Reader Question: What legal issues should one be aware of when writing a parody?

An open forum question from Tony:

What legal stuff should a person be aware of when writing a parody? For example, do you have to change characters’ names or not?

Are there any legal hoops a person must jump through before including a parody-version of a popular copyrighted song in a movie?

This helpful response from Mike in comments:

Tony,

Though this is not legal advice, I did a secondary specialization on IP law while in law school. There are unfortunately no bright-line rules on parody as far as “you can do exactly this but not this.” A parody is fair use if it passes the four-point balancing test in 17 USC 107. This is terrible, subjective law because you don’t know if you’ve crossed the line until you lose a lawsuit, and even if you win, you lose a ton of money! To increase the odds of successful fair use, most parodists (such as Weird Al Yankovic) get the permission of their targets, and parodize relatively faithfully to the original work in the sense that they aren’t just ripping it to shreds but are instead having humorous fun with its tropes.

Make sure you’re actually writing parody and not satire, though, as satire is NOT covered under the parody fair use laws. If you plan to write a parody of Lord of the Rings that pokes fun at LOTR and fantasy in general, you’re likely to be okay… but if you plan to write a satire of LOTR that allegorizes the expansion of Mordor to the Bush Administration, you’d better just get a license from Wingnut/New Line before you even start, because you’re treading dangerous ground.

Again, not legal advice. And I’m not a practicing attorney at this time.

My brother is a lawyer and I’ve talked with him about this precise issue and Mike has done a great job in laying out some key issues in his response. 

To reiterate two keys points: (1) “Make sure you’re actually writing parody and not satire.” Here is a comparison of definitions:

Parody: A literary or artistic work that imitates the characteristic style of an author or a work for comic effect or ridicule.

Satire: A literary work in which human vice or folly is attacked through irony, derision, or wit.

(2) “…parodize relatively faithfully to the original work in the sense that they aren’t just ripping it to shreds but are instead having humorous fun with its tropes.”

The closer what you write is a caricature of the original, the safer you are.

In the past, I’ve mentioned Mark Litwak, who is an entertainment lawyer. I don’ t know him and this should not be considered a recommendation. However his website has a lot of information that he has generously posted for free. You might check there to see if he’s posted anything re parody.

Thanks again, Mike, for your response!

Comment Archive