Is it parody if the point is not to make fun of the original?

Little, Brown is publishing “Goodnight Bush,” an unauthorized parody of the 1947 children’s bedtime classic “Goodnight Moon,” written by Margaret Wise Brown and illustrated by Clement Hurd: The cover of “Goodnight Bush” looks almost exactly like “Goodnight Moon — green and orange, with an image of a window and fireplace — and uses a similar rhyme scheme. But there the thematic similarities end.

The authors, Erich Origen and Gan Golan, set their story in “a situation room.” There is no bunny snuggling into bed, but rather George W. Bush, grinning and wearing a “Mission Accomplished” flight suit. Instead of three little bears sitting on chairs, there are “war profiteers giving three cheers.”
Subsequent pages tell of “A grand old party to war in a rush/And a quiet Dick Cheney whispering hush.” The vice president is illustrated seated in a rocking chair — with a shotgun in his lap and bunny slippers on his feet. . . .

The publisher of “Goodnight Bush” is counting on the fair use doctrine, which allows limited amounts of copyrighted material to be used without permission. “Parody as fair use is a developing area of the law,” said Pamela Golinski, an entertainment lawyer in New York, “and as a result, whether a given parody merits the shield of the fair use doctrine is a complex question.”

Little, Brown may have some difficulty in sustaining its fair use defense in light Dr. Seuss Enterprises, L.P. v. Penguin Books USA, Inc., 109 F.3d 1394 (9th Cir. 1997), in which the U.S. Court of Appeals for the Ninth Circuit held that the re-telling of the facts of the O.J. Simpson murder trial in the style and rhythms of Dr. Seuss's The Cat in the Hat was not fair use. The court concluded the book was a satire, not a parody, because the book did not poke fun at or ridicule Dr. Seuss. Instead, it merely used the Dr. Seuss characters and style to tell the story of the murder.

Readers of this blog will not be surprised to know the parody/satire distinction seems a tenuous one. Every parody makes a point independent of its ridicule of the original, and every satire requires recognition of the original to accomplish it's artistic intent. Do the copyright holders to The Cat in the Hat own its metrical scheme?

Parody, Satire, Transformative Use, and Derivative Works

Available here is a discussion regarding the distinctions courts have attempted to draw between parody and satire in fair use cases. The discussion is excerpted from Andrew S. Long, Mashed up Videos and Broken Down Copyright: Changing Copyright to Promote the First Amendment Values of Transformative Video, 60 Okla. L. Rev. 317, 335-559 (Summer 2007).

Blanch v. Koons: fair use of copyrighted material in an artistic, “collage” setting

From Fair Use News:

On October 25^th, 2006, in Blanch v. Koons (pdf)[, 467 F.3d 244 (2d Cir. 2006),] the U.S. Court of Appeals of the Second Circuit ruled on an important case dealing with the fair use of copyrighted material in an artistic, “collage” setting, affirming that artist Jeff Koons’ incorporation of a photograph into a collage painting was fair use.

Jeff Koons, an “appropriation artist“, created a collage entitled “Niagara” which depicts four pairs of women’s legs with the feet pointing downwards superimposed over images of “confections … with a grassy field and Niagara Falls in the background.” In his collage, one of the sets of legs in the painting was originally part of a photograph taken by a professional fashion and portrait photographer, and published in Allure magazine in 2000. Koons described his work as using popular images for commentary on the “social and aesthetic consequences of mass media.” The work was commissioned by Deutsche Bank and the Guggenheim Museum.

In ruling that Koons’s use of the legs from Blanch’s copyrighted picture constituted fair use, the Second Circuit went through a detailed explanation of the four-factor fair use test: the purpose and character of use; the nature of the copyrighted work; the amount and substantiality of the portion used; and the effects on the actual or potential market for the work or its derivatives.

Most importantly within the “purpose and character” factor, the court analyzed the transformative nature of Koons’s work. Courts will not “find a transformative use when the defendant has done no more than find a new way to exploit the creative virtues of the original work.” However, in this case, “Niagara” passes the transformative test “almost perfectly” because Koons changed the original copyrighted picture’s “colors, the background against which it is portrayed, the medium, the size of the objects pictured, their details.” Also, and “crucially,” Koons’s painting had an “entirely different purpose and meaning – as part of a massive painting commissioned for exhibition in a German art-gallery space.”

The transformative nature of Koon’s work dwarfed other issues, such as the commercial nature of the work and any bad faith allegations against Koons. Indeed, the court even minimized the parodic justification. The court did address the confusing and oft-criticized distinction between parody and satire (“parody needs to mimic an original to make its point, and so has some claim to use the creation of its victim’s … imagination, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing.”) before stating that “[t]he question is whether Koons had a genuine creative rationale for borrowing Blanch’s image, rather than using it merely to get attention or to avoid the drudgery in working up something fresh.”

The remaining factors used by courts in these cases—dealing with the nature of the copyrighted work, the amount and substantiality taken, and the effect on the market—all also weighed in Koons’ favor or were deemed unimportant in this case.

Further information on the subject matter of this case:

Law.com article the case.

Blog posting with snapshots of both pieces of art

Earlier Koons lawsuit (he lost this one) String of Puppies

Satire, parody, fair use, or what?

Satire, parody, fair use, or what?