RedShirtNo5.1
Explorer
Those interested in parody defense in the US should compare the fact patterns of Leibovitz v. Paramount Pictures Corp. and Dr. Seuss Enterprises, L.P. v. Penguin Books USA Inc.
Graphic Artist Copies Wayne Reynolds art for Rush Limbaugh newsletter
- Thread starter CAFRedblade
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I dunno. It's very common to use the form and layout of a famous painting for parodies. For example, Grant Wood's American Gothic or Edvard Munch's The Scream.
To me, this seems very similar to all the works that mimic American Gothic. The only thing might be that the D&D painting might not be "famous enough". I.e. if it was instantly recognizable, there would be no question that the Limbaugh work is playing off the D&D work.
To me, this seems very similar to all the works that mimic American Gothic. The only thing might be that the D&D painting might not be "famous enough". I.e. if it was instantly recognizable, there would be no question that the Limbaugh work is playing off the D&D work.
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Usually, when this is done, it is done to specifically reference the connotations associated with an iconic piece of art. That is, when someone does a picture of themselves as a parody of American Gothic, they are saying something about themselves as being in harmony, humorous juxtaposition, contrast, radical distortion, etc. with that piece's place in the culture.
In comparison, this is the use of a bit of commercial art from a game...and not even one of the major, iconic pieces from that game. The only context being alluded to is a hero struggling against seemingly impossible odds. I really don't think that gets them to the safe harbor.
In comparison, this is the use of a bit of commercial art from a game...and not even one of the major, iconic pieces from that game. The only context being alluded to is a hero struggling against seemingly impossible odds. I really don't think that gets them to the safe harbor.
Very interesting, thanks. The Leibowitz case fits closer to my own preferred approach, it rejects the approach followed in the Dr Seuss case that you can only take what is necessary to 'conjure up' something. The latter case seemed a bit biased against the defendants, appearing to agree that the OJ murder parody could potentially be a market substitute for The Cat in the Hat!
From the latter case, this was particularly relevant:
"Id. at 580, 114 S.Ct. at 1172 (citations omitted). The Court pointed out the difference between parody (in which the copyrighted work is the target) and satire (in which the copyrighted work is merely a vehicle to poke fun at another target): “Parody needs to mimic an original to make its point, 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 and so requires justification for the very act of borrowing.” Id. As Justice Kennedy put it in his concurrence: “The parody must target the original, and not just its general style, the genre of art to which it belongs, or society as a whole (although if it targets the original, it may target those features as well).” Id. at 597, 114 S.Ct. at 1180. The Second Circuit in Rogers v. Koons, 960 F.2d 301, 310 (2d Cir.1992), also emphasized that unless the plaintiff's copyrighted work is at least in part the target of the defendant's satire, then the defendant's work is not a “parody” in the legal sense:
It is the rule in this Circuit that though the satire need not be only of the copied work and may ․ also be a parody of modern society, the copied work must be, at least in part, an object of the parody, otherwise there would be no need to conjure up the original work․ By requiring that the copied work be an object of the parody, we merely insist that the audience be aware that underlying the parody there is an original and separate expression, attributable to a different artist."
So they're distinguishing between protected 'parody' and unprotected 'satire' in a way that would mark the Rush vs Rat as satire, and using a 'need to conjure up' standard which the Rush-rat would clearly fail, since an original monster would seem to do just as well.
Edit: I can't actually see why satire should not be a protectable fair use, though. I'd think the 'market substitute' test should be the most important one here.
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Yeah, we (and it) suck!
prosfilaes
Adventurer
I would have thought that part of parody or satire would be the expectation that your audience would get the reference.
Philotomy Jurament
First Post
Can't say I prefer either one: they net out about the same, for me.
El Mahdi
Muad'Dib of the Anauroch
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