According to Merriam-Webster Dictionary online, parody is “a literary or musical work in which the style of an author or work is closely imitated for comic effect or in ridicule.” Comment and criticism in the form of parody sometimes is protected as fair use because the purpose and character standard. Television shows such as Saturday Night Live and The Simpsons often borrow from copyrighted material in order to produce satirical scenes for the benefit of entertaining mass audiences. These satirical shows often rely on fair use’s protection of parody and satire.
Parody is not always protected as fair use though. One of the interesting cases that Michael Carroll brings up in “Fixing Fair Use” is the subjective nature of parody as seen in Mark Napier’s website Distorted Barbie. Napier used this website as a vehicle to make a cultural statement on the American icon of Barbie. Napier used digital images to establish his own alternative views of Barbies, including X-Files Barbie and Possessed Barbie. Mattel brought a suit against Napier’s website for copyright infringement as part of the Digital Millennium Copyright’s Act notice-and-takedown process. Mattel submitted a notification to Napier’s website service to take down the material that directly related to Barbie.
Rather than go through an intense legal battle, Napier decided to further distort his digitized Alternative Barbies so that the relation to Mattel’s Barbie seemed unnoticeable. Originally, Napier’s Kate Moss Barbie looked like the image on the left. Currently, Napier’s website has the Kate Moss Barbie distorted as on the right.
On his website, Napier writes, “I created this site to explore the phenomenon of Barbie. Not Barbie as a toy or collectible, but Barbie as a symbol that a culture has created, absorbed, shaped, and been shaped by…[Mattel’s] attack is grounded less in profit than on preserving the fiction of Barbie.” In his claims, Napier explains his use of distorted Barbie images to make his own meaning from such a culturally rich icon. By doing so, Napier explores the meaning and use of culture through well-known symbols. Michael Carroll says that the comment and criticism aspect of fair use “is less reliable for those who talk about culture.” Rather than just ridicule Barbie, Napier actually makes new meaning through his own images. Therefore, Napier’s use of Barbie as a means to think and write about culture borders on the shaky and subjective ground that is fair use.
The question remains about how can we go beyond just simple parody and actually make statements about culture without infringing on existing copyrights. How can fair use be expanded to include Napier’s Alternative Barbies as a way to start thinking beyond culturally accepted views of American icons?
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You actually bring up a really interesting point. Fair use only protects “criticism, comment, news reporting, teaching, scholarship, or research.” No where in Section 107 does it say anything about “cultural statements.” Carroll would say that “cultural statements” in and of themselves are quite, and i’ll use his language, uncertain. Nevertheless, should it not be included with section 107?
We should remember the sentiment on which the original copyright laws were enacted; copyright laws were created to foster cultural knowledge/growth and creativity for the benefit of the public (Dallon article from last week focused on this). With this in mind, why should not “cultural statements” be included in fair use? Such statements represent the epitome of cultural exchange and foster thinking, creativity, and imagination.
Then again, if we acknowledge that cultural statements are a form of fair use, this could really open a can of worms and do more harm than good. We would need some sort of standard (which I think is ultimately Carroll’s point)
Good question.
Well, I don’t think you would be able to include “cultural statements” into Fair Use without it then being absorbed into the First Amendment. After all, the “freedom of speech” given to us by the First Amendment has already expanded to “freedom of expression” that includes many non-speech activities, particularly cultural works. To include “cultural statements” in Section 107 would mean that many copyright infringement cases would include counter-claims for infringements on Free Speech rights and we might just end up with a truly IMPOSSIBLY tangled mess.
Then again, Free Speech is exactly what is being infringed upon here. By using copyright to control the non-commercial reproduction of a “Barbie” image, Mattel is essentially setting limits on free speech through claims of copyright infringement: you can’t ask “How does our world look like through the lens of Barbie?” Well, you’d probably be able to write about it, but that’s an ironic concession for something so visually important.
So, to answer your blog post’s question, I would say “don’t expand it, make it a Free Speech issue and give it protection under a much stronger standard.” A Fair Use doctrine that included cultural statements would be too broad. I think there is a solution somewhere in copyright to this problem, just not in Fair Use.
Interesting side note: this collection of Lego-renderings of famous photos is a very similar project to this one.
http://www.thedailybeast.com/blogs-and-stories/2009-08-27/classic-photography-in-lego/
I think we already HAVE made cultural statements without infringing on copyright. Isn’t that precisely what Napier as done? Matthew Rimmer, in his article about The Grey Album, notes a pivotal 1994 Supreme Court case (Campbell vs. Acuff-Rose Music Inc) which concludes “parody, like other comment or criticism, deserves the fair use protection” as it “has an obvious claim to transformative value” and can “provide social benefit” (45). By this description of the protection of parody under fair use, it seems as though Napier’s Barbies are PURELY for social commentary and benefit. I do not see how, when this Supreme Court case was about a rap song’s appropriation and parody of a Roy Orbison song, the Barbie case’s deeper social commentary would not be covered under fair use, either through its widely accepted defintion, or through support from this 1994 ruling.
“Television shows such as Saturday Night Live and The Simpsons often borrow from copyrighted material in order to produce satirical scenes for the benefit of entertaining mass audiences. These satirical shows often rely on fair use’s protection of parody and satire.”
Fair use may purport to protect “comment or criticism” but the courts have not held the doctrine to protect both “parody” as well as “satire.” The two terms are used interchangeably but they are defined differently according to the scope of their critique and their general purpose. Whereas parody mimics/imitates something for the purpose of critiquing that specific work/style/piece of art/etc, “satire” constitutes a broader critique of social norms or practices. Carroll explains how the Campbell v. Acuff-Rose Music, Inc. case established this “material distinction between parody and satire for fair use purposes” by creating a safe harbor for parody “when the target of the parody is the copyrighted work” itself (1109-1110). Hence The Wind Done Gone is more protected because it specifically criticizes Gone With The Wind; The Cat NOT In The Hat, on the other hand, mimics Dr. Seuss’s creative writing style to criticize the OJ Simpson trial (and not the original book itself).
Based on this precedent and parody-satire distinction, do you think Napier’s Distorted Barbie falls under parody or satire?
My general point: the complex distinction between parody and satire – and the fact that the former elicits greater protection than the latter – only reinforces Carroll’s emphasis on “uncertainty” in applying fair use standards.
Also, I found this website pretty helpful in distinguishing parody from satire (see the Colbert Report example of how a work can embody both parody and satire):
http://www.wisegeek.com/what-is-the-difference-between-a-parody-and-satire.htm
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