Polar Opposites, Parody Labels, & the Fair Use Exception: Revisiting a Past Note

Shaudie Fassih · Editorial on Robyn M. Flegal’s Student Note

Originally published in Volume 21, Issue 1 of the Journal of Intellectual Property Law, University of Georgia Law graduate Robyn M. Flegal’s student note, “Diametrically Opposing Viewpoints: Why Polar Opposites Should Not Attract the Parody Label Under the Fair Use Exception to Copyright Infringement,” addressed the dichotomy between criticism and parody as contemplated by the Copyright Clause in the wake of Northland Family Planning Clinic, Inc. v. Center for Bio-Ethical Reform, in which the United States District Court for the Central District of California held that “a pro-life organization’s tendentious and disturbingly graphic use of a family planning clinic’s counseling video was a protected parody under the fair use exception to copyright infringement,” despite the fact that the video made no attempt at humor as the term parody usually would suggest. Flegal suggests that use of copyrighted material as criticism to illuminate or explain a diametrically opposing viewpoint would be a more appropriate defense to copyright infringement in a scenario like the one contemplated in Northland Family Planning Clinic.

According to Flegal, courts have failed to provide a consistent framework for analyzing whether diametrically opposing viewpoints should be scrutinized as parody or as criticism when assessing fair use defenses to copyright infringement. The fair use doctrine permits the unlicensed use of copyright-protected works for “for a limited and ‘transformative’ purpose, such as to comment upon, criticize, or parody a copyrighted work.” Courts and legislatures have been deliberately broad in explaining what may be considered fair unlicensed use of copyrighted material and what may not be considered fair unlicensed use of copyrighted material in order to promote free speech and expression. In terms of parody, courts have allowed for parodists to use relatively extensive portions of the copyrighted material in order to “‘conjure up'” the original. Courts allow critics to use a smaller volume of copyrighted material in their work, generally accepting as much reproduction of copyrighted material as is necessary to for the critic to achieve their purposes.

Flegal asserts that the court’s choice to engage in a fair use analysis centered around the parodic use of copyrighted material (1) denies the original author’s the right to creativity and (2) creates room for error during the court’s analysis. To minimize the unfair advantage given to critics for simply having opposing viewpoints from the original author, courts should adopt more specific guidelines for assessing fair use defenses. In particular, the question of whether or not critics used humorous content when propagating a diametrically opposed point of view should be at the crux of a court’s fair use analysis.

As parody has a rather vague definition within the scope of the fair use doctrine, and as parodists are allowed to use a relatively large portion of copyrighted material in order to adequately represent the merits and failings of the original work, Flegal fears that infringers can take advantage of the courts’ historic unwillingness to delve into what’s humorous and what isn’t by claiming a parodic use of material so long as the infringers utilize the material to characterize a diametrically opposed point of view. By implementing a requirement that protected parodic uses of copyrighted material must be humorous, courts will then be able to more accurately assess the validity critical uses of copyrighted material.

This blog post was written by Shaudie Fassih, and edited by Amanda Hoefer and Brady Hughes, 2019

In addition to Ms. Flegal’s article, the author and editors consulted and quoted the Stanford University Libraries’ guide, “What is Fair Use?” and its contributions from Richard Stim and his book, “Getting Permission.” 

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