Parody as a fair use of copyright on a freedom of speech perspective

Por: Diego Guzmán - LL.M

Parody is considered by courts in the United States as an expression of freedom of speech. It is also accepted by fair use doctrine as an exception to copyright infringements. In contrast, Colombian legislation limits freedom of speech by criminalizing defamation while the Copyright regime requires parody to be authorized by the author of the underlying work. The freedom of speech argument on parody, as reasoned by the United States courts, may be a guide to justify such exception in the Colombian Copyright regime.

Viernes, 4 de Junio de 2014 

Palabras Clave: freedom of speech, fair use, parody, copyright

Parody is considered by courts in the United States as an expression of freedom of speech. It is also accepted by fair use doctrine as an exception to copyright infringements. In contrast, Colombian legislation limits freedom of speech by criminalizing defamation while the Copyright regime requires parody to be authorized by the author of the underlying work. The freedom of speech argument on parody, as reasoned by the United States courts, may be a guide to justify such exception in the Colombian Copyright regime.

I. The Copyright-Freedom of Speech Dichotomy

Copyright’s critics frequently argue that granting an exclusive right over works restrains the freedom of speech and the sharing of knowledge, rights granted in the First Amendment[1]. The assumption is based on the fact that a copyright holder controls the dissemination of the work and is therefore capable of limiting the access to its content. That is an unfounded idea. Copyright Act 17 U.S.C. § 102(a) expresses that “[c]opyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression”. § 102(b) complements it by establishing that “[i]n no case does copyright protection for an original work of authorship extend to any idea, . . . concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.” [Emphasis added]. Copyright protection is granted for the fixated original work but not to the idea or fact on which the work was based. That idea is public domain and there is no exclusive right on it so it can be freely disseminated. What is limited is the work itself.

Speech is the transmission of an idea and that idea is what needs to be spread. Courts have clarified the distinction between Copyright and First Amendment with the notion of the idea-expression dichotomy. “[C]opyright’s idea/expression dichotomy ‘strike[s] a definitional balance between the First Amendment and the Copyright Act by permitting free communication of facts while still protecting an author’s expression.’” Harper & Row Publishers Inc. v. Nation Enterprises, 471 U.S. 539, 556, 105 S.Ct. 2218, 2229, 85 L.Ed.2d 588 (quoting the Second Circuit Court of Appeals, 723 F.2d at 203). The definition was important to determine the copyright infringement by Nation Enterprises for using unauthorized quotations from president Ford’s memoirs. The Supreme Court considered the quoted work to be different to the facts that it expressed and decided against Nation Enterprises. Copyright does not violate First Amendment because no exclusivity is given to facts or ideas. Exclusivity is granted to the form under which the facts are fixated. Nevertheless, the fair use doctrine contemplates situations where the fixated expression of speech may be used without being an infringement. This will be approached in another chapter.

II. Parody as an Expression of Freedom of Speech

Parody is a type of speech. The Supreme Court considered that “[t]he sort of robust political debate encouraged by the First Amendment is bound to produce speech that is critical of . . . those public figures who ‘. . . by reason of their fame, shape events in areas of concern to society at large.’ Associated Press v. Walker, decided with Curtis Publishing Co. v. Butts, 388 U. S. 130, 164 (1967) (Warren, C. J., concurring in result).” Hustler Magazine v. Falwell, 485 U.S. 46, 51, 108 S.Ct. 876, 882, 99 L.Ed.2d 41 (1988). This was a case regarding a parodic speech published by Hustler Magazine about a Falwell, a minister who became a public figure as an active commentator on politics and public affairs, in which a fictional interview described his sexual experience with his mother. Being Falwell a public figure he was bound to be subject of criticisms. Parody was considered a speech that criticizes an idea and therefore is protected under First Amendment.

For ruling in favor of Hustler Magazine the Court had to ponder that “[f]alse statements of fact are particularly valueless. . . .” Id. at 52. Then it wisely compared parody to caricatures which “[d]espite their sometimes caustic nature . . . graphic depictions and satirical cartoons have played a prominent role in public and political debate. . . . From the viewpoint of history it is clear that our political discourse would have been considerably poorer without them.” Id. at 54-5. Caricatures are frequently parodies of ideas or events. To consider parody an equivalent to political cartoons means that they both enrich the political discourse. On this behalf it is mandatory to protect such speech under First Amendment.

III. Fair Use Doctrine

The idea-expression dichotomy explains that copyrights are granted on the fixated expression but not on the idea. Harper & Row Publishers Inc. v. Nation Enterprises, at 588, described how the fixated expression of facts or ideas is protected from unauthorized uses even if the facts and ideas are public domain. But unauthorized parties can use works if it is considered a fair use.

Resolving an infringement case in which The Wall Street Transcript Corporation published abstracts of Wainwright’s financial research reports without its authorization, the Second Circuit reasoned that “the fair use doctrine offers a means of balancing the exclusive rights of a copyright holder with the public’s interest in dissemination of information affecting areas of universal concern, such as art, science and industry.” Wainwright Securities Inc. v. Wall Street Transcript Corp., 558 F.2d 91, 94 (2d Cir. 1977). As it was established in the previous chapter, parody comprehended as a form of criticism is of public interest due to how it excites political debate. Such quality includes it in the Copyright Act 17 U.S.C. § 107 as it considers criticism and comment examples of the type of unauthorized uses that do not constitute infringements.

Copyright Act 17 U.S.C. § 107 requires the unauthorized use to meet a four-part test for it to be considered fair. The second factor of the fair use analysis deals with the nature of the original work. It considers whether the underlying work belongs to the core of copyright protection or its periphery. It also guards First Amendment by observing if the work had already been published when it was used without authorization. See Harper & Row Publishers Inc. v. Nation Enterprises, at 588. The third factor considers the amount and substantiality taken from the original work. The fourth discusses the effect of the use of the secondary work in the market of the original work.

Parody is analyzed in the first of the factors. It requires determining whether the use of the original work by the alleged infringer had a commercial purpose and if the use was transformative of the underlying work. If the use is intended as a parody or a satire it is considered to be transformative.

IV. Parody in Fair Use

Copyright’s Case Law has narrow the definition of parody as “the use of some elements of a prior author’s composition to create a new one that, at least in part, comments on that author’s works. . . . Parody needs to mimic an original to make its point, and so has some claim to use the creation of its victim’s (or collective victims’) imagination” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 580-81, 114 S.Ct. 1164, 127 L.Ed.2d 500 (1994). This landmark case for fair use doctrine refers to a claim of Copyright infringement by the members of the band 2 Live Crew for composing and performing without authorization a parody song based on Roy Orbison’s song “Oh, Pretty Woman”. The Supreme Court ruled against fair use but made an important reasoning about parody.

The Supreme Court recognized that parody may “. . . use . . . some elements of a prior author’s composition to create a new one that, at least in part, comments on that author’s works.” Id. at 580-1. It is justified by the fact that “[w]hen parody takes aim at a particular original work, the parody must be able to “conjure up” at least enough of that original to make the object of its critical wit recognizable.” Id. at 588. The parodic speech will be considered a fair use if the criticism or comment it involves, constitutes a new speech and it refers to the underlying work.

In a later case, the Ninth Circuit decided against fair use and prohibited the publication and distribution of The Cat NOT in the Hat! A Parody by Dr. Juice, a parody about the O.J. Simpson double murder trial, as violating copyrights and trademarks owned by Dr. Seuss Enterprises, L.P.. The parody allegation was dismissed because “. . . the substance and content of The Cat in the Hat is not conjured up by the focus on the Brown-Goldman murders or the O.J. Simpson trial. Because there is no effort to create a transformative work with ‘new expression, meaning, or message,’ the infringing work’s commercial use further cuts against the fair use defense. Dr. Seuss Enterprises., L.P. v. Penguin Books USA, Inc., 924 F.Supp. 1559, 1574, S.D.Cal. 1394, 1401 (1996) (quoting Campbell v. Acuff-Rose Music, Inc. at 1171). “The Cat NOT in the Hat!” was considered to copy the essence of “The Cat in the Hat” but, because it criticized the O.J. Simpson trial instead of Dr. Seuss’s, it was not considered a parody under Campbell v. Acuff standards for fair use.

In a case following the facts in Hustler Magazine v. Falwell, 485 U.S. 46, 51, 108 S.Ct. 876, 882, 99 L.Ed.2d 41 (1988), Moral Majority, Inc. sent out a mailing signed by Falwell and directed to about 26,900 donors, in which a copy of the parody was included. This was displayed in other medias as well. The Ninth Circuit ruled in favor of fair use by considering “Section 107 expressly permits fair use for the purposes of criticism and comment. 17 U.S.C. § 107. . . . [A]n individual in rebutting a copyrighted work containing derogatory information about himself may copy such parts of the work as are necessary to permit understandable comment. . . . Therefore, the public interest in allowing an individual to defend himself against such derogatory personal attacks serves to rebut the presumption of unfairness.” Hustler Magazine, Inc. v. Moral Majority, Inc., 796 F.2d 1148, 1153, (9th Cir.1986). This decision included a new element of freedom of speech into parody as a fair use, the right to refute the speech by a using the copyrighted work. It gave the defendant the right to use the parody created by Hustler to communicate its own speech and contest its false statements.

From the Hustler, Campbell, and Dr. Seuss cases it can be concluded that parody is a speech of criticism and therefore is protected under First Amendment. Its public interest value is due to how it enriches political discourses. This could not be prohibited by Copyright and that justifies its inclusion in the fair use examples enunciated in 17 U.S.C. § 107. It even gives individuals and institutions the right to refute false statements by using the copyrighted work where such declarations were made.[2] Still, the Copyright Act was able to limit how parody is authorized to use other’s works by requiring it to create a new speech that comments on the underlying work.

V. Freedom of Speech Limitations in Colombia

Article 20 of the Political Constitution recognizes freedom of speech in Colombia as a fundamental right. It establishes that “[e]very person is guaranteed the freedom to express and disseminate their thoughts and opinions, to transmit and receive truthful and impartial information . . . These are free and have social responsibility. The right to rectification is guaranteed in terms of equity. There will be no censorship.” [Personal translation]. It is defined as the right to freely express and disseminate one’s thinking, opinions, information and ideas, but it is limited by social responsibility.

The Constitutional Court has identified the scope of protection considering that “. . . the constitutional freedom guards both socially accepted expressions and those considered unusual, different or alternative, including offensive, shocking, striking, obscene, scandalous, eccentric or simply contrary to the beliefs and majority positions expressions, since the constitutional freedom protects both the content’s expression and its tone. . .” Verdict C-442/11, Constitutional Court. [Emphasis added] [Personal translation]. According to this definition, a parody as the one in Hustler Magazine v. Falwell would be protected as it qualifies as an offensive and scandalous expression. Nonetheless, freedom of speech has the same importance of other fundamental rights as the right to “honor”[3] and reputation[4]. Freedom of speech has to be practiced in harmony with Article 95 of the Constitution, which establishes that every person “is bound by the Constitution and laws . . . [to] [r]espect others’ rights and not abuse their own”. [Personal translation]

Congress has used strict means to protect the right of honor and reputation from freedom of speech. Criminal Code, Article 220, typifies defamation as a felony. “The person who makes dishonorable accusations against another will be liable to imprisonment. . .” [Personal translation]. The Constitutional Court in the cited Verdict C-442/11 accepted the constitutionality of this Law. “[L]ibel and slander are intended to protect the rights of honor and reputation without distinguishing the active subject of the typified behavior. . . . [T]hese crimes . . . are intended to preserve the fundamental rights of any person resident in Colombia, to that extent they serve important purposes designed to preserve social peace and avoid private justice.” [Personal translation]. Then Hustler Magazine v. Falwell’s parodic speech would not be protected. Colombian legislation sanctions the false statement of an incestuous relation because it would be considered to affect a person’s honor and reputation. In addition, the reasoning by the Constitutional Court is explicit with respect to include any resident of Colombia, excluding the possibility of a different treatment for public figures.

VI. Parody as an Expression of Freedom of Speech in Colombia

The term parody is included in the Colombian Copyright Law referring to the right to transform or make derivative works. Law 23 of 1982, Article 15, “Any person who, with the express permission of the author or his successors in title, . . . parodies a work in the private domain shall be owner of the copyright in his . . . parody provided that, unless otherwise agreed, he may not disclose it to the public without mentioning the title of the original work and its author.” [Emphasis added]. It implies that a parody, as any other derivative work, requires the previous authorization of the copyright holder of the underlying work for copyrights to be granted to the author of the new one.

Colombian legislation does not define what a parody is. The Real Academia Española dictionary describes it as “imitación burlesca”[5] or humorous imitation. This definition has been accepted by doctrine which has considered “. . . parody is a humorous imitation of a serious work.[6] Parody as a form of criticism will only be acceptable if it makes a funny speech.

In 2012, the Colombian Congress proposed a Bill to include parody as an exception to Copyright infringement. Bill 001 of 2012 from the Chamber of Representatives, Article 4, intended to “. . . allow the transformation of disclosed artistic or literary works, provided it is done for purposes of parody and no risk of confusion with the original work is involved, the moral right of integrity of the author is not affected, nor causes unjustified harm to legitimate interests of the author or the normal exploitation of the original work is affected.” By proposing to remove the authorization for creating a parody when there is no risk of confusion with the underlying work the Hustler Magazine v. Falwell precedent could be considered as an example. “The jury found against respondent on his libel claim when it decided that the Hustler ad parody could not “reasonably be understood as describing actual facts about [respondent] or actual events in which [he] participated.” App. to Pet. for Cert. C1. ” Id. at 57 (quoting the Forth Circuit Court of Appeals, 797 F. 2d, at 1278). As it happened in that case, sometimes it is reasonable to acknowledge that a work is a parody of an initial work. This prevents a lay observer from confusing both works and therefore meets the proposed standard.

If such a bill was to be approved by Congress, freedom of speech through a parodic discourse could constitute a valid exception to Copyright. Still, the speech would be restricted by Copyright, requiring it to not be confused with the underlying work, and not to affect the author’s moral right to integrity and the economical exploitation of the work.

V. Conclusion

Parody is a mean of expression protected by freedom of speech and it is not limited by Copyright. The reason to protect it is based on how it enriches the political discourse. Copyright Act limits how parody authorizes the use of other’s works by requiring it to create a new speech that comments on the underlying work. On the other hand, Colombian Copyright regime currently requires parody to be authorized. In addition, criminalizing defamation limits the parodic speech. Still, freedom of speech could be promoted by creating an actual exception to Copyright based on parody and the precedent developed by courts in the United States should be considered as a relevant guide to justify it.

[1] U.S. Const. amend. I. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” [Emphasis added]

[2] The legislative history to section 107 states: “When a copyrighted work contains unfair, inaccurate, or derogatory information concerning an individual or institution, the individual or institution may copy and reproduce such parts of the work as are necessary to permit understandable comment on the statements made in the work.” House Report, supra at 73, U.S.Code Cong. & Admin.News 1976, p. 5687.

[3] Honor is considered by Article 2 of the Colombian Political Constitution as on of the “essential purposes of the State”. It is also defined as a fundamental right in Article 16.

[4] Reputation is defined as fundamental right in Article 15 of the Colombian Political Constitution.

[5] http://lema.rae.es/drae/?val=parodia

[6] LIPSZYC, Delia. Derecho de Autor y Derechos Conexos. Ediciones Unesco/ Cerlalc/Zavalía, 2006. at118.