Last month, the Second Circuit Court of Appeals in New York City affirmed a ruling which held that Who’s Holiday – a modern play in which the main character, Cindy-Lou Who from Dr. Seuss’ How The Grinch Stole Christmas, is now an adult, humorously engaging in adult behavior – is a parody protected by the First Amendment.
This protection means that the creators of Who’s Holiday, though they are obviously copying and performing original creative elements of 1957’s The Grinch, do not need to obtain permission from the current copyright owners of The Grinch.
The Copyright Act itself sets forth four non-exclusive factors which courts consider in “determining whether the use made of a work in any particular case is a fair use” and therefore not requiring permission of the owner of the original work. These four factors range from the amount of the original work used in the new work, to the extent the new work may diminish the market value of the original work. Fair use does not solely apply to parodies – it can also apply to uses which are, for example, “de minimus” (i.e., only a very small portion of the original was used).
In making a determination as to fair use in the Grinch case, the Second Circuit referred to a 1994 U.S. Supreme Court case, Campbell v. Acuff-Rose Music, Inc., in which the Court held:
“Parody presents a difficult case. Parody’s humor, or in any event its comment, necessarily springs from recognizable allusion to its object through distorted imitation. Its art lies in the tension between a known original and its parodic twin. When parody takes aim at a particular original work, the parody must be able to conjure up at least enough of that original to make the object of its critical wit recognizable.
What makes for this recognition is quotation of the original’s most distinctive or memorable features, which the parodist can be sure the audience will know. Once enough has been taken to assure identification, how much more is reasonable will depend, say, on the extent to which the [work’s] overriding purpose and character is to parody the original or, in contrast, the likelihood that the parody may serve as a market substitute for the original. But using some characteristic features cannot be avoided.” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994) (emphasis added).
Very ironically, in order for a work to be found to be a parody, and therefore protected from a copyright infringement claim, the work must (by its very nature as a parody) use elements of the original work. This flies in the face of usual copyright infringement rules, which is what makes it perhaps the most interesting type of fair use.
However, parodists should be cautious to use the original’s most distinctive and memorable features only for the purposes of recognition and identification of the original, and then only add, beyond that, original elements with the overriding purpose to parody the original. Parodists should also be aware that they may face litigation even if their use is ultimately found by a court to be fair use.
Applying the ruling in Campbell to this case, the Circuit Court held: “While the Play does use the Grinch’s characters, setting, plot, and style, it is in service of the parody. The Play does not copy verbatim or quote from the original book, and while it does recount the plot, it does to invoke the original.” (emphasis added.)
Therefore, the purpose of the usage counts. The purpose should be in service to the parody – to recognize and identify the original work, and then to add starkly contrasting original elements to parody the original. Essentially, the purpose should be, as the court held in Campbell, “distorted imitation.” The parodist should seek to avoid the likelihood that the parody will serve as a market substitute of the original. And the parodist should only copy with the purpose of identifying the original work, and to parody it.
As is the case in most areas of copyright law, however, there are no bright line, quantitative rules for how much of a certain kind of use is infringement and how much is not, which is why litigation still tests them – and why Dr. Seuss Enterprises opted (unsuccessfully) to try to cease this show from going on. You’re a mean one, Mr. Grinch.
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