Satire and Parody and the First Amendment

The relationship between satire, parody, and the First Amendment involves two different legal issues. First, can someone publicly attacked in a parody or satire silence the critic? Second, if the attack gains force by mimicking a well-known work, can the work’s copyright holder silence the mimic? The short answer to the first question is no, at least if the person attacked is a public figure. The leading case concerns a series of advertisements for Campari Liqueur in the format of interviews with famous persons about their ‘‘first times.’’ While raising sexual inferences, the pieces described only the celebrities’ first time drinking Campari. Jerry Falwell is a nationally known minister and spokesperson for the so-called ‘‘Moral Majority.’’ Hustler Magazine is a nationally circulated publication with content leaning strongly toward the sexually explicit. Labeling the item ‘‘ad parody—not to be taken seriously,’’ Hustler Magazine used the format of Campari’s first-time series for a piece in which Falwell allegedly described his ‘‘first time’’ as being an incestuous encounter with his mother in an outhouse. Falwell sued Hustler and obtained a judgment for $150,000 on the state tort claim of intentional infliction of emotional distress. The elements of this tort are (1) intentional or reckless conduct by the defendant, (2) which offends generally accepted standards of decency, and (3) causes severe emotional distress to the plaintiff. The United States Supreme Court reversed, Hustler Magazine v. Falwell. While accepting the legitimacy of the tort, the Court held that it could not be used to silence ‘‘[t]he sort of robust political debate encouraged by the First Amendment,’’ including the caustic work of ‘‘political cartoonists and satirists.’’

Turning to the second issue, American Copyright Law has always had an exception called ‘‘fair use.’’ This doctrine was first stated clearly in a case involving George Washington’s papers, Folsom v. Marsh. Without the fair use doctrine, copyright would be a government grant allowing an abridgment of free speech in violation of the First Amendment, Harper & Row Publishers v. Nation; Eldred v. Ashcroft. The current fair use doctrine is codified at Section 107, Title 17 of the United States Code and requires courts to consider multiple factors including:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; and

(2) the effect of the use upon the potential market for or value of the copyrighted work.

The first factor includes whether the second author is creating something beneficial to the public but which the first author is unlikely to allow, even if paid, for example, something criticizing or laughing at the first author’s work. The Supreme Court clarified this doctrine in 1994, Campbell v. Acuff-Rose Music. The rap group Two Live Crew recorded ‘‘Pretty Woman,’’ a raunchy take-off of the sentimental love song, ‘‘Oh, Pretty Woman’’ by Roy Orbison and William Dees. Despite being offered payment and credit, the copyright holder refused to give Two Live Crew permission. The Supreme Court said that the first fair use factor would be met if the Two Live Crew version was a parody, but not if it was a satire. The difference is that a parody makes fun of the underlying work, so it must reuse that work to exist. A satire laughs at society in general; therefore, it can exist without reusing someone else’s copyrighted work. The Court also clarified that parody (which helps the defendant) is more important in factor one than being a commercial use (which hurts the defendant). In addition, the Court said that factor four should not include the value of any works the copyright holder would not be inclined to allow, such as other parodies.

The parody/satire distinction has a chilling effect on free speech, because no one can be sure in advance how a court will decide. For example, a book about the O. J. Simpson trial using rhymes reminiscent of Dr. Seuss’ ‘‘The Cat in the Hat’’ was not a parody, Dr. Seuss v. Penguin Books. A novel telling the story of ‘‘Gone with the Wind’’ from the point of view of a slave was a parody, Suntrust Bank v. Houghton Mifflin. A series of photographs showing Barbie® dolls in suggestive poses with kitchen equipment was a parody, Mattel v. Walking Mountain Productions. Some of the pictures are posted at https://creativefreedomdefense.org/fc_1.htm.

If Campari Liqueur had sued Hustler Magazine for copyright infringement for its attack on Falwell, the fair use defense may not have protected Hustler.

MALLA POLLACK

References and Further Reading

• Kaplan, Benjamin. An Unhurried View of Copyright. New York: Columbia University Press, 1967.
• O’Neil, Robert M. The First Amendment and Civil Liability. Indiana University Press, 2001.
• Patry, William F. The Fair Use Privilege in Copyright Law. BNA, 1985.
• U.S. Copyright Office. In Answer to Your Query: Fair Use. (GPO 2004), available at https://www.copyright.gov/fls/fl102.pdf

Cases and Statutes Cited

• Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994)
• Dr. Seuss Enterprises, L.P. v. Penguin Books U.S.A., Inc., 109 F.3d 1394 (9th Cir. 1997)
• Eldred v. Ashcroft, 537 U.S. 186 (2001)
• Folsom v. Marsh, 9 F. Cas. 342 (No. 4,901) (CCDMass. 1841)
• Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985)
• Hustler Magazine v. Falwell, 485 U.S. 46 (1988)
• Mattel Inc. v. Walking Mountain Productions, 353 F.3d 792 (9th Cir. 2003)
• Sun Trust Bank v. Houghton Mifflin Co., 268 F.3d 1257 (11th Cir. 2001)

See also Eldred v. Ashcroft, 537 U.S. 186 (2001); Fair Use Doctrine and First Amendment; Falwell, Jerry; First Amendment and PACs; Freedom of Speech: Modern Period (1917–Present); Hustler Magazine v. Falwell, 485 U.S. 46 (1988); Intellectual Property and the First Amendment