Fair use of a copyrighted work is the reproduction of a work for purposes such as criticism, comment, news reporting, teaching, scholarship, or research. The doctrine of fair use, which limits exclusive rights, was developed through a number of court decisions over the years and has been codified in 17 USC §107 of the copyright law.
When determining whether use of the copyrighted work is indeed fair use, the following factors are to be considered: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. See 17 USC § 107. These factors apply to both published and unpublished copyrighted work.
There are many nuances of the law to be considered in determining whether your intended use is “fair use” or infringement. The prudent thing to do is to consult your Copyright Attorney before publishing any work that contains copyrighted material. We are located in Pasadena, California, not far from Downtown Los Angeles.
A parody is fair use of a copyrighted work when it is a humorous form of social commentary and literary criticism in which one work imitates another. Although a parody falls under “use of a copyrighted work for the purpose of criticism or comment” as provided under 17 USC §107, the determination of whether the work qualifies as a parody depends on the current case law. There is no steadfast set of factors to be considered. As with all gray areas of law, it is important to consult your Copyright Attorney before you publish a work you believe to be a parody. Famous works are often the subject of parodies because of their mass appeal. Famous is synonymous with wealth, or at least financial backing, so it would not be wise to infringe the rights of someone who has the means to defend their rights through litigation.
The following examples are from real-world cases:
PARODY: Making fun of the famous photograph of a naked pregnant Demi Moore, taken by Annie Leibovitz for Vanity Fair, by placing the superimposed head of Leslie Nielsen on the body of a naked pregnant woman, using the same lighting and body positioning as the famous photograph, was a parody and therefore was ruled as fair use. See Leibovitz v. Paramount Pictures Corp. 137 F.3d 109 (2d Cir. N.Y. 1998).
NOT A PARODY: A book authored in Dr. Seuss style to tell the story of the OJ Murders, “The Cat NOT in The Hat!” by Dr. Juice, was not a parody and therefore ruled as infringement. See Dr. Seuss Enterprises, L.P. v. Penguin books USA, Inc., 109 F.3d 1394 (9th Cir. 1997).