Monday, October 26, 2009

Is Foul Use "Fair Use"?

If you quote too much of me, I’ll sue the pants off you!

Well, not me really, because I’d be most flattered, but other people might sue you for violating their copyright. You are allowed “fair use” of copyrighted material, but how much use (and what manner of use) is “fair use”?

I was drawn into consideration of one aspect of the “fair use” issue by an article in Slate by Tim Wu, Professor of Law at Columbia University. (The article, which gives a useful overview of the issue, is at http://www.slate.com/id/2233152/.) I e-mailed Prof. Wu that “I was interested in the fact that (according to the article) courts or legislatures have determined that ‘Parody (but not satire)’ is protected by the fair use doctrine.” I wondered “what the legal definitions of parody and satire might be that would lead to different treatment of the two in the courts.” My wondering was based, I wrote, on the fact that “parody is one device used by satirists (indeed, I think the case can be made that all parody--no matter how friendly--is satirical--no matter how mild),”

Prof. Wu was gracious enough to quickly respond to my e-mail, and we exchanged several more, during which exchange, Prof. Wu asked me to expand my views and I attempted to oblige. This blog is drawn from my responses.

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Satire is a purposeful art; it attempts to unmask folly that is posing as wisdom, or evil posing as good. Since false appearance is accepted as truth, satire must do something out of the ordinary to jar and upset the audience's vision of things. And will use many different artistic devices to do so.

David Worcester in his book The Art of Satire divides satire into three types: invective; burlesque; and irony. Burlesque (not the strippers, alas) Worcester categorizes as the satiric mode that is based on imitation (parody and travesty, for example, are two of the forms of burlesque satire).

Parody is usually an attack on style (and because the style is the man, therefore on the man himself, who is a prisoner of his stylistic tics). A favorite parody of the 1950's was the rendering of Lincoln's Gettysburg Address in Eisenhowerese (available at http://powellhistory.wordpress.com/2008/03/24/if-eisenhower-had-given-the-gettysburg-address/). The incongruity of the loftiness of the content and its rendering through flat, stumbling banalities was glorious satire of Eisenhower's speechifying. Satire also uses incongruity to render its target’s content ridiculous. A recent example which attacked the content rather than the style was the rendering of Sarah Palin's actual words as poetic speech (available at http://www.slate.com/id/2201342/). The satire attacked her words by demonstrating how they could not live up to the lofty presentation.

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Below I have copied some excerpts from the Supreme Court's decision in the case of CAMPBELL, AKA SKYYWALKER, ET AL. v. ACUFF-ROSE MUSIC, INC. (in which the Court ruled that a rap parody of "Pretty Woman" was “fair use”) and annotated in italics certain points:

a) The germ of parody lies in the definition of the Greek parodeia, quoted in Judge Nelson's Court of Appeals dissent, as "a song sung alongside another." 972 F. 2d, at 1440, quoting 7 Encyclopedia Britannica 768 (15th ed. 1975) [something always to be careful about--words are human constructs and like human beings don't always dwell where they were born]. Modern dictionaries accordingly describe a parody as a "literary or artistic work that imitates the characteristic style of an author or a work for comic effect or ridicule," [this definition does take note of parody of style] or as a "composition in prose or verse in which the characteristic turns of thought and phrase in an author or class of authors are imitated in such a way as to make them appear ridiculous" [these "characteristic turns of thought and phrase" are the verbal tics that deserve to be ridiculed]. For the purposes of copyright law, the nub of the definitions, and the heart of any parodist's claim to quote from existing material [but really the quoting can be of content or style!], is the use of some elements of a prior author's composition to create a new one that, at least in part, comments on that author's works [the “commenting”—truly a weak word-- renders the original ridiculous, if the parody is any good].

b) Parody needs to mimic an original to make its point [it always must be kept in mind that parodic mimicking distorts, which makes it satirical], and so has some claim to use the creation of its victim's (or collective victims') imagination, whereas satire can stand on its own two feet [this truly makes no sense and is totally unexplained; is this relying on the belief that satire is always ironic in nature, and not also burlesque at times?] and so requires justification for the very act of borrowing.

c) [The Copyright Act of 1976, 17 U. S. C. § 107] has no hint of an evidentiary preference for parodists over their victims, and no workable presumption for parody could take account of the fact that parody often shades into satire when society is lampooned through its creative artifacts [this seems to indicate the belief that parody is specific, while satire is general, but satire can be general or specific], or that a work may contain both parodic and nonparodic elements [goes without saying].

d) Satire has been defined as a work "in which prevalent follies or vices are assailed with ridicule" [close to my definition, which is more descriptive] 14 Oxford English Dictionary, supra, at 500, or are "attacked through irony, derision, or wit [pretty weak definition]" American Heritage Dictionary, supra, at 1604 [perhaps the Court, relying on these definitions, doesn't see the specific trees because of the general woods].


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Let's make some distinctions here: if I do my party routine of imitating Bogart, Cagney, etc. (trying to be as accurate as possible), I'm not parodying but mimicking--for there is no attempt to deride those I'm imitating. If I start to exaggerate the mannerisms of speech, gesture, etc., then I'm moving into the realm of parody. Think of caricature, which is analogous to parody, in that the features of the subject can be twisted and distorted (noses lengthened or shortened, chins extended forwards or receded and so on) to make the hidden essence of a person (his wolfishness, her cattiness) evident to the viewer. Too bad the Court, while seeing that parody and satire both deal with the ridiculous, did not understand their relationship. Parody IS satire—and satire, by its nature, is criticism. The Court acknowledges that Section 107, provides that "the fair use of a copyrighted work . . . for purposes such as criticism [or] comment . . . is not an infringement . . .." (Also, “Parody, like other comment and criticism, may claim fair use.”)

But perhaps the real problem with the Court (in which it is only following a certain obtuse conventional idea) is in believing that satire is concerned with making only bitingly-negative (even vicious) attacks on society (what I have termed "the general").* This is reflected, I think, in the Court's statement that "society is lampooned" by satire. Thus, the Court has removed the specific (mild or harsh) attacks on a person's inadequacy of style, language, dramatic range, etc. from their rightful places in the universe of satirical means and modes.

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Here are two excerpts from Pope's "The Rape of the Lock":

My Lord, why what the Devil?

Z___ds! damn the Lock! 'fore Gad, you must be civil!
Plague on't! 'tis past a jest--nay prithee, Pox!
Give her the hair!
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Mean while declining from the Noon of Day,
The Sun obliquely shoots his burning Ray;
The hungry Judges soon the Sentence sign,
And Wretches hang that Jury-men may Dine . . .
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In the first extract Pope is satirizing (by parody) the bumbling, clichéd mutterings of witless courtiers; in the second he fashions a satirical attack on the operation of the justice system. Both are satire, one is parodic. As Pope wrote elsewhere: "Fools rush into my head, and so I write." As the fools rushed into his head, Pope used many literary devices in his satirical works to expose those fools (whether attacked specifically or generally), including, of course, parody. And sometimes the satire was biting, but sometimes the satire was mild. I don't think the fact that the heat of satire can, like pepper sauce, run from mild to five-alarm is widely appreciated. Or that while imitation may be the sincerest form of flattery, parody can be a sincerely-determined effort to reveal the true foolishness or viciousness behind the front of personal style.

*There are historically two streams of satire coming down from the Latin poets, the Juvenalian and the Horatian. The Juvenalian mode is basically straightforward denunciation of the evils and follies of the times; the Horatian follows the rule of Horace, who spoke of "Telling the truth smiling"--that is, sugarcoating the bitter pill (ala Mary Poppins: "A spoonful of sugar makes the medicine go down"). It seems that too often (like with the Supreme Court) only the Juvenalian mode is recognized as satire, while the nicer (at least on the surface) Horatian mode is considered humor (or something else) but not satire.

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