IP Tech Knowledgy

Copyright parody requires the original work to be the brunt of the joke. Merely using the original in an untargeted joke is an infringement. Stephen Colbert was probably not setting up his now-former employer for copyright infringement liability when his band played a snippet of “Lucy and Linus” on his final show.   

A parody is deemed “fair use” under 17 USC §107  so long as the usage is a “transformative use” of the original, meaning that there must be an alternate purpose in using the original, different from the purpose of the work’s author. Using the original to make fun of some aspect of the original work is that necessary transformative use. In contrast, using a work to make fun of something other than the original is not a valid parody, and is an infringement. Using too much of the original would also be an infringement;  a parodist is entitled to use only enough to call the original to mind.

A recent example of the fine line between infringement and parody occurred during the final telecast of “The Late Show With Stephen Colbert.”  In one of his comedy segments, Mr. Colbert reported that the owner of the copyright to the recognizable jazz introduction to the various Peanuts/Charlie Brown cartoon shows had recently filed four lawsuits alleging copyright infringement due to unauthorized use of the song. After Mr. Colbert talked about the owner’s demand, saying that infringers might have to “pay through the nose,” his band played a short snippet of the song, and then Mr. Colbert joked that he hoped this does not cost CBS any money as an infringer. If that joke could, in part, be interpreted to be mocking the copyright owner as being overbearing in its copyright enforcement, then the usage is likely a valid parody. But if the sole purpose of the song is deemed to mock CBS for cancelling his show due to a prior claim that the show is being cancelled based on a financial decision, then the fair use and parody defenses might not apply. With all of the scrutiny the show has been under, it seems fairly obvious that the CBS lawyers considered this to be a fair use and allowed the joke to be aired, no matter how biting it may have been against CBS.

Ned T. Himmelrich
410-576-4171 • nhimmelrich@gfrlaw.com