“Parody” is a technique used by artists in various forms of entertainment, from comedians to radio disc jockeys to authors. “Parody,” in the copyright sense, generally involves using someone else’s copyright-protected work and results in copyright infringement, absent a license for the use. In some cases, however, an infringer can successfully claim “fair use” as a defense. The contours of that defense are the subject of this article. This article confines itself to parody vs. satire and does not discuss the additional fair use defense—where the work is neither parody nor satire, but is still arguably transformative. Cf. Cariou v. Prince, 714 F.3d 694, 707 (2d Cir. 2013).

Largely as a result of the U.S. Supreme Court’s 1994 decision in Campbell v. Acuff-Rose Music, Inc., “parody” become viable as a fair use defense to copyright infringement. There, the Court held for the first time that parody used in a commercial context does not presumptively preclude fair use. Acuff-Rose, 510 U.S. 569, 570 (1994) (noting that commercial use is just one consideration in the four-part fair use analysis required under § 107 of the U.S. Copyright Act, 17 U.S.C. §§ 101 et seq.). The Court also distinguished a “parody” that could meet the fair use defense from a “satire” that could not. This article provides a brief history of the law prior to Acuff-Rose, a description of that decision, and a summary of the cases that have followed. This article is intended for attorneys involved in litigation-avoidance and litigation strategy.

Courts’ Analysis Pre-Acuff-Rose

Before the U.S. Supreme Court decided Acuff-Rose, courts failed to distinguish parody from satire, and often discussed the two as if they were the same. For example, in 1979 the Fifth Circuit Court of Appeals, in the process of analyzing a fair use parody defense, lumped parody and satire together, noting that “[n]ot all parodies and satires . . . are protected by fair use.” Dallas Cowboys Cheerleaders, Inc. v. Scoreboard Posters, Inc., 600 F.2d 1184, 1188 (5th Cir. 1979) (affirming preliminary injunction granted by lower court). There, the allegation of copyright infringement involved a poster put together by a group of former Dallas Cowboys cheerleaders who posed similarly to the cheerleaders in the official Dallas Cowboys Cheerleaders poster, but partially naked. Demonstrating the propensity to blend parody with satire at the time, the court described an example of “satire that fell short of fair use” as an impermissible satire “despite the social value of parody.” Scoreboard Posters, 600 F.2d at 1188 (citing Loew’s Inc. v. Columbia Broad. Sys., Inc., 131 F. Supp. 165 (S.D. Cal. 1955), aff’d sub nom, Benny v. Loew’s Inc., 239 F.2d 532 (9th Cir. 1956), aff’d, 356 U.S. 43 (1958)).

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