Parody or Piracy: The Protective Scope of the Fair Use Defense to Copyright Infringement Actions Regarding Parodies
![handle is hein.journals/cjla12 and id is 241 raw text is: Parody or Piracy: The Protective Scope of the Fair
Use Defense to Copyright Infringement Actions
Regarding Parodies
by MICHAEL A. CHAGARES*
INTRODUCTION
Parodies are artistic compositions which mimic and ridicule the
thought and style of an original work.' The parodist strives for the
twin goals of amusing and enlightening an audience.' The artist cre-
ating the original work will normally be discontented by the close
reproduction of the work, especially if the reproduction contradicts
the positive public image of the original.' In response to originating
artists' desires and the general policy of encouraging artistic work,
courts and legislatures have created protections for original
works-for example, by copyright laws. This Article will examine
the historical conflict between the parodist and original artist, outline
judicial and legislative approaches to the conflict and suggest a reso-
lution wherein courts would determine whether a parody satisfies the
market demand for the original work in deciding whether a parody
of a copyrighted work amounts to a piracy.
I. The Nature and Importance of Parody
Parody is an art form which inherently depends upon the copying
of another work.8 Specifically, for a parody to be effective, the audi-
* Clerk, The Honorable Morton I. Greenberg, United States Court of Appeals for the
Third Circuit. J.D. 1987, Seton Hall University School of Law. B.A. 1984, Gettysburg Col-
lege. Copyright © Michael A. Chagares 1988.
A previous version of this Article won First Prize in the Nathan Burkan Memorial Essay
Competition (sponsored by ASCAP) at the Seton Hall University School of Law.
1. See Webster's Seventh New Collegiate Dictionary 613 (1971).
2. Goetsch, Parody as Free Speech: The Replacement of the Fair Use Doctrine by First
Amendment Protection, 3 W. New Eng. L. Rev. 39, 41 (1980).
3. See infra notes 24-27 and accompanying text (discussing requirements of copyright in-
fringement actions).
4. Artists' original works may also be protected by trademark laws and unfair competition
actions. This article will focus solely upon protections afforded artists through the federal
copyright laws.
5. See Parodies of the Works of English & American Authors I (W. Hamilton ed. 1884)
(Parody is a form of [art which] owes its very existence to the work it caricatures .
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Parody or Piracy: The Protective Scope of the Fair Use Defense to Copyright Infringement Actions Regarding Parodies
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