Fair Use Failing the First Amendment? How the Parody and Satire Dichotomy May Be Stunting Political Discourse

By: Megan Lynn Wheeler

from Volume 12 (2022-2023)

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The First Amendment, in certain circumstances, is used as a defense to “protect[] satire and parody as a form of free speech and expression.”2 When it comes to jokes, “[q]uestions . . . have arisen in case law [pertaining to satire typically] concerning libel, emotional distress and copyright infringement.”3 Further, in a right of publicity claim, “[t]he First Amendment clearly protects all but the most intrusive coverage of news, or details of a person’s private life, such as are reported in the tabloid press or talk shows.”4 This demonstrates that humor and satire have a close relationship with the First Amendment jurisprudence and that the First Amendment provides strong protection for dissident voices pertaining to public officials and figures so long as they are not overtly “intrusive.”5 While First Amendment almost whole-heartedly urges for freedom of robust debate and discord over public concern, copyright creates a property interest in speech and expression, particularly as it pertains to the expressive works of public figures. As a result, “copyright laws grant a copyright owner the right to suppress or abridge another person’s freedom of speech when that person seeks to express copyrighted material.”6 This Note will evaluate how the stark differences of approaches between the doctrines may be most at odds in the expressions of parody and satire as they are now regulated by copyright law’s First Amendment “fair use” “safety valve” (which results in overlooking entirely the First Amendment issues) and suggest that the Supreme Court overrule, or Congress pass an amendment to, the common law parody-satire distinction to carve out an exception for parody and satire to be evaluated at a First Amendment standard of scrutiny.

This analysis will evaluate first, how satire is a utilitarian form of public and political expression recognized by the First Amendment; second, how the First Amendment defense operates in protecting comedic, humorous, and satiric forms of public comment; and, finally, how the First Amendment protection has been increasingly eclipsed by the intellectual property doctrines of copyright (and trademark) in litigation pertaining to such satirical works. Then, I will illustrate First Amendment protection analysis for satirical works through a survey of cases where the intellectual property doctrines certainly take legal priority over serious First Amendment concerns, and contrast those with cases that allow infringement or some form of copying that has little to no First Amendment value.