Does My Parody Qualify as Fair Use?

If you’ve ever tuned in to an installment ofSouth ParkIf you’ve ever watched a comedy sketch or listened to a track by “Weird Al Yankovic,” you’re familiar with parodies. Many artists have made their names by humorously imitating others’ copyrighted material. You might have wondered, “Is this allowed?” This article explores when a parody qualifies as fair use and when it crosses the line.

Section 107 of the Copyright Act establishes the legal framework for fair use. This doctrine serves as an affirmative defense against claims of copyright infringement for certain unauthorized uses. Among the examples outlined in Section 107 are applications of copyrighted materials “for purposes such as criticism [or] comment.”

Both parody and satire rely on humor to communicate ideas, yet they have distinct objectives. Parody mimics a specific creator’s approach, intentionally amplifying elements for amusement. Satire employs wit to critique broader societal issues, especially those related to political matters.

While parody and satire both involve critique and commentary, only parody can qualify as fair use. The Supreme Court clarified this distinction inCampbell v. Acuff-Rose Music, Inc.,that “[p]arody must imitate an original to convey its message, thereby justifying its use of the creative work belonging to its target (or targets), while satire operates independently and thus needs a rationale for borrowing in the first place.”

While parodies are often viewed as falling under fair use, not all attempts are treated the same. To qualify as fair use, every individual parody must be evaluated based on the four-factor test established in Section 107. These factors include the following:

• The first factor is the intent and nature of the usage. This element evaluates if the purpose is commercial or non-commercial, such as for educational nonprofits, and whether the use is “transformative”—meaning it introduces new expression, meaning, or perspective to the original work.
• Second, the characteristics of the copyrighted material, which examines whether it is creative or factual in nature and whether it has already been published.
• Third, the extent or significance of the new use compared to the original work.
• Fourth, the extent to which the new work impacts the market for the original creation. This element evaluates both the existing market harm caused by the new work and any potential future harm it may create.

In 2012, Brownmark Films, a creative venture specializing in viral videos and artistic projects, filed a lawsuit against Comedy Partners, the producers of the animated TV seriesSouth ParkThe court evaluated Comedy Partners’ animated adaptation of a video by applying the four-factor fair use test, concluding it was a “clear example of fair use.” Regarding the first factor, the court determined that Comedy Partners’ work was “undoubtedly a parody” and transformative, as it borrowed only the necessary dialogue and visual elements from the original to evoke the viral clip. This was done to “satirize the modern obsession with consuming online video content” during the episode.

Regarding factor four and the market for Brownmark’s video, the court determined there was no proof of market harm. On the contrary, the probable impact of Comedy Partners’ video would, ironically, only boost revenue, as viewers might be inclined to search for the original clip after watching the episode. Given this interpretation of parody and transformative use, the court ruled that Comedy Partners’ utilization of Brownmark’s video qualified as fair use.

In 2016, ComicMix prepared to release the bookOh, the Destinations You’ll Courageously Explore!(“Boldly“), blending the iconic components of Dr. Seuss’s beloved story,Oh, the Places You’ll Venture!(“Go!“) alongside the sci-fi franchiseStar TrekComicMix extensively borrowed elements fromGo!by mirroring the book’s visual aesthetic and narrative framework and, through a public Kickstarter campaign, announced thatBoldlywas a justified application ofGo!.

In 2017, the copyright holder of Dr. Seuss’s works, Dr. Seuss Enterprises,Go!Dr. Seuss Enterprises filed a lawsuit against ComicMix in the Southern District of California, alleging copyright infringement. The legal action claimed that the defendants violated intellectual property rights.Boldlywas far from being a parody. Rather, the book was seen as a “mash-up,” blendingGo!’s approach and structure withStar Trekutilizing tropes for commercial gain. Nevertheless,Boldlywas transformative enough as every scene was depicted from aStar Trekprospective, as numerous Seussian-like characters are swapped out for those dressed inStar Trekequipment and functionalities.

Despite discoveringBoldlywas groundbreaking, the fourth element strongly supported Dr. Seuss Enterprises. The court observed that in assessing the market for possible derivative works, it “encompasses solely those that original creators typically produce or authorize others to produce.” This definition covered mash-up books, such asBoldlyThe court noted that while Dr. Seuss Enterprises had not previously authorized mash-ups similar in nature to those in question,BoldlyThe book quickly dominated the potential market. As a result, the court ruled that ComicMix’s fair use argument was unsuccessful.

ComicMix challenged the District Court’s ruling, and by 2020, the dispute reached the 9th Circuit.^thCircuit. Once more,BoldlyThe ruling determined that the use did not qualify as fair. Similar to the District Court’s decision, the 9th Circuit…^thCircuit reasoned thatBoldlywas not a parody. Nevertheless, the court concluded Boldlywas not transformative as it failed to analyze or provide insight onGo!. Boldlymerely imitatedGo!and “mirrored”Go!’s intent.” Through meticulous duplication of “the precise makeup, the specific organization of visual elements, and the color samples from iconic artworks,”Boldlycopied the core essence ofGo!.

Additionally, the court noted thatBoldly“deliberately focused and designed to take advantage of the identical graduation market as”Go!This targeting would replaceGo!The court determined that ’s current and future market for derivative creations was significantly impacted. It ruled that every consideration strongly opposed fair use, givenBoldlywas “a commercially driven creation that did not alter the original but instead exploited and encroached upon”Go!“potential market for ’s.”

• “Parody must imitate an original work to convey its message, giving it some right to utilize the creative output of its target (or targets). In contrast, satire operates independently and therefore needs a rationale for borrowing in the first place.”
• Not every parody achieves the same standard and must still be evaluated under the four-factor fair use test.
• For a work to genuinely qualify as “transformative,” it must, along with other criteria, introduce fresh elements to the source material or offer an alternative perspective.

Want to understand fair use better and distinguish between parody and satire? Explore theWhat Defines Fair Use and Why Is Parody Protected Under Fair Use While Satire Is Not?portions ofFAQs.