Re: obscure derivative works question

Bob Cumbow writes:
>>
>> snip
>> The reason parody is protected is not because it is amusing but
>> because it is critical comment. Non-humorous critical comment is
>> snip

Parody is "critical comment" only secondarily. Primarily, parody is close derivative work, and usually for commercial gain. I understand the arguments of the courts; my point is the arguments are unintelligent. Here is Judge James M. Carter, U.S. District Court, SoCal.:

"When the alleged infringing work is of the same character as the copyrighted work, viz., a serious work with a taking from another serious copyrighted work, then the line is drawn more strictly than when a farce or comedy or burlesque takes from a serious copyrighted work..."

Why is the line drawn more strictly? Because the court favors amusing derivative work, so Carter says above. All else being equal, a serious close derivative can be infringing where an amusing close derivative of the same material would be fair use. Again, shades of George Orwell.

Of course it's possible that in the details of case law this line between serious derivative work and burlesque derivative work has been shredded to hell and back. But the classical parody rulings appear (to me at least) to be unreasonable. My point is that absent the standard criteria for fair use, no close derivative should be non-infringing, burlesque or no burlesque. The key phrase here is "close-derivative". I am not discussing allusions, ideas, insubstantial taking, etc.

Dan Agin
Spectrum Press
specpress[_at_]earthlink.net

So the basis for the parody rulings is amusement, not "critical comment". Received on Fri Nov 15 1996 - 17:14:49 GMT