Re: T-shirt resale

On 02/08/99, Larry Weiss <pgw[_at_]idt.net> wrote:
>
> The Supreme Court made quite clear in Campbell v. Acuff-Rose that
> "parody" must make a "comment or criticism" about the work being
> parodied. Justice Souter was careful to distinguish it from satire,
> which can use the copyrighted work as part of a comment or criticism
> or someone or something else. The latter may not meet the first
> standard for fair use.

I must respectfully disagree. Although the Court did distinguish what it called "parody" from what it called "satire," it did NOT hold that satire could not qualify as a fair use under the first factor. The language quoted in Greg Ikonen's post leans in that direction, but it was significantly qualified in footnote 14, where the Court stated:

   "By contrast, where there is little or no risk of market substitution,    ... taking parodic aim at an original is a less critical factor in    the analysis, and looser forms of parody may be found to be a fair    use, as may satire with lesser justification for the borrowing than    would otherwise be required." (emphasis added).

Only Justice Kennedy (in his concurring opinion) would have gone further and denied all protection to a "satire" with no [apparent] element of parody. Significantly, no other Justice joined in his concurrence. That is one reason why I find the Ninth Circuit's reliance on his narrower view, and its disregard of footnote 14, problematic.

Tyler T. Ochoa
Associate Professor
Whittier Law School
<tochoa[_at_]law.whittier.edu> Received on Tue Feb 09 1999 - 23:23:52 GMT