Is it Parody or Copyright Infringement?
Recent events have prompted me to think about the difference between parody and copyright infringement, and where the fine line is between them – especially in the fuzzy world of the Internet and its microcosm, YouTube.
The event I’m referring to was KnowledgeTree’s clever parody of the Old Spice Superbowl ad, “The Man Your Man Could Smell Like,” featuring a handsome specimen with the great throwaway line “I’m on a horse.” Our parody replaced his soundtrack with an altered script that compared KnowledgeTree to a shared drive with the final line “I’m open source.”
Unfortunately, after about 7,000 views on YouTube, the video was removed because of a complaint lodged by Procter and Gamble about copyright infringement.
As I pondered this, my attention was drawn to the rather tastelessly funny “Hitler Reacts” parodies on YouTube. This extensive series of parodies (there must be at least 50 of them) riff on a scene from the 2004 movie “Downfall” where Hitler is being informed by his top brass that all is lost, and he proceeds to rant furiously in German.
The parodies all follow the same basic theme – Hitler is being told something he doesn’t want to hear – he’s been banned from Xbox Live, Usain Bolt has broken the world record, a Harry Potter movie is delayed – and he reacts violently in subtitles.
The KnowledgeTree parody followed the same basic premise: use an existing bit of footage and change the text. Yet, Hitler parodies get millions of hits and remain active, while our video gets removed based on one complaint from P&G.
Parody is loosely defined as “imitation,” often for comedic effect. According to Publaw:
A parody exists when one imitates a serious piece of work, such as literature, music or artwork, for a humorous or satirical effect.
A parody, because it is a method of criticism, must inevitably make use of another creative work. This inherently creates a conflict between the creator of the work that is being parodied (as no one likes to be criticized, made fun of or ridiculed) and the creator of the parody. It is also highly unlikely that a copyright owner will grant permission or a license to a parodist to use their copyright protected work in creating a parody.
So the very act of parody inevitably requires an infringement of sorts to take place. The real issue remaining and the one that has not yet been satisfactorily settled by the courts, is what constitutes fair use versus copyright infringement?
The Fair Use Doctrine recognizes that the copyright act of 1909 can be circumvented in some situations. According to the book “Major Principles of Media Law” by Wayne Overbeck:
To decide if a given use of a copyrighted work is fair use, the Copyright Act [of 1976] says these four factors must be considered:
- The purpose and character of the use, including whether it is for-profit or for a non-profit, educational purpose;
- The nature of the copyrighted work;
- The percentage of the total work that is used;
- The effect the use will have on the value or profit-making potential of the original work.
Granted, the KnowledgeTree video spoof didn’t have great educational value, but neither did its Old Spice progenitor. The nature of the copyrighted work was clever marketing, but hardly of enduring societal value. OK, so we used about 90% of the work (all the video, none of the audio). But I hardly think that a humorous video for document management software would put a dent in the market for body wash!
Someone might inevitably point out that our spoof was intended for commercial and for-profit purposes. But as I researched this post, it became clear that plenty of parodists have profited from their parodies – notably, 2 Live Crew and their creative reuse of Roy Orbison’s “Pretty Woman,” and the author Alice Randall for her book “The Wind Done Gone.”
My only consolation here is that greater legal minds than mine are wrestling with what constitutes copyright infringement, often on a case by case basis.
Meanwhile, the Internet has challenged the very notion of copyright protection, and there is a whole generation or two out there whose concept of copyright is…fluid. That doesn’t mean that there should be no protection for intellectual property, but clearly the target is moving at Internet speed and a lot faster than the legal system’s ability to respond.
In the meantime, maybe Hitler needs to react to copyright law.