Sheep in Goats' Clothing: Satire and Fair Use After Campbell v. Acuff Rose Music, Inc.

Abstract

A tricky question emerges from the Supreme Court's decision in Campbell: If a parodic work, to use Justice Souter's words, shades into satire, is it no longer classifiable (and therefore no longer defensible) as a parody? Should it be regarded as having crossed a critical boundary for fair use purposes? Campbell suggests that it should, but there are actually compelling reasons, rooted in principles underlying the doctrine of fair use, why some types of parodic works that shade into satire should not be regarded as infringing. After examining the curious development of the parody/satire distinction within the law of fair use, this article draws on literary theory to propose a workable and more accurate taxonomy than that provided in Campbell, by means of which courts engaging in a fair use analysis can evaluate works that are hybrids of parody and satire.

Keywords: intellectual property, law, copyright, infringement, fair use, parody, satire, literary theory

JEL Classification: K19