In general, parody is a well-tested defense to copyright infringement claims. For example, legal cases involving Barbie Girls and Pretty Women have hammered in the points quite definitively, though the question of what exactly is parody has persisted throughout the years. Generally, it would be seen as something that ridicules the original work. So, using the comical characters from the Game of Thrones to ridicule the current state of politics is probably fair use.
Recently, the question has popped up with a new and stranger answer that makes the situation complex. What is this potential new parody standard? How has it changed with time? Does this new standard go where it has never gone before?
In 2016, Dr. Seuss Enterprises, LLP, sued ComicMix for a book they published entitled as “Oh the Places You’ll Boldly Go” (Boldly). The book itself was meant to reference “Oh the Places You’ll Go” by Dr. Seuss, and included art and text to mimic the feel and tone of his book with a small twist. Everything in it would also reference Star Trek. For example, one portion of the book included an almost exact replication of the art within the Dr. Seuss work, although with the character Spock and his evil counterpart locked in a game of three-dimensional chess. Colloquially, this type of work may be referred to as a “mash-up,” which is a combination of two or more different things to create a new work.
The court in its determination aligned with previous decisions that limited the reach of parody as a defense. However, in denying parody, it created something new: An apparent (limited) exception for mash-ups. In granting fair use, Boldly seems to be saved by the transformative nature of the book, and of mash-up culture as a whole. Indeed, the whole point of the book was to mimic the look of Dr. Seuss while infusing it with Star Trek, ultimately telling a story with a similar theme.
The judge stated: If fair use was not viable in a case such as this, an entire body of highly creative work would be effectively foreclosed. Of course that is not to say that all mash-ups will or should succeed on a fair use defense; the level of creativity, variance from the original source materials, resulting commentary, and intended market will necessarily make evaluation particularized.
So essentially, mash-ups appear to be getting similar treatment to parody, and will be acknowledged on a similar basis to any other fair use case, with a possible emphasis on the transformative nature of the work.
What are the ramifications?
The initial ramifications of this may be small. In the above case, the court was a federal court, and it was an order regarding a motion to dismiss. However, the point the judge made stands – i.e., mash-ups, while not necessarily parody, have their place. Without some acknowledgement, they may be similarly curtailed as copyright holders do not “mash up” their works with others.
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