Last week, I wrote about a case involving How the Grinch Stole Christmas and a parody play that follows Cindy Loo Who later in life. Now a new post at the Trademark and Copyright Law blog reminded me of an important issue about fair use that I should address. That is, what is the difference between parody and satire?

People often think about parody and satire as almost the same thing, but legally speaking they are quite different. The Supreme Court looked at this difference in the copyright  context in the case Campbell v. Acuff Rose Music. Campbell deals with a comedic version of the Roy Orbison song, Oh Pretty Woman. In 1989, the infamous and influential rap group, 2 Live Crew, recorded a parody of Orbison’s song for their album As Clean as the Wanna Be, simply called Pretty Woman. In it, they copied parts of both the music and lyrics of the original.  So, Acuff Rose sued, claiming copyright infringement. 

In its decision, the Court drew a line between parody and satire. It wrote that “parody needs to mimic an original to make its point, and so has some claim to use the creation of its victim’s (or collective victims’) imagination, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing.” Moreover, parody must comment on the original in some way. Satire, on the other hand, does not. Instead, it’s commentary may be more general, or it may targeted at something other than the original work. 

Ultimately the Court found that Pretty Woman is, in fact, a fair use. Importantly, the Court held that parody is not presumptively fair use. Instead, you must conduct a fair use balancing testing every single time we look at whether a use is fair or not. 

Still, it’s probably fair to say that we’re more likely to find fair use with parodies than with satires. We can see this from how the Court defines the two terms. Parodies needs the originals; they can’t exist with the original works because the parody specifically uses and comments on them. In this, it furthers the purpose of copyright, to support the progress of the creative arts. Copyright wants to allow people to comment on works, and to build on them in ways that do not usurp the works. Parodies can exist in the market at the same time as the works they use. One does not merely use the other to exploit its popularity. 

Satires that use other works as their bases, on the other hand, do not need the originals to do their satire. The could conduct their commentary without the original, because that commentary don’t target the originals. In this, satires may look like they are trying to trade on the popularity of the original works, instead of going through the effort of creating wholly original works themselves. Copyright protects against people profiting off of the works of others. 

In the end, all fair use analyses are gray, and even the strongest case for fair use has things that weigh against it. Whatever the case, Who’s Holiday is still fair use.