Ask the Lawyer: Fair Use or Ripoff?

Mark J. Sever, Jr. is co-chair of the Intellectual Property Practice Group at in Haddonfield, where he concentrates on patents, copyrights, trademarks, trade secrets and technology-related matters.

Q: I have a book idea that is a spoof on another book. If I change the book name and the words, will I be legally safe in proceeding to write it?

A: The answer to your question is, “It depends.” Whether you are “legally safe” in publishing your spoof lies in the interpretation of copyright law as applied to the specific facts of your work compared to the original.

First, some brief background. Copyrights protect works of authorships, such as books, music, paintings, sculptures and even computer software. Generally, the author of such a work owns the copyright to that work. By owning the copyright, the owner has certain exclusive rights with respect to the work, including the exclusive rights to create derivative works based on the original, to make copies of and distribute the work and, where applicable, to perform and publicly display the work. The exercise of any of these exclusive rights, without the consent of the copyright owner, is considered copyright infringement.

The creation of a spoof of a copyrighted book seemingly violates the exclusive right the owner of the copyright has to create derivative works of the book. So how, then, are people such as Weird Al Yankovic, who creates parodies of copyrighted songs, not liable for infringing the copyrights to those songs?

The “fair use” defense to copyright infringement permits certain activity that  would otherwise constitute copyright infringement. The rationale for the defense is grounded in First Amendment free speech principles—namely, to encourage criticism or comment. Courts consider several factors in determining whether the fair use defense applies, including whether the new work is being used for commercial gain or nonprofit educational purposes, the amount of the copyrighted work used in the new work, and the effect the new work has on the market for the copyrighted work. If, after considering these factors, the court determines the fair use defense applies, the creator of a work, such as a book, that is based on a copyrighted work, will not be considered to be infringing and will be permitted.

The Supreme Court has held a parody may qualify as fair use. A “parody” is a work that uses some element of a prior author’s work to create a new one that, at least in part, comments on the prior work. The more a work comments on, or parodies, a prior work, as opposed to simply “borrowing” language from the prior work to extend or supplement its subject matter, the more likely it is to be considered a fair use.

While it’s possible a spoof could be considered a permissible parody under the fair use defense to copyright infringement, determining whether the fair use defense actually applies requires a very fact-dependent analysis. An attorney knowledgeable of copyright law should be consulted to review both the original book and the spoof to determine whether the defense applies or whether copyright infringement has occurred.

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