Fair Use and Parody in Fiction

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In celebration of National Novel Writing month, Authors Alliance is pleased to bring you resources and information about copyright issues of note for fiction authors. In this post, we will go over fair use as it applies to fiction writing. Last week, we discussed copyright protection for literary characters, and the preceding week, explored exceptions to copyright that are relevant to fiction authors.

One of the exceptions to copyright we talk about most often at Authors Alliance is fair use. Fair use is a doctrine that allows the use of copyrighted works without permission in certain circumstances, and is included in the Copyright Act. Authors Alliance offers a full-length guide to fair use for nonfiction authors, as well as a dedicated resource page designed to help authors navigate fair use issues. Within fiction, fair use comes up in different contexts than we normally see in nonfiction, as many of the core purposes of fair useโ€”news reporting, research, and nonprofit educational usesโ€”do not fit neatly within the ambit of commercial fiction. For this reason, fair use in fiction is often discussed in terms of parody. Parodyโ€” first discussed as a fair use by the Supreme Court in Campbell v. Acuff-Rose Musicโ€”works as a form of comment and criticism, core purposes of fair use. In the aforementioned case, the Court stated that parody had to โ€œmimic an original to make its point.โ€ While mimicking an original work is typically indicative of the kind of copying that can be infringement, in the context of parody, this similarity is essential for the parody to be successful. The Campbell Court defined a parody as a โ€œliterary or artistic work that imitates the characteristic style of an author or a work for comic effect or ridicule,โ€ a definition which courts have more or less applied since. 

Suntrust Bank v. Houghton Mifflin 

The seminal court case for parody fair use in fiction is Suntrust Bank v. Houghton Mifflin, in which the estate of Margaret Mitchell, author of the perennial bestseller, Gone With the Wind, sued an author who had borrowed elements of the story for copyright infringement. The case concerned a book written by author Alice Randall entitled The Wind Done Gone, which Randall stated was โ€œa critique of [Gone With the Wind]’s depiction of slavery and the Civilโ€“War era American South.โ€ The Wind Done Gone subverted many of the racial stereotypes in Mitchellโ€™s novel, turning a story of a wealthy white family living on a plantation in Georgia into one which โ€œflips [Mitchellโ€™s] traditional race rolesโ€ and criticizes the racist tones in Mitchellโ€™s prose by foregrounding complex and well-developed Black characters. 

The Wind Done Gone incorporates fifteen separate characters from Gone With the Wind into its story, as well as several distinct elements of the plot, โ€œsuch as the scenes in which Scarlett kills a Union soldier and the scene in which Rhett stays in the room with his dead daughter Bonnie, burning candles.โ€ Yet the court relied on the Campbell decision to find that Randallโ€™s use of Mitchellโ€™s work was a fair oneโ€”it was necessary to directly evoke the work in order to comment critically on it in a way that would be clear to readers. 

Dr. Seuss v. Penguin Books

Two other cases involving alleged parodies of works by Dr. Seuss illustrate the nuances of parody fair use a bit further. In Dr. Seuss v. Penguin Books, the estate of Theodor Geisel (the author of the Dr. Seuss Books) sued Penguin Books for its publication of an allegedly infringing work. The Cat NOT in the Hat! A Parody by Dr. Juice was โ€œa rhyming summary of highlights from the O.J. Simpson double murder trialโ€ which evoked the style of Seussโ€™s work. Penguin argued that the work was a parody of The Cat in the Hat and thus a fair use. The Cat NOT in the Hat! included language telling the O.J. Simpson trial story in the style of Seuss, such as โ€œOne Knife? / Two Knife? / Red Knife / Dead Wifeโ€ and โ€œ[I]f the Cat didnโ€™t do it / Then Who? Then Who?โ€ Yet evoking Seussโ€™s style was not enough to make the work a parodyโ€”the court emphasized that โ€œ[a]lthough The Cat NOT in the Hat! does broadly mimic Dr. Seuss’ characteristic style, it does not hold his style up to ridicule.โ€ Unlike The Wind Done Gone, The Cat NOT in the Hat! did not comment on the original work, but merely borrowed its style to achieve different aims. For this reason, the court found that the work was not a parody, and that the authorโ€™s use of Seussโ€™s characters and style was not a fair one. 

Lombardo v. Dr. Seuss 

In Lombardo v. Dr. Seuss, the Geisel estate once again sued an author that had borrowed from Dr. Seussโ€™s work to create her own. In this case (which we have written about before in the context of fair use analysis), the allegedly infringing work was a play called Whoโ€™s Holiday, which โ€œmakes use of the characters, plot, and setting of the Dr. Seuss book, How the Grinch Stole Christmas! . . . to make fun of it and to criticize its qualities.โ€ Whoโ€™s Holiday features the main character in How the Grinch Stole Christmas, Cindy-Lou, as a 45-year old woman who has fallen on hard times. Throughout the play, Cindy Lou โ€œdrinks hard alcohol, abuses prescription pills, and smokes a substance she identifies as โ€˜Who Hash,โ€™โ€ while speaking in rhyming couplets which evoke Seussโ€™s style. Unlike the Penguin Books case, Whoโ€™s Holiday did in fact criticize How the Grinch Stole Christmas!. Like The Wind Done Gone, it commented on the wholesome tone of the original work by juxtaposing it with crass, adult language and themes. Whoโ€™s Holiday โ€œsubverts the expectations of the Seussian genreโ€ and making it appear โ€œridiculous,โ€ functioning as an effective parody well within the bounds of fair use. 


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