What Is California's Parody Law?

As with the rest of the United States, California's parody law is actually codified in federal law, since the U.S. government has preempted the field of copyright law as a whole. As a result, parodies are protected against claims of copyright infringement if they meet the required analysis of the fair use doctrine.

To understand the extent of protection in California and elsewhere in the U.S. for works that are considered parodies, it’s important first to define what we mean by parody. Not every work that comments on another creative work will qualify as parody under copyright law, nor is humor alone sufficient.

Parodies are creative works that subject another work to criticism or ridicule by imitation designed to be humorous or comedic in nature. Parodies may themselves be protected by copyright, as long as they meet the legal definition provided in the U.S. Copyright Act. More often, the legal question is whether a parody infringes on the copyrighted work that it holds up for ridicule or humor.

To the extent the parody copies the work that is protected by copyright, the parody and its creator may infringe upon that copyright. The primary defense to this charge is a claim of fair use.

Copyright is essentially a form of personal property. It grants to the makers of certain creative works a personal property interest in their artistic or creative output. That private property interest supersedes every other interest, unless a specific “slice” of the copyrighted material has been licensed or sold by the original artist or interest holder.

Copyright is one form of a broader umbrella of rights in certain creative or personal works known as intellectual property, or IP. Other aspects of IP rights include patents, trademarks and service marks. As with copyright, all forms of IP rights depend on the existence of some type of work or, in the case of patent law, an invention that is the product of a creative work process.

The bundle of rights that are included within the notion of copyright are extensive. Copyright grants the right to publish the work to the copyright holder. It also includes the right to create subsequent works based on the original work, to modify the original work and to sell the work or reprints of the work.

For example, when authors write novels, the copyright for the book belongs solely to the author, until they negotiate an agreement with a publisher and trade some part of the copyright to the publisher. In exchange for the right to first publish the novel, the publisher typically agrees to pay the author an advance against a percentage of sales. The right to publish is often limited to a certain geographic area. Any other rights not traded away stay with the author.

For example, the author can give the publisher first North American rights, which means the publisher can sell the work to the public in North America, but only for the initial publication. If that is the case, the author retains the copyright for the novel for a subsequent publication run and for all publication rights everywhere else in the world.

The essential thing to remember is that copyright is a bundle of personal property rights, each of which belongs to the copyright holder until that person sells, licenses or otherwise transfers the right to someone else.

Historically U.S. copyright laws were a mixture of federal and state legislation and regulation. Both Congress and state legislatures could enact statutes that applied to either the entire country or that specific state. As long as the state legislation did not contradict or attempt to weaken or eliminate federal copyright protections, such state laws could continue to coexist with the federal statutes.

That all changed dramatically in 1976, when Congress passed the Copyright Act of 1976. This law created a thorough federal regulatory and legislative structure for copyrighted works. In addition to instituting the federal legal basis for protecting copyright interests, the Copyright Act of 1976 effectively preempted state attempts to make their own laws in this area. Because the new federal statutory scheme completely occupied the field of copyright law, no attempt at state legislation was enforceable. Federal law 17 U.S. Code § 301 explicitly repeals corresponding state laws whether codified in statutes or found in court opinions.

The net effect of the federal preemption of state law is that any creative work that fits within any category of protected work in the copyright statutes cannot also be protected by state laws, even if the work doesn’t actually rise to the level of a protected work within the federal statutes. In other words, if a creative work doesn't qualify for copyright protection under federal laws, a state law cannot grant it copyright protection.

Some courts have ruled that the federal law prohibits state prosecutors from bringing criminal charges of copyright infringement. However, there may be other state laws that apply to cases involving copyright that could criminalize some other act at issue in a particular case.

By and large, the question of whether a parody of a copyrighted work in California is permitted under the fair use doctrine or any other defense will be governed by federal courts applying and interpreting federal law.

U.S. copyright laws grant protection to “original works of authorship fixed in a tangible medium of expression.” This broad definition applies to several different kinds of work, with only minimal restrictions. The Copyright Act expressly mentioned eight specific types of works of authorship:

• Literary works.
• Musical works.
• Dramatic works, such as plays.
  
• Pantomime and choreography.
• Visual arts, such as pictorial, graphic and sculptural works.
• Movies and other audiovisual works.
• Sound recordings.
• Architectural works.

Any work that meets this definition is automatically protected under the copyright laws of the U.S. While authors, composers and other copyright holders, may register the work with the U.S. Copyright Office, registration is not required for the work to be protected as long as it was first created after March 1, 1989.

Registration may confer certain advantages on the copyright holder, such as defeating the defense of the “innocent infringer” – the person who doesn’t know the work was protected under copyright before copying or selling the work or otherwise infringing on the copyright.

If a work is protected by copyright in the U.S., the copyright holder enjoys several exclusive rights, including:

• The right to perform and publish the work.
• The right to make copies of the work and sell them or the original work.
• The right to create subsequent works derived from the original work (“derivative works”), including sequels.
• The right to destroy the work.

Only the copyright holder has these rights, unless that person transfers the right to another person (as with a novel publisher, where the author transfers the right to first publish the book). A parody of such a work may well be considered a derivative work, unless the parody meets the elements of the fair use defense. If the fair use doctrine does not apply, then the parody author may be deemed to have infringed on the copyright of the underlying work’s author.

If a parody is targeted at a work that is no longer protected by copyright, it can't be said to have infringed on the author's copyright. Works that fell out of copyright protection due to the passage of time are said to be in the public domain. As a result, anyone can use that work to make a derivative work, such as a parody.

As a general rule, once a work created after January 1, 1978, is protected by copyright, that protection will last for the life of the author or creator of the work, plus an additional 70 years. If the work was published anonymously, the term of protection lasts for 95 years past the date it was first published, or 120 years past the date of its creation, whichever term expires first.

For works created prior to January 1, 1978, the length of copyright protection depends entirely on several factors. The prior copyright statutory scheme offered a general protection “first term” of 28 years from the date the copyright first attached to the work by creation or publication. Copyright protection could be renewed by the holder for a second term of 28 years. These were basic rules that could be varied by several different factors.

Satire and parody are fundamentally protected forms of speech under the First Amendment. Both types of work are considered to be time-honored public discourse designed to criticize or highlight the absurdities inherent in social or political issues.

The overriding public interest in fostering a free and fair exchange of competing ideas concerning issues of public concern supports both parody and satire. Satire generally is more likely to concern what could be construed as political speech, but parody also advances this public policy of open communication in the marketplace of ideas by making light of oppressive or serious ideas. Even if a parody piece makes its audience laugh, that humor still promotes and advances the exchange of competing viewpoints.

As a result, they are generally excepted from copyright infringement claims. For the same reason, they may also be valid defenses to suits alleging defamation.

Read More: Can I Record Someone Else's Song and Change the Words in Parody Law?

Even if a creative work is included within the protection of copyright laws by meeting the general requirements of the Copyright Act, its unauthorized use may still be permissible under the doctrine known as the fair use doctrine. Fair use is often claimed as a defense against claims of infringement where a work parodies another work that enjoys copyright protection.

The fair use doctrine requires the court to examine four factors:

1. The purpose and character of the use – is it commercial in nature or for nonprofit or educational use? 
2. The nature of the copyrighted work, that is, the underlying original work.
3. How much of the underlying work is included in the parody work.
4. The effect of the use on the market for, or the value of, the underlying copyrighted work. 

A parody is considered to be fair use of the underlying work if the balance of these factors weighs in favor of the parody, as opposed to the copyrighted work, under existing parody law. Art, music, literary works and all other forms of creative expression may be protected by the fair use doctrine, as long as the work satisfies the balance of these four factors.

Whether the fair use doctrine applies to protect a parodist from a claim of infringement is a highly fact-dependent question. As a result, attorneys and interested parties must examine the existing case law in a parody lawsuit to determine whether a court has ruled on similar facts before.

For example, in one case, photographer Annie Leibovitz sued Paramount Pictures for mocking her famous photograph of the nude and pregnant actress, Demi Moore. The alleged parody took a photo of another woman posed in similar circumstances and superimposed the head of actor Leslie Nielsen on the woman’s body. The court held that this was a parody and met the criteria for the fair use defense. As a result, it could not be said to infringe Leibovitz’s copyright in the original photograph.

However, another case concerned a book about the O.J. Simpson murder trial that was written to imitate the simplistic rhyming style of Dr. Seuss. Dr. Seuss Enterprises, the copyright holder of Dr. Seuss books, brought suit against the publisher. However, the court in this case held that the book about Simpson did not qualify as a parody that was entitled to the fair use defense, and thus infringed on the copyright holder’s interests.