Posters, rap songs, television programs, movies and novels are all examples of works in which their authors used copyrighted material without permission and, when challenged, claimed their works were protected by the “fair use” doctrine. With increasing frequency, the success or failure of this defense depends on whether the challenged work “parodies” the pre-existing work. Because the criteria used to answer this question are subject to interpretation by the fact-finder—e.g., does the new work “comment on” or “transform” the work being parodied?—in order to provide flexibility in balancing the competing interests of the First Amendment and the copyright owner’s ability to control his work, the parody fair use defense provides fertile ground for creative lawyering.
This article examines how courts have analyzed whether an asserted parody qualifies for fair use protection in the leading Supreme Court case of Campbell v. Acuff-Ross Music Inc.1 and its progeny, including the recently issued, currently on appeal, decision from the Southern District of New York in Salinger v. Colting,2 in which the parody fair use defense was rejected at the preliminary injunction stage.
