Parody as Protected Speech

Abby Masenheimer Justice, Law, and the Constitution Professor Rosenbluth 12/8/11

The Simpsons premiered on FOX December 17, 1989 and is still producing new episodes today.1 The hit comedy series is a parody about a dysfunctional American family that pokes fun at American pop culture and its icons. It is the longest running American sitcom, as well as the longest running American cartoon program.2 The Simpsons franchise has also expanded to the movie screen, as well as amusement parks like Universal Studios Florida, among other things. However, without a Supreme Court decision in 1988 none of The Simpsons franchise would exist. In a decision in Hustler Magazine v. Falwell (1988), the Court ruled that parodies of public figures are protected by the First Amendment.3 Because of this ruling, The Simpsons and other parody shows such as South Park and Family Guy can parody public figures under the First Amendment. Parody and Fair Use In order to understand what exactly constitutes a parody, it is first important to define a fair use. According to Stanford University, a fair use is any copying of copyrighted material done for a limited and transformative purpose, such as to comment upon, criticize, or parody a copyrighted work.4 Fair use can be used as a defense for copyright infringement. If the use of material can be classified as fair use, then it is not an illegal infringement on copyrighted material.5 While there is no set formula for what constitutes a fair use, there are some basic guidelines to follow.

1 2

The Simpsons, Wikipedia, http://en.wikipedia.org/wiki/Simpsons. The Simpsons. 3 Hustler v. Falwell., The Oyez Project, http://www.oyez.org/cases/19801989/1987/1987_86_1278, (December 2, 1987). 4 Stanford Copyright and Fair Use Center. What is Fair Use? http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/9-a.html 5 Stanford.

In general, two questions are asked to determine whether or not a work is a fair use or a violation of copyright law. These two questions are: Did the unlicensed use transform the copyrighted material by using it for a different purposein a different contextor did it just repeat the work for the same intent and value as the original? and Was the amount and nature of material taken appropriate? Basically did you take only enough of the copyrighted material to make the point you were making?6 These two questions help courts determine whether or not a work is a legal use of a copyrighted work. Fair use has no clear-cut definition. This is because the lawmakers who established fair use were wary of limiting its definition because they wanted it to have a broad meaning that is open to interpretation, similar to free speech.7 However broad, there are two divisions of fair use: commentary and criticism and parody.8 Commentary and criticism is used when a person is commenting on a copyrighted work.9 This type of fair use is generally used in reviews of movies, books, television shows, and music. If lines of dialogue or lyrics are quoted in order to criticize, it is considered commentary and criticism. Another example of commentary and criticism is quoting and summarizing sources in papers. According to Stanford, these examples of commentary and criticism are allowed because the public reaps benefits from your review, which is enhanced by including some of the copyrighted material.10

Center for Social Media, Fair Use Teaching Tools: Fair Use PowerPoint. http://www.centerforsocialmedia.org/fair-use/related-materials/teaching-materials/fair-useteaching-tools 7 Stanford. 8 Stanford. 9 Stanford. 10 Stanford.

The second form of fair use is parody. A parody is a work that ridicules another, usually well-known work, by imitating it in a comic way.11 Parodies are just another form of criticism and because of this, they derive from another work. These works can be anything: literature, music, artwork, movies, etc. These works are then transformed into a new piece that pokes fun at public figures, public officials, and pop culture.12 Although parody is considered a fair use and therefore, is a defense to copyright infringement today, it did not always exist. In fact, without a key Court decision involving libel, parody could be considered libelous and therefore, unprotected speech. History New York Times v. Sullivan (1963) is the cornerstone case that decided the constitutionality of parody. In Times v. Sullivan, the New York Times ran an ad that stated that Martin Luther King, Jr.s arrest in Montgomery, Alabama was merely a ploy to destroy Kings plan to desegregate public facilities and persuade blacks to vote13. The ad also allegedly made false statements about the Montgomery police.14 L.B. Sullivan, the elected Montgomery city commissioner, sued the New York Times for libel, claiming that he was defamed by the statements about the police. Sullivan was awarded $500,000 in damages because Alabama law did not require that Sullivan prove that he had been harmed. He was also awarded damages

11 12

Stanford. Publishing Law Center, Parody: Fair Use or Copyright Infringement?, http://www.publaw.com/article/parody-fair-use-or-copyright-infringement/ 13 New York Times v. Sullivan, The Oyez Project, http://www.oyez.org/cases/19601969/1963/1963_39 (January 6, 1964). 14 New York Times v. Sullivan, Justia, http://supreme.justia.com/us/376/254/case.html (January 6, 1964).

because the New York Times could not use truth, which is an absolute defense to libel in the United States, as a defense because the ad did contain factual errors.15 The New York Times appealed to the Supreme Court. The question considered in this case was: Did Alabama's libel law, by not requiring Sullivan to prove that an advertisement personally harmed him and dismissing the same as untruthful due to factual errors, unconstitutionally infringe on the First Amendment's freedom of speech and freedom of press protections?16 The Court, by a vote of 9-0, ruled in favor of the New York Times. They decided that Alabamas libel law was unconstitutional because it violated the First Amendments speech and freedom of press protections. Justice Brennan delivered the opinion of the court, which established the actual malice standard. Actual malice is the knowledge that statements are false or in reckless disregard of the truth.17 In other words, in order to be found guilty of libel, a person must have acted with actual malice, meaning he knew the statements he was printing were false or he did not bother to fact check the statements. This standard was adopted for public officials and public figures. Public officials and public figures are people whose names are commonly recognizable. Essentially, they are people with household names. Because Sullivan was an elected official, he was considered a public official. Based on the Courts actual malice standard, he had to prove that the New York Times knew the statements made were false or did not bother to check the facts. In this case, the Court found that the evidence was constitutionally insufficient to support the judgment for respondent, since it failed to support a finding that the statements were made with actual malice or that they related

15 16

New York Times (Oyez). New York Times (Oyez). 17 New York Times (Justia).

to respondent.18 In other words, the Court found that there was not sufficient information to prove that the New York Times knowingly and willingly intended to harm Sullivans reputation. Thus, the Court found that the New York Times did not act with actual malice and therefore, the defamatory statements made against Sullivan were not libelous. New York Times v. Sullivan is an exceptionally important case because it established the actual malice rule for public figures. Without the actual malice standard, the landmark case for fair use and parody Hustler Magazine v. Falwell (1988, which involves the parody of a public figure, would have had a different outcome. Hustler Magazine v. Falwell (1988) began with a 1983 parody advertisement in the November issue of Hustler Magazine. The advertisement featured Jerry Falwell, a well-known Fundamentalist minister who comments on political affairs. The parody claimed Falwell had a drunken incestuous relationship with his mother in an outhouse. Falwell sued for libel, invasion of privacy, and intentional infliction of emotional distress. He was awarded $150,000 in damages for the emotional distress claim.19 Hustler Magazine then appealed. In a unanimous 8-0 decision (Justice Kennedy abstained), the Court reversed the trial courts decision.20 In the courts decision, Justice Rehnquist noted the actual malice standard set by Times v. Sullivan. Based on this standard, the court found that under the First and Fourteenth Amendments, public officials cannot receive damages for intentional infliction of emotional distress based on a parody, unless the author acted with actual malice.21 In this case, the States interest in protecting public figures from emotional distress is not sufficient to deny First

18 19

New York Times (Justia). Hustler v. Falwell (Oyez). 20 Hustler v. Falwell, Cornell Law, http://www.law.cornell.edu/supct/html/historics/USSC_CR_0485_0046_ZS.html. 21 Hustler v. Falwell (Cornell).

Amendment protection to speech that is patently offensive and is intended to inflict emotional injury when that speech could not reasonably have been interpreted as stating actual facts about the public figure involved.22 In other words, the State has a greater purpose in defending free speech than protecting public figures from emotional distress over a statement as ridiculous as that made in Hustler Magazines parody ad. Because the Court ruled in Hustler v. Falwell that a public figure cannot be awarded damages for intentional infliction of emotional distress from a parody ad because of the actual malice standard set in Times v. Sullivan, Hustler created a protection for parodies. This protection ensures that public figures and public officials cannot sue for damages based solely on a parody, unless they can prove actual malice. Since Hustler, many more cases have come about and have been ruled in favor of parody. Unlike Hustler, however, the cases focus more on the copyright infringement aspect than the libel aspect addressed in Hustler. The next major parody and fair use case to reach the Court is Campbell v. Acuff-Rose Music (1994). The main concern in Campbell was copyright infringement, which is another important aspect to establishing parody as a form of protected speech. Campbell established that a commercial parody can qualify as a fair use. In Campbell, a rap group called 2 Live Crew wrote a song called Pretty Woman, that was a parody of the 1964 Roy Orbison song Oh, Pretty Woman. In the affidavit written to Acuff-Rose Music, 2 Live Crew wrote that the song intended through comical lyrics, to satirize the original work.23 They also included a copy of the recorded song, hoping to get permission to release it from the music company. But when

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Hustler v. Falwell (Cornell). Campbell v. Acuff Rose Music, Google Scholar, http://scholar.google.com/scholar_case?case=16686162998040575773&hl=en&as_sdt=2&as_vi s=1&oi=scholarr.

Acuff-Rose refused, 2 Live Crew released the song anyway, making sure to give credit to the original composer of the song. Acuff-Rose Music sued for copyright infringement. The district court ruled in favor of 2 Live Crew, but on appeal, Acuff-Music won. The Supreme Court, however, agreed with the district court.24 The Supreme Court found that 2 Live Crews parody of Oh, Pretty Woman was a fair use of a copyrighted work because it was used for the purpose of criticism or comment.25 The Supreme Court also said that parody itself is a form of criticism or comment and whether and to what extent it is transformative, altering the original with new expression meaning, or message.26 Simply put, the Supreme Court decided that 2 Live Crews parody was transformative enough from the original version of Oh, Pretty Woman that it altered the original enough that it became a new work that provided a new meaning. Although in this case the Court ruled that the parody was a fair use, the Court made it clear that its decision was not a blanket statement. They ruled that parodies can be considered fair use only on a case-by-case basis.27 They cited four factors that could determine whether or not a parody could be considered a fair use. The first factor is that the parody must use some parts of the original work to create a new one that at least partially comments on the original.28 The second factor is that the parodied work must be a copyrightable creative work.29 The third factor contains three parts: the quantity and quality of the original materials and importance to the original work should be considered; the original work must be recognizable from the parody,

24 25

Campbell v. Acuff-Rose Music Campbell v. Acuff-Rose Music, Cornell Law, http://www.law.cornell.edu/supct/html/921292.ZS.html. 26 Campbell v. Acuff-Rose (Cornell). 27 Campbell v. Acuff-Rose. 28 Campbell v. Acuff-Rose. 29 Campbell v. Acuff-Rose.

and the likelihood that the parody may serve as a market substitute for the original.30 The fourth is the parody cannot affect the market functions of the original.31 Although not a Supreme Court case, Leibovitz v. Paramount Pictures Corp. (1998) emphasized the transformative aspect of fair use, as clarified by Campbell. Leibovitz was decided by the United States Court of Appeals, Second Circuit. In Leibovitz, well-known photographer Annie Leibovitz claims that her widely recognized copyrighted pictures of actress Demi Moore was infringed by Paramount Pictures in a movie poster for the Naked Gun 33 1/3: The Final Insult.32 In Leibovitzs photo, Moore, who was pregnant at the time, was depicted nude, in profile, with her right hand and arm covering her breasts and her left hand supporting her distended stomach-a well known pose evocative of Botticelli's Birth of Venus.33 There is also a ring on Moores finger and she is displaying a serious facial expression. The Naked Gun poster is nearly identical; the main two differences are that a different female model was used and actor Leslie Nielsons head was superimposed on the female models body.34 The district court ruled in favor of Paramount, which used the fair use rule. Leibovitz, however, appealed arguing that because the work was commercial, it should receive little protection under the fair use defense. The circuit court affirmed the decision in the district court on the grounds that this advertisement qualifies as a parody entitled to the fair use defense under the analysis set forth by the Supreme Court in Campbell v. Acuff-Rose Music.35

30 31

Campbell v. Acuff-Rose. Campbell v. Acuff-Rose. 32 Leibovitz v. Paramount Pictures, Find Law, http://caselaw.findlaw.com/us-2ndcircuit/1306605.html. 33 Leibovitz. 34 Leibovitz. 35 Leibovitz.

The Circuit Court in Leibovitz reasoned that under Campbells clarification of fair use the movie poster is indeed protected. Under the first factor described in Campbell, the circuit court concluded that the Naked Gun poster was perceived as commenting on the original because Nielsons face was a stark contrast from Moores in the original.36 The Circuit court determined that the second factor described under Campbell favors Leibovitz, but it does not hold much weight.37 For the third factor, Leibovitz argues that more than enough elements from her work were taken for the parody. However, Campbell instructs that sometimes this is necessary to create the parody and because of this, the Circuit Court deemed the extensive Photoshop necessary.38 Leibovitz noted that based on the fourth factor the parody did not interfere with the market value of her original work. She did note that it deprived her of a licensing fee. The Court, however, determined that she is not entitled to the licensing fee for a work that qualifies as a parody.39 In the past two Court decisions, the works have been classified as fair use. This is not always the case. In Dr. Seuss Enterprises, L.P. v. Penguin Books USA, Inc. (1997), the 9th Circuit Court of Appeals ruled against a parody entitled The Cat NOT in the Hat! By Dr. Juice. The author of the book used the world of Dr. Seuss to describe the O.J. Simpson trial. The Court determined that because the book did not comment or critique on the original work, it could not be considered a fair use.40 Because of this, The Cat NOT in the Hat could not be considered a parody under the definition provided in Campbell. Instead, it was considered satire because the

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Leibovitz. Leibovitz. 38 Leibovitz. 39 Leibovitz. 40 Dr. Seuss Enterprises, LP v. Penguin Books, Google Scholar, http://scholar.google.com/scholar_case?case=15758460119711775481&hl=en&as_sdt=2&as_vi s=1&oi=scholarr.

Dr. Seuss characters and familiar Dr. Seuss passages were used to merely comment on the O.J. Simpson trial.41 In addition to the examples provided above, there are many forms of parody that exist today. As mentioned earlier, television shows like The Simpson, Family Guy, and South Park often parody pop culture and public figures. Movies and YouTube videos also parody both original works and public figures. Some examples include: A Very Brady Movie, which parodies the sitcom The Brady Family and the original shows actors; Airplane!, which parodies disaster film movies; and Anchorman: The Legend of Ron Burgundy, which parodies 1970s newscasters.42 Another current example is the marketing campaign for the newly released Muppets movie. Multiple parody trailers were created for the movie that spoof newly released films. In the final parody trailer, The Muppets parody the trailers for Paranormal Activity, Puss in Boots, Happy Feet, Breaking Dawn (Twilight series), and strangely enough the trailer for their own movie.43 Each segment of the final parody trailer has recognizable elements from the movies, yet is transformative. For example, the Paranormal Activity section is filmed in the same filter as the original movie, but the dialogue is different. The Muppets scream, albeit in a half-hearted, unconvincing way as if to suggest that the movie is not really that scary. Because of this element, the parody can successfully be considered a criticism of the original work. Discussion The Supreme Court has determined that parody is acceptable in two different mediums: basic free speech and copyright infringement. Parody of public figures, which is frequent on
41 42

Dr. Seuss. List of All Parody Films, http://www.ranker.com/list/parody-movies-andfilms/reference?page=1&format=GRID&sortby=&sortdir=&limit= 43 http://www.youtube.com/watch?v=KsPz51_M3fI

television shows like The Simpsons and South Park, is protected under the First Amendment no matter how harsh the statements may be. This is because the people who are being parodied are public figures or public officials. Because of this, they cannot sue for emotional distress or libel. I agree with the decision made in Hustler v. Falwell. Falwell, as a public figure, had put himself into the spotlight and because of that, people should have the right to comment on what he is doing. Its like Kim Kardashian. She chose to have her wedding broadcast on national TV and when she filed for divorce days later, people should have the right to comment on it. I think its a matter of the most basic form of freedom of speech and parody is just a more creative form of that speech and thats why it crosses into copyright infringement boundaries as well. Copyright law is important to protect creative works, but I agree with the Supreme Court that other creative works (such as parodies) can derive from these copyrighted works if they are, indeed, transformative. As cited in Campbell v. Acuff-Rose, Justice Story said in Emerson v. Davies "[i]n truth, in literature, in science and in art, there are, and can be, few, if any, things, which in an abstract sense, are strictly new and original throughout. Every book in literature, science and art, borrows, and must necessarily borrow, and use much which was well known and used before.44 Think about it this way: how many times has the story of Cinderella been told? Many: the Disney version, Rogers and Hammerstein, and the Hillary Duff movie A Cinderella Story. The basic story is the same every time, but each one has something that makes the work transformative. The Disney version is a cartoon, Rogers and Hammersteins is a musical, and Hillary Duffs is modern day. In my opinion, protection from copyright law is derived from the First Amendment and provisions for fair use are in place in order to protect free speech because

44

Campbell v. Acuff-Rose.

if we lived in a world without commentary and criticism, whether straight up or through parody, there would be very little creativity in the world. Its clear that parody is protected under the First Amendment provision for free speech and a proper defense to copyright infringement. Without the decisions in New York Times v. Sullivan and Hustler Magazine v. Falwell (among others), parody might not have been seen as protected speech. In the words of Homer Simpson, doh.

Works Cited "Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994)." LII | LII / Legal Information Institute. 09 Nov. 1993. Web. 08 Dec. 2011. <http://www.law.cornell.edu/supct/html/921292.ZS.html>. "Campbell v. Acuff-Rose Music." Google Scholar. Google Scholar. Web. 08 Dec. 2011. <http://scholar.google.com/scholar_case?case=16686162998040575773>. "Dr. Seuss Enterprises, LP v. Penguin Books." Google Scholar. Web. 8 Dec. 2011. <http://scholar.google.com/scholar_case?case=15758460119711775481&hl=en&as_sdt= 2&as_vis=1&oi=scholarr>. "Fair Use Teaching Tools - Fair Use PowerPoint." Center for Social Media. Web. 08 Dec. 2011. <http://www.centerforsocialmedia.org/fair-use/related-materials/teaching-materials/fairuse-teaching-tools>. "Hustler Magazine, Inc. v. Falwell." LII | LII / Legal Information Institute. 02 Dec. 1987. Web. 08 Dec. 2011. <http://www.law.cornell.edu/supct/html/historics/USSC_CR_0485_0046_ZS.html>. "Hustler Magazine v. Falwell | The Oyez Project at IIT Chicago-Kent College of Law." The Oyez Project at IIT Chicago-Kent College of Law | A Multimedia Archive of the Supreme Court of the United States. Web. 08 Dec. 2011. <http://www.oyez.org/cases/19801989/1987/1987_86_1278>. "Hustler Magazine v. Falwell." The Oyez Project at IIT Chicago-Kent College of Law | A Multimedia Archive of the Supreme Court of the United States. Web. 08 Dec. 2011. <http://www.oyez.org/cases/1980-1989/1987/1987_86_1278>. "Leibovitz v. Paramount Pictures." Find Law for Legal Professionals. Web. 8 Dec. 2011. <http://caselaw.findlaw.com/us-2nd-circuit/1306605.html>. "New York Times v. Sullivan. US Supreme Court Cases from Justia. Web. 08 Dec. 2011. <http://supreme.justia.com/us/376/254/case.html>. "New York Times v. Sullivan. The Oyez Project at IIT Chicago-Kent College of Law | A Multimedia Archive of the Supreme Court of the United States. Web. 08 Dec. 2011. <http://www.oyez.org/cases/1960-1969/1963/1963_39>. "Parody: Fair Use or Copyright Infringement." Publishing Law Center | Legal Information for the Publishing Community. Web. 08 Dec. 2011. <http://www.publaw.com/article/parodyfair-use-or-copyright-infringement/>. "Parody Films | Movie Parody | Film Parodies | List of Parody Movies." Top 10 Lists & Much More - The Best Lists About Everything | Ranker - A World of Lists. Web. 08 Dec. 2011. <http://www.ranker.com/list/parody-movies-and-films/reference?page=1>. "The Simpsons." Wikipedia, the Free Encyclopedia. Web. 08 Dec. 2011. <http://en.wikipedia.org/wiki/Simpsons>. "Stanford Copyright & Fair Use - What Is Fair Use?" Stanford Copyright & Fair Use Center. Web. 08 Dec. 2011. <http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/9-a.html>.