Monday, 24 May 2021

You say parody, I say satire, let's call the whole thing off

Some years ago there was a court case in the US where the owners of 'Dr Seuss' sued someone for using 'The Cat in the Hat' in order to create a satire (or a parody?!) about O.J.Simpson. (I'll post the reference at the end.)

The law in the US distinguishes between parody and satire for these cases. One is 'fair use', the other involves unfair use. Here's one part of the Judge's summary:

For the purposes of copyright law, the nub of the definitions, and the heart of any parodist's claim to quote from existing material, is 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.... If, on the contrary, 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), and other factors, like the extent of its commerciality, loom larger.

Id. at 580, 114 S.Ct. at 1172 (citations omitted). The Court pointed out the difference between parody (in which the copyrighted work is the target) and satire (in which the copyrighted work is merely a vehicle to poke fun at another target): "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." Id. As Justice Kennedy put it in his concurrence: "The parody must target the original, and not just its general style, the genre of art to which it belongs, or society as a whole (although if it targets the original, it may target those features as well)." Id. at 597, 114 S.Ct. at 1180. The Second Circuit in Rogers v. Koons, 960 F.2d 301, 310 (2d Cir.1992), also emphasized that unless the plaintiff's copyrighted work is at least in part the target of the defendant's satire, then the defendant's work is not a "parody" in the legal sense:

1401*1401 It is the rule in this Circuit that though the satire need not be only of the copied work and may ... also be a parody of modern society, the copied work must be, at least in part, an object of the parody, otherwise there would be no need to conjure up the original work.... By requiring that the copied work be an object of the parody, we merely insist that the audience be aware that underlying the parody there is an original and separate expression, attributable to a different artist.

Similarly, the American Heritage Dictionary defines "parody" as a "literary or artistic work that broadly mimics an author's characteristic style and holds it up to ridicule."

What is interesting for me here is that in the US 'fair use' is parody because it is equivalent to a literary commentary (at least in part) on the original writer's work. Satire uses the original in order to make a commentary on something else altogether. 

Hold that distinction  in your mind and apply it to the case of the tweet which used a Getty image of Jeremy Corbyn reading 'Bear Hunt' to some children. In so doing, it doctored the image of 'Bear Hunt' by replacing a page of the book with the words 'The Protocols of the Elders of Zion' and in the text of the tweet as a whole, it printed a parody (or satire?) of the words of 'Bear Hunt'. 

Applying this American judge's ruling, we would have to work out whether the tweeter was parodying Rosen and Oxenbury's work or using it to satirise Rosen and/or Corbyn. If it was a parody (ie a commentary on Rosen's literature and/or Oxenbury's art - according to US law, 'fair use'. If it was a satire (ie not commenting on Rosen and Oxenbury's work) then it's unfair in US law - and therefore liable to be a breach of copyright. 

I'm not really concerned about the breach of copyright in the Rosen case (UK) partly because the lines that have been parodied are public domain. My text is based on a folk song. Other parts of the book are my copyright. However, the book as a whole IS copyright - as shared by Oxenbury and me. 

Imagine if we were in the US and I tried to use this distinction between 'parody'  and 'satire'. Presumably, I would claim that it was a satire, had breached the copyright of the book as a whole. What's more it had done so in a way that was hurtful to me. It is in effect what Americans call a 'racial  slur'. 

What do  you think? 

Please feel free to comment on this at twitter or Facebook. 

Here's the link to the Dr Seuss case: