US Introduces New Copyright Exemptions
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Using copyright material for parody and satire
May 2009
This information is for general guidance only; it is not legal advice.
Meaning of "parody" and "satire"
The terms “parody” and “satire” are not defined in the Copyright Act and have not yet been considered by Australian courts, but it is likely that a court would look at dictionary definitions of the words to work out what they mean. The Macquarie Dictionary includes the following definitions:“Parody”:
1. a humorous or satirical imitation of a serious piece of literature or writing. 2. the kind of literary composition represented by such imitations. 3. a burlesque imitation of a musical composition. 4. a poor imitation; a travesty.
“Burlesque” (used as an adjective):
involving ludicrous or debasing treatment of a serious subject.
“Satire”:
1. the use of irony, sarcasm, ridicule, etc in exposing, denouncing, or deriding vice, folly etc. 2. a literary composition, in verse or prose, in which vices, abuses, follies etc are held up to scorn, derision, or ridicule. 3. the species of literature constituted by such composition.A parody is an imitation of a work, and may include parts of the original. In some cases, a parody may not be effective unless parts of the original are included. It seems that the purpose of a true parody is to make some comment on the imitated work or on its creator.
The purpose of satire, on the other hand, is to draw attention to characteristics or actions – such as vice or folly – by using certain forms of expression – such as irony, sarcasm and ridicule. It seems that both elements are required: the object to which attention is drawn (vice or folly etc) and the manner in which it is done (irony, ridicule etc). It is not clear, for example, that a work which uses irony or ridicule about something other than something like vice or folly would be satire.
Creator's right to take legal action for "derogatory treatment" of a work (moral rights)
The parody/satire exceptions do not directly affect a creator’s right to take legal action if his or her work is treated in a derogatory way. However, in many cases the use of a copyright work for parodic purposes may be defensible as “reasonable” under the moral rights provisions.It is not so clear that use of a copyright work for satiric purposes would be as likely to be “reasonable”. This is because, unlike parody, the object of satire is generally not the copyright material itself or its creator(s). The copyright material used may enhance a work that has a satirical purpose, but is unlikely to be necessary for the satirical purpose.
Meaning of "fair"
There are no guidelines in the Copyright Act to help determine whether a use is "fair". The following factors may be relevant:- how much of the copyright material is used;
- the context in which the parody or satire is used; and
- whether or not the copyright owner generally licenses such uses.