Reasonable Perception and Parody in Copyright Law
80 Pages Posted: 22 Mar 2010 Last revised: 7 May 2021
Date Written: March 12, 2010
When the Supreme Court decided that parodies should be given protection under the doctrine of fair use, it attempted to chart a clear course through the waters that had eddied since it last sailed through them forty-three years earlier. In the process, the Court sailed its ship in three primary directions, making the same number of holdings. First, a parody is a type of work entitled to fair use protection. Second, a work qualifies as a parody when it can “reasonably be perceived” as such. Finally, a work’s status as a parody is not determinative of whether it is fair: courts still must analyze the work using the § 107 fair use factors.
Despite the Court’s navigational guidance, the parodic sea still whirls with judicial uncertainty: noticeably absent from the Court’s decision and subsequent lower court decisions are methods for determining what can “reasonably be perceived” or who reasonably perceives the work. No one has systematically examined how lower courts have applied the “reasonably perceived” test, or how courts have used a finding of parody to inform their fair use analyses. This Article examines these issues and suggests that the Supreme Court failed to adequately articulate the foundational elements of this test, causing lower courts to apply the test in variety of ways. Paradoxically, however, this analysis shows that, after finding a parody existed, courts have been fairly uniform in their fair-use factor analyses.
If the first part of this Article reveals a stormy and poorly charted judicial sea, the second part proposes a new course by articulating a new reasonable perception test and modifying the subsequent fair use analysis. This test is built by deconstructing the current framework for analyzing a parody and then framing it in terms of reasonable perception. This also removes any factor-based analysis for parodic works. Deconstructing and then reconstructing the inquiry this way allows courts to apply the parody doctrine with greater accuracy and consistency. It also anchors the parody inquiry, keeping the judicial ship close to parody’s doctrinal dock.
Keywords: parody, copyright, infringement, fair use, reasonable perception, indicia
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