South Park & a Necessity Theory of Fair Use’s Parody/Satire Distinction
As those of you who have seen my guest posts so far can likely surmise, I consider it particularly important to focus on crucially important social issues that affect all of us, deeply and profoundly.
And so you can imagine my delight when the perfect opportunity presented itself. Just a couple weeks back, the U.S. District Court for the Western District of Wisconsin issued a decision in a copyright infringement matter pitting the creators of South Park against the owners of the copyright in the immortal viral video “What What (In the Butt)” (hereinafter, in the interest of both brevity and something like tact, “WWITB”).
The utter, fascinating bizarreness of WWITB itself strains my narrative capacities, so I’ll only suggest that you check out the three-minute video here, though probably not at work. While this video was enjoying its fifteen seconds of internet fame in 2007-08, an episode of the TV show South Park featured a minute-long (and unauthorized) variation of WWITB in which the character Butters Scotch performed an animated simulacrum of the song and video. The assignees of the rights in WWITB sued for infringement of their copyright in the work, and the district court granted the defendants’ motion to dismiss the complaint on the theory that their video was protected under the statutory affirmative fair use defense.
What makes Brownmark interesting is not that it was wrongly decided (quite the contrary–my sense is that it reached the right result). Nor is the case interesting because it took an atypical approach to analyzing the fair use issue. Rather, what’s interesting to me about Brownmark is that it’s very typical in its approach to fair use. The district judge formally marched through all four statutory fair use factors (as section 107 requires), but the analysis was driven almost entirely by transformativeness (part of the first-factor analysis, which has become along with the fourth factor almost conclusive of fair use issues, as some really good recent empirical work has shown), and the analysis of transformativeness in turn was driven almost entirely by the judge’s conclusion that the South Park clip was a parody (rather than a satire) of WWITB.
I say more about why I think the approach to fair use epitomized by Brownmark is flawed, and suggest a different way to locate parody/satire within the fair use skein, below the fold.
Courts considering fair use as an affirmative defense to copyright infringement are required to consider all four of the statutory factors outlined in sec. 107, though usually, one of two of these factors (factor one, purpose and character of the use; and factor four, effect of the use on current or future markets for the work) tend to dominate the analysis. Courts increasingly use as a touchstone of their factor one analysis whether the use is “transformative” of the work, following on an idea developed in an influential article by Judge Pierre Leval and elevated to the level of doctrine in the Supreme Court’s 1994 decision Campbell v. Acuff-Rose.
But invoking the idea of transformativeness merely relocates, rather than solves, the problem of fair use’s notorious murkiness. To that end, courts have seized upon an analytical tool introduced in Acuff-Rose as a means of determining what kinds of works are sufficiently transformative to warrant a finding of fair use (or, more accurately, to have the first factor weigh strongly in favor of fair use). This notion is that many defendants’ uses can be divided into parodies (which poke fun at the plaintiff’s work, as well as other social themes), and are more likely to be fair use; and satires (which use the plaintiff’s work merely as a vehicle for commenting on social issues, without commenting on the work itself), which are less likely to be fair use.
The foregoing is, I think, the way Justice Souter characterized the parody/satire distinction: as a factor that was relevant to, but not dispositive of, the question of transformativeness. But in the sixteen or so years following Acuff-Rose, courts (understandably wanting some kind of objective metric for analyzing the famously slippery fair use issue) appear to have transformed the notion of a suggested consideration into a rock-solid, and often apparently dispositive consideration.
Brownmark provides an example of this approach to fair use. The court begins with a detailed parody/satire analysis, and then pays formal lip service to other fair use considerations. The conclusion that the South Park clip parodied WWITB (a trickier factual issue, I think, than the court let on, and one that may not have deserved resolution at the pleadings stage) pretty clearly dominated the court’s consideration of the issue.
This raises a number of concerns. One relates to the coherence of the parody/satire dichotomy, which some writers have objected to as failing to reflect a meaningful distinction. (Don’t all uses inevitably and to some extent comment on the underlying work?) Another relates to judicial method, to the extent that what the Acuff-Rose Court intended to be one aspect of a multi-factor consideration has come to predominate and overdetermine fair use analyses.
But I want to focus on an aspect of the evolution of parody/satire within fair use, emblematized but by no means limited to Brownmark, that lies apart from these other well-aired issues: Whether parody/satire rightly deserves to be part of the first-factor transformativeness inquiry at all. The conventional understanding of the parody/satire distinction in this context is that parodies necessarily transform the underlying work substantially, while satires do not.
Nothing about this distinction works for me, because both parodies and satires seem to work transformative changes on the underlying work. For one thing, if we broadly understand transformativeness in terms of substantially changing the underlying work, then many satires achieve this end. The (very tasteless) Dr. Seuss-themed satire about the O.J. Simpson trial may not have been making a comment about the works of Dr. Seuss (as the 9th Cir. held in Dr. Seuss Enters. in 1997), but it doubtlessly transformed those works into a vehicle of dark social commentary rather than light children’s fare.
One might suggest that parodies deserve heightened fair use deference because they necessarily contribute more to social discourse, since they not only make a general social point but also say something about the underlying work. Here, though, I’m still not convinced about the validity of the underlying empirical assertion. A sophisticated satire might make an enormously insightful point about an important social issue, while a parody might, say, be nothing more than silly mockery of a derriere-themed viral video like WWITB. Here again, a use’s status as parody or satire doesn’t seem a relevant driver of whether it is transformative of an underlying work.
Many others have questioned the coherence of the parody/satire distinction, often suggesting that its incoherence warrants rejecting it as a part of fair use analysis. I want to suggest instead that the critique of parody/satire shows instead that it is misplaced in the fair use strain.
Parody/satire may not track well onto the idea of transformativeness, but I do think it tracks well onto the idea of necessity. Necessity is a familiar defense to property torts. In the context of trespass, for example, emergency can entitle yachters stranded on a stormy lake to tie up at a stranger’s dock without permission, on the theory that avoiding the loss of their lives is more important than respecting the owner’s negative liberty (remember Ploof v. Putnam?).
One theory of fair use leverages this idea of necessity. The notion is that we need fair use to create space for uses that would not be allowed were users expected to negotiate a license with owners. Consider film reviews: If unauthorized uses in the context of movie reviews were not permitted, critics would have to negotiate a license with the owners of film copyrights to pen reviews. The studios would likely not license negative reviews, meaning that reviews would lose all credibility (because they would all be positive). So fair use sustains the objectivity and distance that allows critical reviews of films to exist, to take just one example.
Applied to the parody/satire distinction, the notion of necessity has similar leverage. Parodies, which comment on the underlying work, require some kind of taking in order to make sense. You can’t parody a work without using it in some way. Satires, which seek only to comment on a broader social issue using the work as a vehicle, don’t require use of the work in order to make their point. The work is only one of various means to an expressive end. So law needs to protect parodies as fair uses more than satires, because if an owner refuses to license a satire, the satirist can use some other work to make their point; but if an owner refuses to license a parodist, the parody simply won’t happen. If the owners in the copyright in WWITB simply didn’t want their video commented on by South Park or anyone else (regardless of whether one buys the Brownmark court’s assertion that the South Park clip did amount to commentary on WWITB itself), they could shut down such commentary on the video, but South Park would remain free to lampoon the phenomenon of viral videos in other ways.
This idea of necessity is by no means alien to fair use analysis. One the contrary, it’s at least implied in one of the two less-important factors, factor three (amount and substantiality of the taking, which seems to get to whether the infringement was needed to achieve the end of the use). And Justice Souter’s opinion in Acuff-Rose spoke of parody/satire in the context of factor three as well as factor one. Hence my suggestion that the parody/satire not be scrapped entirely, but merely that it be reconceived by courts in a different, and more coherent part of the fair use analysis (and then, only as an aspect of this analysis rather than a dominant consideration).
Finally, it remains to ask, of course, why it matters that parody/satire belongs more rightly in one factor than another within the fair use skein. I think this is more than just a formal suggestion for how to organize the multi-factored fair use analysis for two reasons. First, if it’s right that the parody/satire distinction doesn’t relate much to transformativeness, then locating it in the context of that factor obscures the core question whether a use transforms the underlying work. The transformative effect of parodies is exaggerated, while the transformative effect of satires is understated. Removing parody/satire may lay bare the transformativeness inquiry rather than allowing it to be reduced to a simplistic, and possibly also irrelevant, dichotomy. Second, relocating parody/satire firmly within the factor-three analysis might provide more balance among the four fair use factors, pushing back against the current dominance of factors one and four, and vivifying the idea of necessity that is already immanent in the statute.