Gulliver's Trials: A Modest Proposal to Excuse and Justify Satire
30 Pages Posted: 15 Oct 2006 Last revised: 14 Jul 2008
Date Written: October 13, 2006
Satire and parody are both examples what copyright law denominates derivative works. And the two are, philologically, rather interrelated, while nevertheless remaining distinct categories. But, following ambiguous Supreme Court guidance, the status of the two genres in fair use defenses to allegations of copyright infringement is somewhat uncertain, and varies significantly amongst the circuit courts. Satire is the unequivocally underprivileged, when not categorically disallowed, genre in fair use evaluations. But refining, without changing, current judicial method in this area could serve to protect arguably more Useful Art, while leaving the current treatment of parody untouched.
This article serves three distinct, but related, purposes: (1) to disambiguate, for copyright law purposes, the terms parody and satire; (2) to prove that protection, as fair use, for satire is constitutionally consistent - and, indeed, compelled - by both copyright and First Amendment jurisprudence; and (3) to recommend a judicial method by which to incorporate this view while leaving wholly intact all current precedent.
Keywords: copyright, law, fair use, satire, parody, campbell, acuff, rose, excuse, justification
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