What is the parody fair use defense to copyright infringement?

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What is the parody fair use defense to copyright infringement?

Copyright law grants the creators of original artistic works exclusive rights for a period of time.  The owner of a copyright can prevent other people from copying, distributing or otherwise using the copyrighted work.  Copyright owners enjoy significant exclusive rights to their copyrighted works, but the rights granted by copyright law do have limitations.  The primary limit to the rights granted by a copyright is fair use.  Fair use is  a defense to copyright infringement.  When a person is accused of copyright infringement, they can claim that their use of a copyrighted work is not infringement because it is a fair use.

When determining whether a use is a fair use defense to copyright infringement a court reviews four factors.  Those factors are:

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.

A recent example of a case which involved the parody fair use defense is Matthew Lombardo and Who’s Holiday LLC v. Dr. Seuss Enterprises, L.P. No. 1:16-cv-09974-AKH (S.D.N.Y. Sept. 15, 2017).  In that case Lombardo created a theatrical play which was based on a copyrighted book titled How the Grinch Stole Christmas!, owned by Seuss.  The book is a popular children’s book in the United States.  Lombardo’s play took the the popular children’s story and added adult themes to it.  Seuss sent Lombardo a cease and deist letter claiming that Lombardo’s pay infringed on Suess’s copyright.  Lombardo sued Seuss asking the court for a declaratory judgment that Lombardo’s use of material from Seuss’s book was a fair use and not copyright infringement.  The court stated that fair use could be resolved by conducting a side-by-side comparison of the two works.

In the courts opinion, the court reviewed each of the four fair use factors.

  1. the purpose and character of the use – The court found that Lombardo’s play was a parody because it subverted the expectations of the genre of books to which Seuss’s book belonged.  Because the play was a parody it was transformative and therefore, the fact that the play was a commercial use was not significant.
  2. the nature of the copyrighted work – the court found that the nature of the book  was intended to be protected by copyright, but in the case of parody the second factor has little significance.
  3. the amount and substantiality of the use – that court found that the play’s use of material from the book was not excessive in relation to the parodic purpose of the copying.
  4. the effect of the use upon the potential market – the court found that the book is intended for children and the play is intended for adults, therefore the play’s effect on the market for the book was minimal.

The court found that Lombardo’s use of material from Seuss’s copyrighted book was a parody and was fair use.  The court held that Lombardo’s play did not infringe on Seuss’s book and granted summary judgement in favor of Lombardo.

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