When Is Parody Fair Use
![handle is hein.journals/legstud21 and id is 73 raw text is: WHEN IS PARODY FAIR USE?
RICHARD A. POSNER*
I.
PARODY is imitation. And imitation, when it is of an expressive work
such as a novel or play or movie, is a taking. The parodist takes from,
or if you wish copies, parts or aspects of another expressive work. If
that work is copyrighted, why isn't the parodist an infringer? The usual
answer is that the use a parodist makes of the parodied, that is, of the
copied work, is a fair use within the meaning of copyright law and is
therefore lawful.' The answer does not always succeed in persuading
courts. Many alleged parodies have been held to be copyright infringe-
ments-sometimes trademark infringements instead or as well and I shall
discuss parodies of trademarked works along with parodies of copy-
righted ones.
Economics can clarify the issues of copyright (and trademark) law pre-
sented by parodies. Building on earlier work,2 I offer an economic analy-
sis that may help both to explain and to improve the legal treatment of
parody. I argue that the copyright exemption for parodies is and should
be very narrow. In particular, it should not extend to cases in which the
parody does not attack the parodied work but rather uses that work to
attack something else. But to explain all this, it will be necessary first of
all to develop a clear idea of what a parody is and of what the various
* Judge, U.S. Court of Appeals for the Seventh Circuit; Senior Lecturer, University of
Chicago Law School. I thank William Landes for valuable discussion of the subject and
extremely helpful comments on previous drafts and Kazuhiko Sano for excellent research
assistance.
See, for example, Sheldon N. Light, Parody, Burlesque, and the Economic Rationale
for Copyright, II Conn. L. Rev. 615 (1979).
2 William M. Landes & Richard A. Posner, An Economic Analysis of Copyright Law, 18
J. Legal Stud. 329, 359-60 (1989); Richard A. Posner, Law and Literature: A Misunderstood
Relation 349-51 (1988).
[Journal of Legal Studies, vol. XXI (January 1992)]
© 1992 by The University of Chicago. All rights reserved. 0047-2530/92/2101-0009$01.50](ViewImageLocal?handle=hein.journals/legstud21&div=8&collection=&method=preview&ext=.png&size=3)
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When Is Parody Fair Use
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