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- Title
COPYRIGHT LAW AND ITS PARODY DEFENSE: MULTIPLE LEGAL PERSPECTIVES.
- Authors
AMY LAI
- Abstract
In the United States, whether a disputed work qualifies as a parody is critical, if not determinative, to the success of a fair use defense in copyright lawsuits. How can different schools of legal thought contribute to copyright law and its fair use doctrine, particularly its contentious parody exception? By drawing upon different legal theories, this article argues that courts, in determining whether new creative works that build upon existing works constitute fair use, should focus heavily on the possible harm that the new works would bring to owners, and the copyright system of financial incentives as compared to their potential social benefits. Part I will offer an overview of the American copyright regime by discussing the Copyright Act of 1976 and the Supreme Court's application of the fair use doctrine, especially its definition of parody and its dichotomization of parody and satire. Because Lockean natural rights informed the Framers' understanding of intellectual property law, and courts have a long history of using natural law justifications in intellectual property cases, Part II will examine the nature of copyright through the lenses of natural law theories to discover the inherent conflict between copyright and free speech as a basic liberty. This will pave the way for Part III, which, by drawing upon relational feminism as well as other feminist theories, will substitute the idea of the "relational author" for the isolated, individuated, and proprietary author on which the current copyright regime is premised. By arguing that authors are social creatures who write from within vast networks of pre-existing texts, it will call for the recognition and embrace of creative transformations of these pre-existing works as original expressions of authorship. Part IV will turn to the potential of law and economics in reforming the copyright regime so that it can fully accommodate the "relational author" and his/her right to free speech. Although intuitive cost-benefit analysis, rather than efficiency principles, has facilitated judicial decision-making in fair use claims, these methods both reinforce a narrow definition of parody that privileges owners' rights over the social benefits of transformative works. Courts, therefore, should shift their focus from the parody/satire dichotomy to the likelihood that the new works would pose harm to owners and the copyright system versus their social benefits. Although the current copyright law is flawed, Part V will adopt legal realist perspectives to explore how courts have turned copyright law "in the books" to copyright law "in action," and how legal realism enables courts to utilize a flawed law to better accommodate the rights of the public. This Part will then offer new insights into the Salinger holdings and examine how the dispute between Beastie Boys and GoldieBlox would and should have been adjudicated if it had gone to court. The article concludes that the purpose of deconstructing the parody/satire dichotomy is to help courts stimulate creativity and, ultimately, to serve justice.
- Subjects
COPYRIGHT reform; COPYRIGHT lawsuits; NATIONAL book registration; COPYRIGHT Act of 1909 (U.S.); DISPUTED authorship
- Publication
Journal of Intellectual Property & Entertainment Law, 2015, Vol 4, Issue 2, p311
- ISSN
2324-6286
- Publication type
Article