When Is Parody Fair Use

University of Chicago Law School
University of Chicago Press

When Is Parody Fair Use?
Author(s): Richard A. Posner
Source: The Journal of Legal Studies, Vol. 21, No. 1 (Jan., 1992), pp. 67-78
Published by: University of Chicago Press for University of Chicago Law School
Stable URL: http://www.jstor.org/stable/724401
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WHEN IS PARODY FAIR USE?

RICHARD A. POSNER*
I.
PARODYis imitation. And imitation, when it is of an expressive work
such as a novel or play or movie, is a taking. The parodisttakes from,
or if you wish "copies," parts or aspects of anotherexpressive work. If
that work is copyrighted, why isn't the parodistan infringer?The usual
answer is that the use a parodist makes of the parodied, that is, of the
copied work, is a "fair use" within the meaningof copyrightlaw and is
therefore lawful.' The answer does not always succeed in persuading
courts. Many alleged parodies have been held to be copyrightinfringements-sometimes trademarkinfringementsinsteador as well and I shall
discuss parodies of trademarkedworks along with parodies of copyrightedones.
Economics can clarify the issues of copyright(and trademark)law presented by parodies. Buildingon earlierwork,2I offer an economic analysis that may help both to explain and to improve the legal treatmentof
parody. I argue that the copyrightexemption for parodiesis and should
be very narrow. In particular,it should not extend to cases in which the
parody does not attack the parodiedwork but ratheruses that work to
attack somethingelse. But to explain all this, it will be necessary first of
all to develop a clear idea of what a parody is and of what the various
* Judge, U.S. Court of Appeals for the Seventh Circuit; Senior Lecturer, University of
Chicago Law School. I thank William Landes for valuable discussion of the subject and
extremely helpful comments on previous drafts and Kazuhiko Sano for excellent research
assistance.
See, for example, Sheldon N. Light, Parody, Burlesque, and the Economic Rationale
for Copyright, 11 Conn. L. Rev. 615 (1979).
2 William M. Landes & Richard A. Posner, An Economic Analysis of Copyright Law, 18
J. Legal Stud. 329, 359-60 (1989); Richard A. Posner, Law and Literature: A Misunderstood
Relation 349-51 (1988).
[Journal of Legal Studies, vol. XXI (January 1992)]
? 1992 by The University of Chicago. All rights reserved. 0047-2530/92/2101-0009$01.50
67
68
THE JOURNAL OF LEGAL STUDIES
kinds of parody are. Here one is aided by discussions of parodyby literary theorists,3as well as by judicial discussions and commonexperience.
Parody is best understood in terms of one of its synonyms: it is a
"take off"-a take off on anotherwork or on a genre of works. It takes
characters,incidents, dialogue, or other aspects of the parodiedwork(s)
and moves on from there to create a new work. Generally there is an
incongruitybetween the borrowed and the new elements, as where the
parodistsets aboutto "graspthe essentials of the style of a given [serious]
authoror a school of authors, and then proceed to concoct an outlandish
episode which is expressed in that style."4 "[T]he highestkind of parody
may be defined as a humorous and aesthetically satisfying composition
in prose or verse, usually writtenwithout malice, in which, by means of
a rigidly controlled distortion, the most strikingpeculiaritiesof subject
matter and style of a literary work, an author, or a school or type of
writing, are exaggerated in such a way as to lead to an implicit value
judgmentof the original."5
So there is both a taking from a previous work and an injection of
creativity, large or small. Let us start with the taking,the most problematic aspect from a copyrightperspective. Often what is taken is none of
the copyrightedelements of the parodiedwork(s).This is especially likely
if what is being parodiedis not a single work but a writer's (or painter's,
or composer's) entire oeuvre-in short, his style-because style is not
copyrightable;or an entire genre, since genre (for example, the sonnet,
the Gothic novel, the musical comedy) is not copyrightableeither. So
Max Beerbohm's splendidparodiesof Henry James, such as "The Mote
in the MiddleDistance" and "The Guerdon,"would not be within range
of an infringementsuit. But neitheris a title copyrightable,or stock characters (for example, the hard-boiledprivate eye, the miser, the Latin
lover), or the standard plots (star-crossed lovers, and so forth), so a
parodist who took only these features from a copyrightedwork would
not be an infringereither.
The risk of infringementarises only when the parodist takes copyrighted elements of the parodied work. Arguablythis taking should be
deemed an infringementno matterhow great the parodist's creative in3 See, in particular, Linda Hutcheon, A Theory of Parody: The Teachings of TwentiethCentury Art Forms (1985); G. D. Kiremidjian, The Aesthetics of Parody, 28 J. Aesthetics
& Art Crit. 231 (1969); J. G. Riewald, Parody as Criticism, 50 Neophilologus 125 (1966);
Symposium on Parody, 13 S. Rev. 2 (1980). The extensive legal literature is well represented
by Richard A. Bernstein, Parody and Fair Use in Copyright Law, 31 Copyright L. Symp.
(ASCAP) 1 (1984).
4 Kiremidjian, supra note 3, at 235.
5 Riewald, supra note 3, at 128-29.
69
put. The combinationof copyrightedelements with fresh creative input

is simply a derivative work, and moderncopyrightlaw assigns the exclusive rightto make and sell derivativeworks to the owner of the copyright
on the originalwork. It does not matterhow much "better," or commercially more valuable, the derivative work is. Transactioncosts are minimized when all rights over the copyrightedwork are concentratedin a
single pair of hands.
So, primafacie, a parodythat uses copyrightedelements is an infringement: the parody is a derivativework and the copyrightholdertherefore
controls it. However, the fair use doctrine sometimespermitsthe appropriation of parts of a copyrightedwork, and we must consider whether
parody might, always or sometimes, be fair use.
The sense and, hence, scope of the fair use doctrine are most easily
understood in economic terms.6 A use is fair in these terms when the
costs of transactingwith the copyrightowner over permissionto use the
copyrightedwork would exceed the benefits of transacting.These benefits include not only (as mentioned) economizing on other transactions
but also, and more important,stimulatingthe productionof intellectual
propertyby enablingits creators to appropriateas privategain the social
value of their creation.
The book review is the simplest example of fair use. There are three
related reasons for thinking that a book reviewer should be allowed to
quote from the book without the author's (or other copyright holder's)
permission:
1. Most book reviews increase the sales of the book being reviewed,
so that imposingtransactioncosts on the reviewerwould confer negative
benefits on the author. Even unfavorablereviews stimulatesales, at least
when the alternative would be no review at all. Book reviews are free
advertising.
2. They are especially credible advertising, moreover, because they
are not controlled by the advertiser(that is, the publisherof the book).
The credibilityof book reviews, and hence theireffectiveness as advertising, would be underminedif a reviewer needed the author's permission
to quote from the book. Indeed, if book reviews were censored by book
authors, reviews would be no more credible a form of advertisingthan
ordinary paid advertising. Therefore, authors as a group would suffer
from a rejection of the privilege of fair use for book reviews even if an
occasional authorgained.
3. When a review does reduce the sales of a book, it does so not
6
Landes & Posner, supra note 2, at 357-61.
70
because it supplies the demandfor the book-rarely is a book review a

close substitute for the book-but because it points out flaws and so
provides valuableinformationwithoutunderminingthe rewardsfor creating worthwhileintellectual property. The harm to an author that comes
from exposing the weaknesses of his effort-from drawingattention to
the lack of value of the intellectualpropertyhe has created-is not the
kind of harm that copyright law, whether analyzed in economic or any
other terms, seeks to prevent. Of course, not all books that containerrors
are valueless; indeed, books can have great weaknesses yet still be socially valuable because of offsetting strengths. But such a book will not
be devastated by negative book reviews that stress its weaknesses. The
marketplacein ideas and opinionswill produceother reviews that emphasize its strengths.
This analysis of how the doctrine of fair use applies to book reviews
does not transpose easily to the parody setting. Points 1 and 2 do not
hold at all because parodies are generally not a method of acquainting
people with the characterof the parodiedwork. On the contrary, since
effective parodyrequiresthat the audiencehave some and often considerable familiaritywith the parodied work, works are rarely parodiedthat
are not already very well known, although the parody may introduce
some membersof its audienceto the originalworkfor the firsttime. Point
3 may hold, because parody can be an effective method of ridicule, and
ridiculeis a formof criticism.' But here three qualificationsare necessary.
First, and least, parodyis in generala limitedformof criticism,because
of its focus on idiosyncrasy. "[P]arodynaturallytends to be the watchdog of established forms, a correction of literaryextremes."8It "tends
to confine itself to 'writerswhose style and habitof thought, being more
markedand peculiar, was more capable of exaggerationand distortion.'
This tendency seriously restricts the scope of critical parody because it
seems to ignore the fact that the absence of any 'markedand peculiar'
style and habit of thought is a symptom of mediocrity rather than of
talent."' Beerbohm'ssplendidparodiesof HenryJamesare criticismonly
in philistine eyes; to the lover of James's late novels they are goodnaturedevocations, reminders,of the master's distinctive excellences.
Second, a parody, unlike the book review, may supply a part of the
demandfor the originalwork. The movie Abbottand Costello Meet Frankenstein, a parody of the earliermovies Frankenstein,Dracula, and The
Kiremidjian, supra note 3, at 234.
Riewald, supra note 3, at 132 (footnote omitted).
9 Id. at 133 (footnotes omitted). This is overstated. There is some parody of sheer
Dubliners, the Gerty MacDowell episode in Ulysses, and much of
mediocrity-Joyce's
dadaist and postmodernist art come to mind. But this is parody as criticism of a culture
rather than of a specific work, so there will rarely be any question of copyright infringement.
7
8
71
WolfMan, reproduces the principalcharactersand themes of the parodied works in a feature-lengthformat that the viewer might prefer to
seeing (or, more likely, seeing for a second or a third time) all three of
the originalworks. As in this example, virtuallyall parodiesare humorous
and many people may prefer a humorousto a serious version, especially
when the "serious" version is itself intended purely as entertainment
and is without moral or intellectualpretension. Some parodiesare erotic
versions of a nonerotic original. They may supply the demand for the
originalon the part of the segment of the populationthat likes its entertainmentspiced with sex.'o
Third, a parody does not always ridicule or otherwise criticize the
parodiedwork. On the contrary,it may use that work-treating it as the
standardof excellence-to disparagesomethingelse, as whereT. S. Eliot
in "The Waste Land" employs parodies of Shakespeare, Spenser, and
other classic authors to criticize the sordidness and spiritualemptiness
of modern life. In other words, the parodied work may be the weapon
rather than the target-in which event why should the owner of the
originalbe reluctantto license the parody?Or, as with Abbott and Costello Meet Frankenstein, and perhaps, as I suggested, with Beerbohm's
parodies of James, the parody may not be a work of criticism at all; its
only object may be to amuse.
The analysis to this point suggests the following limitations on the
applicationof the fair use doctrine to parodies.
First (and most radical), the doctrine should provide a defense to infringementonly if the parody uses the parodiedwork as a target rather
thanas a weapon or, once again, as in Abbottand CostelloMeet Frankenstein, simply as a resource to create a comic effect. There may of course
be problems both in distinguishingthese uses and of overlaps between
them.
Second, the parodist should not be allowed to take so large a fraction
(somehow computed)of the copyrightedfeatures of the originalwork as
to make the parody a substitute for that work."11
Otherwise, he could
10
This, rather than judicial prudery (as conjectured in Elliott M. Abramson, How Much
Copying under Copyright? Contradictions, Parodoxes, Inconsistencies, 61 Temp. L. Rev.
133, 172 (1988)), may explain why, as we shall see, the majority of the erotic parodies
challenged have been held to be infringing.
" Light, supra note 1, properly emphasizes the importance of the parody's substitutability for the original work, but his conception of the parodies that should be protected by the
fair use doctrine is too broad. "[A] work qualifies as a parody if it takes for humorous
purposes, and the humor depends, to some degree, on audience recognition of the work
from which material is taken. . . . [I]f the taking is for the purpose of humor or criticism,
and it makes some alteration in the original to that end, then it is a parody." Id. at 632,
634. Light places too much weight on the motives of the parodist; often they will be hopelessly mixed.
72
reproducean entire copyrightedwork with impunitysimplyby givingthe

characters funny names or having them speak in comical accents. By
doing this he would entice the silly or vulgarmembersof the audienceof
the originalwork-and they may be a substantialfractionof the potential
audience. This would be the literary equivalent of multiplyingone side
of an equation by - 1 or transposinga musical work written in one key
into a different key. The parodist should be entitled to take from the
originalno more than is necessary to make the parodyeffective. I admit
this is a vague criterion.
Third (a corollary of the first point), the fact that the parodistappropriates either a small relative or a small absolute numberof the copyrightedfeatures of the originalwork should not be relevantto fair use. It
is true that the less he takes, the less likely he is to be siphoningoff the
audience for the originalwork. But as in the law of larceny, so in the law
of copyright, there is (and should be) no privilegefor stealing small. The
less the parodist wants to take, the easier it should be for him to obtain
a license from the owner of the copyrighton the originalwork. Only if
the parodistis seeking to ridiculethe originalworkis a markettransaction
infeasible and an involuntarytakingthereforejustifiable;and-to repeat
point numbertwo-it is justifiableonly to the extent necessary to remind
the parodist'saudience of the parodiedwork-a criterionindependentof
the relativeor absolute amountof the originalworktakenby the parodist.
If the parodistwere permittedto steal more than he needed, then, even
if the amountof the originalwork thathe took was small(albeitmorethan
he needed to take), there mightbe an excessive allocationof resourcesto
the creation of parodies, since in alternativeactivities the parodistwould
have to pay for all his inputs. It is true that once information,including
the information(broadly defined) that we call intellectual property, is
produced, the social cost of using it is zero. But this means that intellectual propertythat is sold at a positive price may be underutilizedfrom a
social standpoint. If all but one form of intellectualproperty is priced,
dumpingthe remainingform into the public domain,where it can be used
without being paid for, may cause the priced forms to be even more
underutilizedfrom a social standpoint.Underutilizedand also underproduced, as potential buyers of this intellectualpropertyswitch to its free
competitor.
Four objections to my threefoldrecipefor fair-useparody(the parodied
work must be target not weapon, the amount taken from the original
must be the minimumamount necessary, and the relative or absolute
minutenessof the amounttaken will not redeemthe infringement)can be
anticipated.The firstis that, since effective parodyrequiresthatthe original work be known to the audience, the only works that will be parodied
73
are originalworks,12 implyingthat the copyrightholder will have reaped

his just rewardand should not be entitledto insist on a shareof the profits
of the parody, viewed as a derivative work. This objection ignores the
distinctionvital in economic analysis between the ex ante and the ex post
perspective. Viewed ex post a successful work of intellectualpropertya Broadwayhit, a best seller, a hit song-may appearto confer a windfall
gain on the creator. But, ex ante, the creatorfaces a distributionof possible outcomes, and if the uppertail of the distributionis cut off, the mean
of the distributionwill be lowered and the incentive to create intellectual
property reduced (unless the creator assigned a zero probabilityto outcomes in the uppertail). This also answers a second objection:that if the
parodiedwork was a flop and the parody is a success, the only creativity
that ought to be rewardedis that of the parodist.
The third objection, which has greatest force against my proposal to
exclude from the fair use doctrineall parodiesin which the parodiedwork
is a weapon, whether of social, political, or aesthetic criticism, rather
than a target, is that freedomof expressionwill be curtailedif the creation
of parodiesis burdenedby the costs of transactingwith and payingroyalties to copyrightholders. But, as we do not suppose that writers should
be allowed to steal paperand pencils in orderto reduce the cost of satire,
neither is there a compelling reason to subsidize social criticism by
allowing writers to use copyrightedmaterialswithout compensatingthe
copyrightholder. (Granted,the cases are not identical. Intellectualproperty is a public good. A pencil is not. If you take my pencil I cannot use
it, but if you take my intellectual property I can still use it-but my
incentive to create it will be diminishedif I cannot make you pay for it.)
Recall in this connection that it is possible to parody an author, a genre,
even an individualwork without takingany copyrightedmaterialsat all.
The point is not that parodies in which the parodiedwork is a weapon
ratherthan a target lack social value, which shouldin principlebe traded
off against any diminutionin the copyrightowner's revenues as a result
of the parody's siphoningof the audiencefor his work. The point is that
there is no obstructionto letting the marketmake the tradeoff. There is
an obstructionwhen the parodiedwork is a target of the parodist's criticism, for it may be in the private interest of the copyrightowner, but not
in the social interest, to suppresscriticismof the work. It is doubtfulthat
this problemwould be fully solved without an exemptionfrom copyright
protection even if the parodist could transformthe social value of his
12 Stated otherwise, if the parodied work is obscure, the cost of effective parody will be
higher because the parodist will not be able to "free ride" on the audience's knowledge of
the parodied work.
74
work as criticism into private value and thereforecompensatethe copyright owner for the diminutionin the latter's revenues as a result of the
criticism. The social product is diminishedif persons are able to exact
compensationfrom truthfulcritics of their failings, for such a right reduces the incentive to produce truth.
Last, the general argumentagainst broad copyrightprotection13--that
its benefits in increasingthe rewardsto intellectualcreativity are offset
by its costs in raising the price that authors must pay for an essential
input into their work, namely the work of previous authors-may seem
to argue for a broad fair use privilegefor parody, a uniquely derivative
form of intellectualproperty.The argumentagainstis that the more narrowly copyright protection is defined-and earlier mention of the noncopyrightabilityof titles, stock characters, standardplots, styles, and
genres should remindthat, quite apartfrom the time limit on copyrights,
copyright protection is rather narrowlydefined already-the less need
there is for a special privilegefor parodists.
The essential distinctionbetween a book review and a parody should
now be clear. The former has to "steal" from the copyrightedwork and
thus (but for the defense of fair use) infringe copyright because it is
introducingthe work to its audience. The latter presupposes the audience's acquaintancewith the work and thereforethe need to steal is much
less.
The parodyingof trademarksis a rich source of litigationand presents
issues analyticallysimilarthough not identicalto those presentedby the
parodyingof copyrightedworks. Two types of trademarkparody must
be distinguished.In one, the parodist is himself a seller of products or
services (other than intellectualproperty),and here the dangeris of confusion as to source. For example, if a fast-foodchainoffers a "McBagel,"
some customers may think that it is doing so underlicense from McDonald's. If, however, a seller of tee shirts with humorouslegends-a form
of intellectual property-stencils on the shirts "I Like Cocaine" in a
style reminiscentof Coca-Cola'sadvertisingslogan,few if any consumers
will think that the Coca-Colacompany is the produceror licensor of the
shirts. This is a trademarkparodyof the second kind, where, with source
confusion not an issue, the analysis is parallelto that of copyrightparodies.
Parallelin economic terms-not necessarily in legal ones. For trademarklaw does not protect trademarksas intellectualproperty,that is, as
13
Stressed in Landes & Posner, supra note 2; and in Posner, supra note 2, at 343-48.
75
independentcreative works, but only as productor service identifiers.14

However, a doctrine of trademark law (technically, of state unfaircompetition law) that has no counterpartin the copyrightfield, that of
"dilution" of the trademarkowner's "good will," mightgive the CocaCola company some relief in the case just put. The idea is thatthe reputation built up by Coca-Cola may be impairedby the association of its
trademarkswith shoddy or sleazy activities, such as the trafficin illegal
drugs. The idea can be given an economic form. A trademarkseeks to
economize on informationcosts by providinga compact, memorable,and
unambiguousidentifier of a product or service. The economy is less
when, because the trademarkhas other associations, a person seeing it
must thinkfor a momentbefore recognizingit as the markof the product
or service. There is an analogy to the point that languagepurists make
when they object that using "disinterested"as a synonym for "uninterested" blurs the originalmeaningof disinterested(which is "impartial").
Might a similar notion, lacking though it does any official standingin
copyright law, explain the cases in which erotic or obscene parodies
are held to be copyright infringements?The notion would be that the
association of, say, Mickey Mouse with sex would blur the image of
childish innocence that Walt Disney sought to create for his animated
cartooncharacters.Against this it can be arguedthat creatorsof intellectual property should not be allowed to control the public image of their
propertyby forbiddingothers to suggest variantimages of it.15The argument seems decisive, when we consider that the applicationof the concept of dilution to copyrightedworks would imply a rightof action even
if the parodistdid not take any of the copyrightedelements of the original
work: suppose someone made a movie called Bambibut the centralcharacter was a prostitute ratherthan a fawn. This points up a difference in
the appropriatetreatmentof copyrightand trademarkparodiesunderthe
doctrine of fair use.
The Coca-Cola example suggests an argument that, paradoxically,
would, if accepted, grant a broaderdefense of fair use to off-color and
14 This is not quite true. Trademarks are sometimes printed on articles of clothing to
enhance the value of the clothing, and when that is done the trademark is a form of intellectual property rather than a source identifier: no one supposes that a shirt with the Coca-Cola
logos stenciled on it is manufactured by the Coca-Cola company.
"5This, by the way, is an objection to the doctrine of moral rights, which allows a creator
of intellectual property to forbid the mutilation of his work even after he has parted with
the copyright. The mutilation may be a criticism. Perhaps the saliency of freedom of expression in our legal traditions explains the reluctance of American judges and legislators to
receive this Continental doctrine into American law.
76
otherwise disreputablecopyright and trademarkparodies than to decorous ones. Grantedthat a shirt stamped "I Like Cocaine" or an obscene
version of Walt Disney's cartoons would be a derivative work of the
originaltrademarkedor copyrightedwork, it is a derivativework that the
owner of the original could not himself exploit directly or indirectly,
because of the ill will that would accrue to him from the respectable
segment of society. The work can be developed, and its social benefits
(for in an economic analysis the preferences of the vulgar count in the
calculation of social welfare along with the preferences of the refined)
thus realized, only if the trademarkor copyrightowner is forbidden to
control disreputablederivative works. For only then can they be developed without offsetting costs to that owner (if they were not fully offsetting, he would license the derivative works). The objections to the
proposalincludethe difficultyof defining"disreputable"for this purpose
and the fact that allowingfree use of copyrightedworks for disreputable
parodies would subsidize those parodies at the expense of others. But
the subsidy might be appropriateto offset the disincentiveof the creator
of the originalwork to produce this type of derivativework.
The real objection to allowing the erotic parody to invoke fair use is
different. It is, as mentionedearlier, that erotic parodiesfill a part of the
demand for the parodied work itself and thus reduce the copyright
holder's revenues on sales of the originalwork and not just of derivative
works.
II.
Let us see whetherthe distinctionssuggestedby economic analysis are
mirroredin the cases. A complete answerwould requiretrudgingthrough
the cases one by one, and althoughthere are remarkablyfew reported
cases-I can find only fifty-nine, after eliminatingduplication(the same
case in different proceduralstages, or multiple suits to enjoin the same
parody)"6-each involves a different pair of parodying and parodied
works, and many have been discussed in detail elsewhere.1 I shall content myself with a few generalobservations. First, all the reportedcases
involve popular rather than high culture, even though there is an enormous body of high-browparody."8One reason is that high-browparody
rarelyinfringesthe copyrighton the parodiedwork even primafacie (that
16 A list of the cases is available from me upon request.
17
For example in Bernstein, supra note 3.
"8 See, for example, Dwight Macdonald ed., Parodies: An Anthology from Chaucer to
Beerbohm-and
After (1960).
77
is, without regard to the privilege of fair use). The reason is that the
works parodied-whether a work of music, of art, or more commonlyof
literature--usually are rich in identifiable stylistic characteristics that
can, without infringement,be taken in order to remindthe readerof the
original;for remember that style is not copyrightable.Another reason
high-browparody rarely infringesis that, unlike low-brow parody, very
often it really does criticize the original:high-browaudiencesbeing more
interested in issues of tastes and standardsthan popularaudiences are.19
Still anotherreason is that a high-browparodyrarelyreplacesthe demand
for the original.The clearest example is parodiesof novels. Few parodies
are long, because the comic exaggerationthat is the essential technique
of parody gets tiresome fairly quickly; hence the parody of a novel will
invariablybe too short to replace the original(there is an analogy to the
book review). Finally, when high-browparody uses an originalwork as
a weapon ratherthan as a target, often the originalis a work in the public
domain, and the parodist's point is precisely the decline in standards
since some Golden Age of refinement:so it would not have suited T. S.
Eliot's purposes in "The Waste Land" to quote works recent enough for
copyrightto have subsisted in them.
The reported cases are divided almost equally between copyrightand
trademarkcases: thirty and thirty-four,respectively.20 In both groups,
the (alleged) infringerwins about half the cases.21Erotic or pornographic
parodiesare found in six of the copyrightcases andthreeof the trademark
cases, with the copyrightor trademarkowner winningin five of the nine.
Of particularinterest is the breakdownbetween cases in which the parodied work is a target and cases in which it is a weapon to attack or
criticize other things (or perhaps just an effort to create a humorous
19 A low-brow exception is Mad Comics' parody of the television series M.A.S.H., discussed in Ziva Ben-Porat, Method in MADness: Notes on the Structure of Parody, Based
on MAD TV Satires, 1 Poetics Today 245 (1979). More common is the parody of the
Icelandic sagas in the quondam television series Monty Python's Flying Circus. Few members of the television audience have heard of the Icelandic sagas, much less read any of
them. To the audience, there is no parody of a literary work--just a madcap satire of
Scandinavian stolidity and bleakness.
20 The sum exceeds
fifty-nine because some cases involve charges of both copyright and
trademark infringement.
21 The copyright owner won in sixteen out of the thirty copyright cases, the trademark
owner in seventeen out of the thirty-four trademark cases. That in litigation between private
parties (as opposed to cases in which the government is a party) the plaintiff will win about
half the cases is predicted, on economic grounds, in George L. Priest & Benjamin Klein,
The Selection of Disputes for Litigation, 13 J. Legal Stud. 1 (1984). In speaking of the
"copyright owner" or "trademark owner," I mean of course the owner of the copyright
or trademark on the parodied work.
78
work). The heavy preponderanceof both the copyrightandthe trademark

cases is in the target category: for the copyright cases the figures are
twenty-threeand seven, for the trademarkcases thirty-twoand three, so
for all together fifty-five and ten. The explanationfor the imbalancebetween target and weapon cases may be, as suggestedearlier, that a market transaction is feasible in the latter but not the former, permittinga
sharper definition of property rights and therefore reducing the uncertainty that begets litigation. The defense of fair use, which qualifiesthe
copyright or trademarkowner's property right, has, I have argued, no
properplace in a weapon case. Therefore,his propertyrightis clearer-cut
and there should be less litigationover it.

When Is Parody Fair Use

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When Is Parody Fair Use

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University of Chicago Law School

University of Chicago Press

WHEN IS PARODY FAIR USE?

THE JOURNAL OF LEGAL STUDIES

WHEN IS PARODY FAIR USE?

put. The combinationof copyrightedelements with fresh creative input

Landes & Posner, supra note 2, at 357-61.

THE JOURNAL OF LEGAL STUDIES

because it supplies the demandfor the book-rarely is a book review a

WHEN IS PARODY FAIR USE?

THE JOURNAL OF LEGAL STUDIES

reproducean entire copyrightedwork with impunitysimplyby givingthe

WHEN IS PARODY FAIR USE?

are originalworks,12 implyingthat the copyrightholder will have reaped

THE JOURNAL OF LEGAL STUDIES

WHEN IS PARODY FAIR USE?

independentcreative works, but only as productor service identifiers.14

THE JOURNAL OF LEGAL STUDIES

For example in Bernstein, supra note 3.

WHEN IS PARODY FAIR USE?

THE JOURNAL OF LEGAL STUDIES

work). The heavy preponderanceof both the copyrightandthe trademark

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