Copyright vs. Satire. Tell me about the extent of fair use.

November 9, 2004 11:38 AM

Copyright vs. Satire: How far can one extend the 'fair use' or satire legalities when it comes to using similar imagery in advertisement? (more inside)

Essentially, I came up with a funny commercial idea for my business, where I would like to mimick/satirise the iPod commercials. (Bright backgrounds, silhouetted characters) My products, which are in NO WAY similar to iPod or techno oriented in any way, would be featured similarly in a humourous way.The comercials would be local market only,with a smallish viewership. So my question is this. Can I use that imagery in a similar but unrelated way without placing myself in legal harms way.

posted by BrodieShadeTree to law & government (7 answers total)

IANALYAIHTACAT
(I am not a lawyer yet and I haven't taken any classes about this)

It is questionable if this is indeed "parody". To be considered parody, the work must "reasonably be perceived as commenting on the original or criticizing it, to some degree" (U.S. Supreme Court, Campbell v. Acuff-Rose Music).

If I was your lawyer, I would not reccomend doing your ads unless you could show me that there was some clear commentary about Apple's message. Why play with fire?

(I couldn't find anything real fast about satire and how it is different, but I think the same reasoning applies.)
posted by falconred at 12:19 PM on November 9, 2004

Apple wasn't too pleased with Fuse over a similar ad campaign.
posted by Monk at 12:46 PM on November 9, 2004

Nader got sued by MasterCard for copying the style of their "Priceless" campaign, but he won the case because it was political, not commercial, speech. (Which may be why Errol Morris was able to parody his own Apple "Switch" campaign ads during the election.) I don't think you would be able to make the same case.
posted by _sirmissalot_ at 12:53 PM on November 9, 2004

. . . but i'm not a laywer and don't really know what i'm talking about, yadda yadda yadda . . .
posted by _sirmissalot_ at 12:55 PM on November 9, 2004

Regardless of whether you can or can't legally do this - which is not for me or anyone here to appropriately tell you - "Am I going to get sued if I do this?" is a different question entirely and one you should be asking. It's often just as expensive when you win as when you lose. Your friendly local IP lawyer will explain the risks inherent in satire/parody advertising. Some companies are extremely aggressive in protecting their copyrights and trademarks, and will lawyer you down into the ground faster than you can say fair use.
posted by PrinceValium at 1:07 PM on November 9, 2004

All-purpose answer to all legal questions:

Whether something is legal is an academic, almost philosophical question, and reasonable people can often disagree about the answer. Law is indeterminate. This is especially true with almost anything having to do with intellectual property. No matter what you are told here, a potential plaintiff could probably come up with a decent argument for why you are wrong.

Whether someone is likely to sue you depends in part on who the potential plaintiff is, how litigitious they are, and whether they think they can persuade a judge that what you did is not legal.

Whether you are likely to get your ass handed to you in court depends on whether what you did is legal, whether you get sued, and whether you get a lucky draw in the great judicial/jury lottery.

Whether it makes sense to stake an important part of your life or business on an obscure point of law is up to you.
posted by profwhat at 1:31 PM on November 9, 2004

Thanks. I think the fuse ad issue answers my question handily. sigh.
posted by BrodieShadeTree at 4:17 PM on November 9, 2004