Parody vs. Copyright?
January 11, 2012 11:28 PM   Subscribe

Parody or copyright violation?

I'm working on a humorous app with popular culture references, focusing on the torso area such as alien chest bursters, kuato (the mutant from Total Recall), Terminator etc... All the images will be of our own design, parodying pop culture characters.

How does the copyright vs. parody rule address this? How can I make sure that we are in the clear?
posted by pakoothefakoo to Law & Government (9 answers total)
What jurisdiction are you working in?
posted by Sys Rq at 11:33 PM on January 11, 2012 [1 favorite]

How does the copyright vs. parody rule address this?

There is no simple rule to define when a parody infringes copyright.

How can I make sure that we are in the clear?

Talk to a lawyer.
posted by grouse at 12:20 AM on January 12, 2012 [3 favorites]

There is no "be sure you're in the clear" without having gotten permission from the copyright holder first. One issue with copyright violation is that if somebody wants to argue it in front of a judge, they can do so. Even if you've done the most parodyish thing and stamped "this is a parody" all over it, the copyright holder can still sue. Wierd Al still asks for permission to use songs, even though his face is in the Dictonary of Parody next to the word "Parody". Lawyer up, but doing what you want without asking permission first is still leaving you open to having to prove your parody in court. Even if you're lawyer says that you've got a 100% chance of winning in court, you still have to go through the effort and expense of appearing in court to do so.

On the bright side, there's a brazillion high-profile t-shirt store websites that use all sorts of copyrighted and trademarked imagery in their designs, likely without asking permission and without worry of being sued. They're banking on the fact that the copyright holder won't be threatened by their product, and find it unproductive to try to sue for copyright violation. That's an odds game, and a lawyer can help you try that game, and probably with some good success. Your question was about guaranteeing legal shielding, though, of which getting permission is the only ironclad way to do it.
posted by AzraelBrown at 6:19 AM on January 12, 2012

To fit within the parody exception of copyright the parody has to be of the copyrighted work. You can use a movie character to parody the movie, but not to parody say a politician. In either event studio will likely sue you, and they have deep resources for lawyers. It's just that you stand a better chance of winning the first type suit than the second.
posted by caddis at 7:02 AM on January 12, 2012

Oh, and these issues are complex enough that you would be insane to go into this without the advice of a competent IP attorney viewing exactly what you propose to use in your app.
posted by caddis at 7:04 AM on January 12, 2012

You may find this an interesting read: North Face vs. South Butt.
posted by cjorgensen at 8:46 AM on January 12, 2012 [1 favorite]

(note that cjorgensen's link is for *trademark* violation; copyright and trademarks are two separate things, with different rules regarding their appropriation. It is entirely possible to be safe in one, but not safe in the other.)
posted by AzraelBrown at 8:59 AM on January 12, 2012 [1 favorite]

Copyright has provisions built in for fair use. Copyright is automatic, but expires.

Personally if this were my project I would feel free to go ahead. If you look at the deviant art site it is rife with copyright violations (and trademark violations). No one pursues it because it's not worth it.

Robot Chicken riffs on about everything in pop culture.

I couldn't imagine someone getting sued over something like this, but then I refuse to live my life in fear that my every action may result in a lawsuit. People can sue you for anything, but will they win and is it worth the time (and attention they will bring you) are the better questions. I also have a lawyer.

Another concern for app use is the TOS of the platform you will be releasing on. You might be totally fine as far as the law is concerned, but still have issues getting approval.
posted by cjorgensen at 5:56 PM on January 12, 2012

Response by poster: Thanks for the thoughtful answers, I'll get in touch with a lawyer.

And Sys Rq: I'm in California
posted by pakoothefakoo at 7:56 PM on January 13, 2012

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