Theatrical Parody in an Age of Uncertain Fair Use in the Second Circuit
Fair use doctrine has been challenged and stretched by the technological leaps and bounds of recent years. In the recent Second Circuit case, Author’s Guild v. Google, the court grappled with the issue of whether Google Books snippets were fair uses of the copyrighted works. These determinations are far beyond the scope of what is contemplated by the Section 107 of the 1976 Copyright Act, which sets forth factors courts should consider when evaluating fair use claims. The fair use standard is clearly changing—in a recent Law360 article, Meaghan Kent, Briana Rizzo and Linda Zirkelbach posit that the bounds of fair use are shrinking.
The Second Circuit has consistently treated parody as a category that is presumptively fair use following the Supreme Court’s decision in the seminal fair use case Campbell v. Acuff-Rose Music, in which the Court found 2 Live Crew’s parody of the rock song “Oh, Pretty Woman” to be fair use. The band had tried and failed to obtain a license from the song’s copyright holder, but decided to produce the song anyway. Nonetheless the Court found the song was fair use. As fair use determinations become more complicated, federal courts have maintained their position that parody is presumptively fair use, outweighing other factors in fair use analysis.
It may seem the time is ripe for artistic parody. While fair use analysis is designed as a multi-factor balancing inquiry, parody is often in practice dispositive of a fair use. This means that judges and juries frequently make determinations of what is and isn’t a parody. Two recent Second Circuit cases involving theatrical plays parodying other works ended in resounding findings of fair use. In both cases the uses were commercial and substantial, and central portions of the original works were used, factors which would tilt away from fair use.
Just this past September, in Lombardo v. Doctor Seuss Enterprises, Judge Alvin Hellerstein found that an upcoming Off Broadway play called Who’s Holiday! which parodies Dr. Suess’ How the Grinch Stole Christmas was fair use. The play is a one-woman show, and the sole character is a 45-year old version of Cindy Lou Who, one of the main characters in Seuss’ book. The play consists only of Dr. Seuss-style rhyming couplets, and envisions a dark future for Cindy Lou. As Judge Hellerstein explains, “Cindy-Lou drinks hard alcohol, abuses prescription pills, and smokes a substance she identifies as ‘Who Hash,’ which she describes as just ‘like a prescription.’” It’s easy to see that this play is a parody, and this factor weighs most heavily in Judge Hellerstein’s analysis.
In Keeling v. Hars, a 2015 case, the Second Circuit Court of Appeals found that a play called Point Break Live! parodying the action film Point Break was a fair use. In fact, the court held that the play’s author could copyright her parody play without obtaining permission from the film’s copyright holders. Point Break Live! “relie[d] almost exclusively on selected dialogue from the screenplay” but also included “jokes, props, [and] exaggerated staging” to make it an “irreverent, interactive theatrical experience.” Point Break Live! too seems to be a clear parody, its mocking character unmistakable: “the Keanu Reeves character is selected at random from the audience and reads his lines from cue cards, thereby lampooning Reeves’s reputedly stilted performance in the movie.”
But must an artistic parody be obvious in order to count as one? And more importantly, who gets to decide? Regardless, these seem more like philosophical inquiries than legal questions. But overreliance on the parody/not parody determination inevitably lead to these concerns. In Campbell, the Court set forth a definition of parody cobbled together from several dictionaries: “[T]he use of some elements of a prior author’s composition to create a new one that, at least in part, comments on that author’s works.” 510 U.S. 569, 580 (1994). This means that courts must determine whether the allegedly infringing work “comments” on the original, and to decide how much “comment” is sufficient.
Last October, in TCA TV Corp. v. McCollum, the Second Circuit Court of Appeals found that the use of a minute of Bud Abbott and Lou Costello’s famous routine, “Who’s on First?” in a play called Hand to God was not fair use. The issue of parody was not discussed directly in the fair use analysis, and the comedians estates’ claim failed on other grounds, but this case provides a good example of the artistic judgments courts these cases ask courts to make.
The Who’s on First routine in Hand to God occurred between the lead character, Jason, and his romantic interest, Jessica. Jason tries to impress Jessica by performing a minute of the routine with his sock puppet, Tyrone. Jason initially pretends he wrote the routine, and an argument with Tyrone about the routine’s true authors and origins. This leads to Tyrone speaking vulgarly towards Jessica and her signals that he is beginning to become Jason’s “evil or devilish persona.” 839 F.3d 168, 175 (2d Cir. 2016).
Hand to God is not an obvious parody. Its author did not contend in court that it was a parody. But it arguably does, at least in part, comment on Who’s On First: the routine appears frequently in American artistic works, and some of us may be familiar with the routine without knowing which decade it originated in or who its authors are—indeed, I personally have heard parts of the routine a few times and had no idea that the routine was created by Abbott and Costello. If Hand of God’s use of Who’s on First had been a little different, a little more obviously parodic, could the play’s creators have prevailed on their fair use defense? Only time will tell whether the Second Circuit will scale back its position on parody when it comes to fair use, but for now obvious parodies continue to get a free pass while more subtle comments on existing works are denied.
Rachel Brooke is a J.D. candidate, 2019, at NYU School of Law.