyrighted song in your Youtube video. Such an action would be a violation of intellectual property protections. But why do roasts of popular songs on SNL get away with using other people's creative works? Today we'll discuss an important concept in intellectual property law: the fair use defense.

Under the Copyright Act, there are certain "fair use" exceptions to copyright law. An individual can use an artist's work without permission if it is for the purpose of critique, news reporting or for educational purposes (research, scholarship or teaching). Parodies--which are by definition a form of criticism--fall under this approved category. The law outlines a litmus test to determine whether a particular situation constitutes fair use:

  1. What is the purpose and character of the use (commercial, educational, nonprofit)?
  2. What is the nature of the copyrighted work?
  3. What portion of the copyrighted work is being used?
  4. How does the use impact the value of the copyrighted work?

Using the above four criteria, a court might rely heavily on the first point in determining whether a copyrighted work is truly a parody. It might investigate whether the new work adds something different and supplementary to the original work. Does the parody offer new expression, new meaning or other types of transformative value? However, because parodies are distinct from the other forms of copyrighted use allowable under fair use, courts have often encountered challenges when attempting to apply the other three criteria to parodies.

If you have questions surrounding fair use under copyright law, an experienced intellectual property attorney can help you make sense of it.

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