The four factors of the fair-use test are written into law at 17 U.S.C. § 107. They include the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the use, and the effect of the use on the market for the original work.
“Dilution by blurring” and “dilution by tarnishment,” issues in trademark infringement, are described by statute at subsection (c) of 22 U.S.C. § 1125. These statutes codify parody as a fair use defense.
The Digital Millennium Copyright Act describes the procedure for copyright holders to get unauthorized uses of their work taken down from websites. Even if you’ve received notice from an Internet service provider that your work has been taken down, you have the right to request that it be put back up by giving counter notice as written into law at subsections (g)(2)(C) and (g)(3) of 17 U.S.C. § 512.
If a copyright holder has issued a takedown notice for no good reason, she or he may be liable for misrepresentation under subsection (f) of 17 U.S.C. 512:
The Supreme Court held that, even though 2 Live Crew’s parody of the Roy Orbison song “Oh, Pretty Woman” was recorded and distributed for a commercial purpose, it could still be protected as fair use.
Since this decision, parody has been a strong argument under the first factor of the fair use test (the purpose and character of the use). However, the Court also cautioned that you couldn’t just call your work “parody” and then copy freely; your work must meet the definition of parody. Most importantly, your work should use the earlier work to create something original that sheds new light on the earlier work.
Even though 2 Live Crew had borrowed the “heart” of the song in both the musical elements and lyrics (which is important to consider in determining the amount and substantiality of the portion used in relation to the copyrighted work as a whole, under the third factor of the fair use test), it was allowed to do so because it was necessary to use the heart of the original to communicate an effective parody.
To prove copyright infringement, a copyright holder has to be able to show “substantial similarity” between the original work and the copy. There had been some dispute over whether the sampling of just a few second of the song could meet the test, but the court decided in Jarvis v. A & M Records that the sampling of short segments of a song could meet the substantial similarity test.
The court presiding over this case ruled that any sampling of an audio recording, no matter how small or unrecognizable in relation to the original, creates a substantially similar copy. This ruling (which is only binding in the federal Sixth Circuit (Kentucky, Michigan, Ohio, and Tennessee) for now, though other courts could choose to follow it) eliminates any defense that may have existed under the “de minimus” test for the copying of short audio segments.
The court presiding over this case affirmed that, at least in the federal Ninth Circuit, the de minimus test still applies to musical compositions. The Beastie Boys sampled notes from a recording after obtaining a license only for the recording and not for the underlying composition; normally, you would be expected to get a license for both in order to sample without infringing a copyright. However, the court said that the use of the notes as written in the composition was too insubstantial, and that the novelty of the composition as compared to the recorded performance was too insignificant, for the Beastie Boys to be sued by the composer. The Ninth Circuit covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, the U.S. Territory of Guam, and the Commonwealth of the Northern Mariana Islands.
In this case, the court rejected a fair-use defense after an artist created a satirical sculpture meant to replicate a photograph.
Jeff Koons purchased a postcard at a museum gift shop of a man and woman holding several German shepherd puppies. He thought the image was a good fit for his series on banality, so he removed the copyright notice from the picture and then sent it to a workshop in Europe and gave very explicit instructions for the workshop to create a wooden sculpture of a man and woman holding puppies just like in the photograph.
The original photographer sued after the sculpture went on display, and Jeff Koons claimed the work was a parody. Despite the change in medium from photography to wood, the court disagreed with the fair use claim because there was no discernable parody of the photograph itself, just a general satire of this genre of photography. The court also worried that this sculpture, or photographs of the sculpture, would unfairly substitute for sales of the original postcard.
Jeff Koons came back in front of the same court many years later, but this time the court ruled in his favor, finding that a particular use of a photograph in a collage was fair use.
Koons appropriated a picture of a woman’s legs and feet, clad in Gucci sandals, from a fashion magazine and used them, along with a number of other legs, as part of a collage critiquing the marketing of sex and food. The original photographer sued. Even though this piece was a satire of marketing and society more generally and not a parody of the specific photo, the court agreed with Koons’s argument that this piece of art was transformative in both presentation and message compared to the original. The court also found no reason to believe that this collage was interfering with the market to license the original photo.
In this widely publicized case involving the YouTube video of a baby dancing to “Let’s Go Crazy” by Prince, the court ruled that a copyright owner must consider possible fair-use defenses in its initial decision to issue a takedown notice (although the case itself is not fully resolved). A copyright owner’s failure to do so may open it up not only to a counter notice requiring the service provider to restore the content, but also to a suit for misrepresentation under the DMCA.
Comic book artist Kieron Dwyer took liberties with the Starbucks logo, exposing the mermaid’s breasts, giving her a belly-button ring, and crowning her with a dollar sign, among other changes. The words on the logo were changed to read “Consumer Whore,” and the artist thought he had a good First Amendment, parody defense to his work. Starbucks sued him and effectively silenced him under trademark law. While the court stated in a preliminary order that the art was probably protected as speech, it banned the sale of any item containing the parody and banned any display of the parody on the artist's website because of the potential of the image to dilute Starbucks’ trademark by tarnishing it. The case settled before it made it all the way to trial, so no binding ruling was made on how to balance First Amendment rights against trademark dilution.
Dwyer may have had a decent case, since the anti-dilution law grants at least some leeway to “identifying and parodying, criticizing, or commenting” upon famous trademarks, but this case also demonstrates that many artists find it easier to settle out of court than fight against a trademark or copyright owner who has greater legal resources. You can read more about the dispute here.