The Art of Asserting a Parody Defense
Sep 25, 2023 | Law Student Blog,
By Kim Ly, University of Michigan Law School, Juris Doctorate Candidate, 2025
From The Onion to memes to more recently, the movie, Bottoms, parodying occurs when you take other work and then build on top of it. Parodies can be humorous and poignant, or, neither, like the movie Meet the Spartans (which had an audience score of 25% on Rotten Tomatoes). Taking another person’s work may implicate copyright law, however, and there’s a limit to what and how much you can take—which is why the photographer in the Mattel v. Walking Mountain Productions case could use copyrighted elements but the publisher in Dr. Seuss Enterprises v. Penguin Books USA could not.
What Your Can Take
In copyright law, Campbell v. Acuff-Rose Music tells us that a parodist must show that their work at least in part comments on what they took from the original. To take from an original doesn’t require that work be the sole subject of your parody, but it does require that your parody can reasonably be perceived as commenting on the original.
The case distinguished between parodies and satires, allowing a legal defense for only the former. Parodies, unlike satires, need the elements they copy to make their message. This means if you want to comment on a particular book (parody), you can probably justify copying from it. If you want to comment on books in society in general (satire), you’ll have a much harder time justifying copying from a book.
Additionally, a legal parody has to target the specific element copied, not just the general style or the genre of art of the original. So, if you want to parody a book’s appearance, you can use the parody defense to justify copying its cover but probably not its prose.
The answer to our earlier question about the difference between the photographer in Mattel v. Walking Mountain Productions and the publisher in Dr. Seuss Enterprises v. Penguin Books USA, then, is the purpose of what was copied.
In the Mattel case, the photographer wanted to critique the standard of the female body that Barbie dolls have come to embody. Because of this, he was allowed to use actual Barbie dolls in his Barbie-parodying photo collection, “Food Chain Barbie.” His photos portray Barbie dolls in configurations like naked in a vintage malt machine or disembodied in a fondue pot. Conversely, in the Cat in the Hat case, the infringing book, entitled Cat Not in the Hat!, was a retelling of the O.J. Simpson murder trial. The book took the character design, style and rhyme scheme made famous in The Cat in the Hat books. The court found no link between the messaging behind the book and what was taken. The court even found the authors of the book simply copied the elements “to get attention.”
How Much Can You Take
There is a range of what is lawfully allowable. You can take at least enough of the original to make the object of your parody recognizable. This might mean you can take what makes up the “heart” of the copyrighted work if that is what is needed to make your parody. Acuff-Rose Music recognized that most of the time, parodies need to take the main part of the original – in that case, the song “Pretty Woman” — to get their message across. In the Mattel case, the photographer had to use actual Barbie dolls to create his photos parodying how Barbie dolls portrayed women. Using another brand of dolls would not allow the audience to understand the object of his parody.
The upper limit of that range is a little harder to figure out. You aren’t allowed to take as much as you need to make the best parody but rather, enough to make a parody. In Walt Disney Productions v. Air Pirates, a comic book parodying the innocent nature of famous Disney cartoons like Mickey Mouse took too much when it copied the likeness of the characters exactly. Because the comic book targeted characters that are so recognizable, there is less need to exactly copy the original character in order to allow the audience to know the object of the parody.
Parodic Clarity is the Key
Like in all areas of the law, reality and litigation success do not necessarily directly correlate. To succeed under a parody defense in a copyright infringement claim, you should convince a judge or jury of your intent.
In the Mattel case, the photographer did two smart things that allowed him to win his case against the doll company. First, he gave a very clear statement of intent behind “Food Chain Barbie” — “to critique the objectification of women associated with [Barbie], and [to] lambast the conventional beauty myth” that “Barbie embodies.” He also went a step further and explained why he chose to target Barbie — because “he believes that Barbie is the most enduring of those products that feed on the insecurities of our beauty and perfection-obsessed consumer culture.” Perhaps a third implicit factor for success here is that Mattel had churned out so many Barbie advertisements that the message that the doll embodied the female ideal was easily digestible for the court. The photographer might have had a harder time trying to comment on something with a less clear message.
In the Cat in the Hat case, the court said the authors of the parodying book took without commenting on anything about the rhyming scheme or stanzas of the original…but maybe the publisher could have prevailed if their lawyers had said the book intended to parody the Cat in the Hat books’ whimsical and innocent nature by juxtaposing its elements with the context of a murder trial. The lawyers also may have messed up in their defense by saying the parody defense applied to satirical usages (implying their client’s usage was for satire) . . . which as you know from earlier in this article, is not true.
The next time you create a parody, remember that it needs to clearly criticize or comment on what you take.
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