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An Analysis of the Parody in Relation with the First Amendment

The constitution is the basis of all laws in the United States. It establishes the form of the national government and defines the rights and liberties of the American people. It also lists the aims of the government and the methods of achieving them. However, the earliest for of the constitution is not perfect and has flaws. Thus, amendments in the constitution are done to correct or enhance law enforcement. An amendment, in law, is a process of correcting a pleading or procedure at law or in equity. (Merriam-Webster, 2010) The first 10 amendments in the US constitution are famously known as the Bill of Rights.

The First Amendment of the US Constitution

One of the most controversial and historical amendment done to the U.S. constitution is the First Amendment. It is basically the first of the 10 amendments constituting the Bill of Rights. Generally, the First Amendment is the "Freedom of Religion, Press, and Expression." (Mount, 2010) It states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."(The Amendments, 2010) It is the backbone of the word freedom in the country. However, there are certain restrictions that are exercised in these amendments. Such restrictions include speeches that are regarded to be "damaging to individual interests" (The Columbia Encyclopedia, 2004); are regarded to be threats, or basically just "damaging to the society as a whole" (The Columbia Encyclopedia, 2004). Examples of these restrictions are libel, slander, and obscenity.

The Freedom of Expression

The freedom of expression (speech, press, assembly and petition) has governmental restrictions only. The government cannot outlaw speeches such as "antiwar speech, speech praising violence, racist speech, procommunist speech, and the like". Moreover, it is not restricted to political speech only, but also include "speech(es) about science, religion, morality, and social issues as well as art and even personal gossip." (Volokh, 2010).  Speeches such as mentioned above are clearly speeches that promote negativism. Furthermore, the government cannot collect fees from these speeches and movements. Also, they cannot "authorize civil lawsuits based on people's speech" (Volokh, 2010). However negative or bad the people say and do about the government, it is considered to be their freedom. That is how powerful the First Amendment is.


The First Amendment Permissible Restrictions

Even with the broad scope of freedom of expression guaranteed by the First Amendment, there are still some "historically"-rooted exceptions. For example, the government can make restrictions regarding the time, place and manner of the speech. If it has nothing to do with the matter or goal of the speech, the government can make such restrictions. One specific example would be, the government can restrict "the use of loudspeakers in residential neighborhoods at night, limit all demonstrations that block traffic, or ban all picketing of people's homes." (Volokh, 2010).

Another case wherein the government can impose restrictions includes a few narrow categories of speech such as "incitement, false statements of fact, obscenity, child pornography, fighting words, and threats." As the Supreme Court held in Brandenburg v. Ohio (1969), the government may forbid "incitement"-speech "directed at inciting or producing imminent lawless action" and "likely to incite or produce such action" (such as a speech to a mob urging it to attack a nearby building). Furthermore, defamation can also be punished. Negligence in delivering the facts can lead to lawsuits (Volokh, 2010).

Some hard-core pornography also falls into this restriction. These can be labeled as obscenity by law as executed by the Supreme Court in Miller v. California (1973). However, the scope of obscenity is not clear. In the case of Cohen v. California [1971], obscenities including only the use of vulgar words is not restricted (Volokh, 2010).

One of the controversial issues connected to the First Amendment is the existence of parodies. Parody is a "literary or musical work in which the style of an author or work is closely imitated for comic effect or in ridicule" (Merriam-Webster, 2010). These are basically imitations of an original work that has a motive of promoting comedy or ridicule. Today, the First Amendment considers and protects parodies as a form of free speech and expression (Hughes, 2010). However, it was and is still an issue that parodies can be libelous, can cause emotional distress, and copyright infringement.

The Case of "Hustler Magazine, Inc. et al. v. Jerry Falwell"

This is a case from 1980, wherein a well-known minister named Rev. Jerry Falwell was used in an advertisement parody by Hustler that "portrayed him as having had a drunken sexual encounter with his mother in an outhouse." The parody was a spoof on a series of ads for Campari Liqueur. The ad contained an ad warning which says, "ad parody - not to be taken seriously." Furthermore, the table of contents of the material containing this ad noted it in the, "Fiction; Ad and Personality Parody" section. This is a very sensitive and serious case because Falwell is a religious figure (Hughes, 2010).

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Falwell sued Hustler for "libel, invasion of privacy and intentional infliction of emotional distress." (Hughes, 2010). A federal district court ruled the case that delivered a directed verdict in favor of Hustler. It gave a reason that regarding the libel claim that no reasonable person would believe that the situation depicted in the ad would be true. However, the court acknowledged the claim for emotional distress and gave Falwell awards for its damages.

The Case of "Campbell v. Acuff-Rose Music, Inc."

Hughes (2010) discussed that in this case, the 2 Live Crew's song "Pretty Woman," a parody of Roy Orbison's rock ballad, "Oh Pretty Woman," was challenged by Acuff-Rose Music, Inc. as an infringement on the company's copyright on the Orbison tune. The publishing company argued that Campbell "had not made fair use of Orbison's song". They pointed out that Campbell's version used the original work for commercial purposes and that he had taken too much of the original work. Campbell got the favor from the US Supreme Court that said, the commercial parody was in a fair use.

The Court exemplified the conditions of a fair-use analysis. They said that there are four factors contributing to the determination of favor for each "fair-use analysis" case. These factors are: "(1) purpose and character of the use, including whether the use is commercially motivated or instead is for nonprofit educational purposes; (2) nature of the copyrighted work; (3) amount and substantiality of the portion used in the newly created work in relation to the copyrighted work; and (4) effect of the use upon the potential market for or value of the copyrighted work." (Hughes, 2010) These factors must all be taken into account.

The Case of "Leibovitz v. Paramount Pictures Corporation"

"Paramount did a teaser ad for the film, "Naked Gun: The Final Insult 33 1/3." The ad spoofed a 1991 cover of Vanity Fair, which featured a photo of a pregnant, nude Demi Moore. Paramount got another model, who was also pregnant, to pose nude. The head of Leslie Nielsen, the star of the film, was superimposed onto the body of the model. A federal district court and the 2nd U.S. Circuit Court of Appeals held that the parody ad was a fair use." (Hughes, 2010) Parodies such as these are clearly damaging the people they are involved with. The model who posed as nude accepted the job not knowing that her face would be changed to the face of Nielsen. It is emotionally distressing but the motives of the company are unintentional.

The Case of "Dr. Seuss Enterprises v. Penguin Books USA"

Penguin Books published a book entitled The Cat NOT in the Hat! A Parody by Dr. Juice. It contained a poetic account of O.J. Simpson's trial and did not parody The Cat in the Hat. There was no "fair-use" defense and the book was outright held as copyright infringement (Hughes, 2010). This is a parody that did not asked for the permission of copying the title of the book. This is an exception to the amendment that causes a copyrighted material to be violated.

The Case of "The Wind Done Gone"

Alice Randall's novel, The Wind Done Gone, was sued for a copyright infringement/parody case. It is a parody of the American classic written by Margaret Mitchell, Gone With the Wind. It was released in 2001 and it basically used the characters and scenes from the original novel as a" satirical critique of Mitchell's primitive depiction of African-Americans." (Hughes, 2010)

Mitchell's camp accused Randall of copying liberally from the original and thus, it is not actually a parody but a sequel. With the application of the "fair-use" elements, "the appeals court recognized that Randall's work was made for a commercial purpose. However, the court said that this factor was "strongly overshadowed and outweighed in view of its highly transformative use" of Gone With the Wind." (Hughes, 2010) Furthermore, the court recognized that Randall's novel would not potentially harm the market value of Mitchell's book.

Parody: Fair-use or Copyright Infringement

There is an existing problem between the copyrighted owner of the work and the parodist. It is very unlikely for a copyrighted owner to give permission to a parodist to use their copyright protected work in making a parody.  Since, copyright laws prohibit the use of copyrighted work without permission from the copyrighted owner, it may be necessary for the parodist to claim for the fair-use defense to avoid or prevent any liability of copyright infringement.

Another line of defense that may be available to parodists is the free speech principles incorporated with the First Amendment. Rich (1999) accounted for the historical accounts of courts being sensitive to the "interaction between parody as a means of entertainment and as a form of social commentary and criticism and First Amendment values." And that "the public interest in such expression could be construed as outweighing the rights of the copyright owner". Furthermore, entertainers have successfully incorporated the free speech principles into their act to present a wide-range of artistic expressions (Rich, 1999).

There are many cases wherein the courts struggled to determine whether a particular parody falls within the "parameters of fair use or is instead copyright infringement". The Copyright Act's fair-use section "specifically enumerates criticism as one of the purposes for which the fair use defense was contemplated" (Rich, 1999).

Fair-Use Analysis

In Section 107 of the Copyright act, the four elements of the fair-use analysis were enumerated. These are the basis of courts for making decisions regarding cases involving copyrighted material, such as one used in parodies. These factors work hand in hand. The courts evaluate these factors and take into consideration each one of them, no one factor is left out. Rich (1999) enumerated these factors: "(1) purpose and character of the use, including whether the use is commercially motivated or instead is for nonprofit educational purposes; (2) nature of the copyrighted work; (3) amount and substantiality of the portion used in the newly created work in relation to the copyrighted work; and (4) effect of the use upon the potential market for or value of the copyrighted work."

1. Purpose and Character of Use

This factor takes into consideration the following criteria: (1) is it for commercial or non-commercial use? More preference is given for non-commercial user; (2) it follows the fair-use purposes enumerated in the copyright rule such as "criticism, comment, scholarship, research, news reporting or teaching" (Rich, 1999); and (3) the purpose of the new work as compared to the purpose of the copyrighted work. Therefore, the important and crucial issue is that "whether the parody has altered the copyrighted work by adding new expression and meaning to the original copyrighted work." (Rich, 1999)

2. Nature of Copyrighted Work

This criterion recognizes that "that certain types of works are simply more deserving of copyright protection than other types of works and consequently establishes the scope of copyright protection that should be afforded the original copyrighted work." More favor is given to "informational work" such as work of facts, information, scholarship or news reporting over "creative work" such as work of fiction, art or music. Another important consideration is that whether the work is published or not (Rich, 1999).

3. Amount and Substantiality of the Portion Used of the Copyrighted Work

Rich (1999) explains that this criteria takes into consideration "the amount and substantiality of the copying in relation to the copyrighted work as a whole." Furthermore, "the crucial determination is whether the quality and value of the material copied from the original copyrighted work is "reasonable" in relation to the purpose of copying." This criterion not only evaluates the quantity but also the quality of the work copied from the original work.

4. Effect Upon Potential Market or Value of the Copyrighted Work

Moreover, Rich (1999) explains that this criterion takes into consideration "the extent of harm that is caused by the new work to the market or potential market for the original copyrighted work." Furthermore, "This factor evaluates the "potential" as well as "actual" financial harm that is or may be done to the original copyrighted work, as well any harm that may be caused to any existing or possible future derivative works."

There was even one time when the United States Supreme Court declared that this criterion is the most important of the four criteria. Moreover, "Although this factor does not presume that all commercial gain will automatically be an unfair use it does establish a high threshold of proof for the copier to demonstrate that the underlying work was not financially damaged." (Rich, 1999)

The importance of the First Amendment is very distinguishable. It is the basis for the word "freedom" in the American dictionary. Parodies can be positive or negative. When it comes to dealing with negative-impact parodies, the parodist results to consulting the First Amendment for help. This creates an air of uncertainty and unjustly decisions: whether it was the freedom of expression or it was a violation of the copyright law. That is why the fair-use defense was formulated. Excessive freedom of expression can be fatal, in the sense that it allows negative ideas to flow and penetrate the society. People who value their privacy and work suffer because of the vague line between fair-use and copyright law; or most importantly, is parody a violation of the First Amendment.

Furthermore, the fair-use defense is a very abusive way of finding way out from the copyright law. Parodists should have the conscience to ask for permission from the copyrighted owner. Respect should be given to whatever the decision would be. Contradiction between parodies and the First Amendment was seen in this analysis. Further assessment of the law, this will straighten up the blurs in the parody industry. Consequently, further amendments may be created to further clear things out with the parodists.

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