In another victory for fair use, Judge Deborah Batts ruled today that the adaptation of the song “When You Wish Upon A Star” was protected by Section 107 of The Copyright Act, otherwise known as the fair use exception.
I’m always interested to see these parody cases play out because parody is so ingrained in our culture even though it’s not strictly legal. I say that it’s not strictly legal for a couple reasons:
1. Fair use is an affirmative defense: meaning that technically an infringement has occurred, but it’s allowed
2. There’s no mention of “parody,” per se, within Section 107.
While the first point could be chalked up to semantics, the second one is important. The preamble to 107 reads, in part:
[T]he fair use of a copyrighted work . . . for purposes such as criticism [or] comment . . . is not an infringement of copyright.
Yes, it’s true that the identified portion of the preamble can be viewed as referring to parody. Still, the preamble is simply a non-exhaustive list of situations that have been found to be fair use in the past. Fair use won’t be found simply because the use of a particular work is a criticism, however. One must still go on to explore [at least] the factors enumerated within 107.
Take a minute to think about how many times a day you’re exposed to commercial parody. Isn’t it a little bit interesting that so many people are willing to risk litigation?
Don’t get me wrong: I’m a huge advocate for fair use. I just think that society’s view of fair use with respect to parody is . . . interesting given the actual jurisprudence.