The Debate over Parody in Copyright Law: An Experiment in Cultural Critique

Abstract

When the cast of Saturday Night Live sang "I Love Sodom" to the tune of "I Love New York," Elsmere Music, Inc., the copyright proprietor of the tune, "did not see the humor of the sketch." It took NBC to court for copyright infringement. This was not a unique case. Motion picture companies had gone after Jack Benny for his parody of Gaslight and Sid Caesar for his of From Here to Eternity. Walt Disney sued the publishers of counterculture comic books and the makers of pornographic films for the parodic use of characters like Donald Duck and Mickey Mouse. The proprietor of the copyright of "Boogie Woogie Bugle Boy" charged that its copyright was infringed by the composers of "Cunnilingus Champion of Company C." The opinions in these cases, and a few others like them, shape a contemporary legal debate about the nature of parody. When does parody constitute a valid defense to a charge of copyright infringement? The responses in judicial opinions and scholarly papers present a curious paradox. The cases are transparently mundane and the impetus for the claims is obviously commercial. Indeed, one commentator noted, "The impact of commercial motivation is heightened by the fact that in our modern society, the commercial motivation is virtually universal." Yet, this recognition appears on the margins of commentary that is usually couched in language more appropriate to discussions of "high culture" works of artistic creation. In assessing the challenging relationship of parody to the idea of copyright, judges and academic commentators consider the high-minded purposes of copyright law in the United States, set out in Article I, section 8 of the Constitution-"to promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." Moreover, they adopt a rhetoric consistent with this grounding principle that focuses on a mythical Anglo-American ideal-the virtuous individual author who carries out acts of independent creative genius and who is motivated, like all selfinterested persons, by the hope of material or financial reward. The classic humanist view of the artist is only less entrepreneurial. What are we to make of this gap between a rhetoric of copyright that embraces the majesty of the artistic creation and the obvious commercial contexts that have defined case law? Potential answers are located in the realm of mass consumer culture and the relations between copyright law, commercial motivation, and the endowment of cultural legitimacy on the products of mass culture.