I agree with most of what you say, but it does seem like there is substantial harm in outlawing unauthorized parodies. The cultural value of a sincere parody is (as I see it) in reverse proportion to the likelihood that the parodied artist would (intellectual property issues aside) approve of it. The point of good parody is to turn the parodied work on its ear, like Twain’s parodies of Horatio Alger’s stories, where bad children come out happy and good children suffer miserable fates.

Aaron,
Unfortunately, most parodies are not written by Marks Twains. In addition to blatant rip-offs parasiting off the fame of the originals, there are of course honest attempts to ridicule the originals or their authors. But most of these attempts are nowhere near the quality of parody by Mark Twain.

This is exactly the problem of defining parody that I talk about in my article. Legally, brilliant parodies and bad parodies (if written honestly) are the same thing.

No one says that one should ban bad commentaries on the works. But conveying the message that a particular work “does not cut it” does not necessarily require USING that work.

What has struck me most during my research of parody exception laws worldwide was that NO country in the world has a legal definition of parody. Even the countries that have an explicit exception for parodies. Imagine that, an exception for something that they could not even define.

Like I said, I do not necessarily advocate for an absolute ban of unauthorized parodies. But I do believe that an absolute ban is better than uncontrolled expansive interpretation of what can be called a parody, thus absolving the self-proclaimed parodist of any liability.

I am very happy that Salinger prevailed on the preliminary injunction stage. I hope the matter goes to full-scale trial, so that the 2 Live Crew case receives some commentary, narrowing down its application to the concurring opinion of Justice Kennedy.

There are a couple points with which I agree with you, particularly the part where you say the court should never decide based upon quality of the parody.  However, I am unclear on where one would draw the line if parody was to be allowed without the courts issuing some sort of qualitative analysis.  And when a work of parody is introduced, the decision must always be based on subjective reasoning.

One small point with which I disagree is taking into account the possibility of an author not producing work based on the potential for it to be parodied.  In the bottle-neck industry of art where even the greatest writers jockey for some kind of publication, this doesn’t seem likely; nor does it seem quite logical in this case.

Another quibble is the value and place parodies have in society, especially when they target famous literary works.  Could you imagine the possibilities of parodying a work like “The DaVinci Code”?  It towers over the reading world and society despite its faults.  The credibility and status that novel has attained deserves to be parodied.  Parody has the ability to poke fun at and bring down the credibility of works that may be riddled with faults, or even works whose faults are not widely noticed because of the status of a novel.  Yet (to use your point) many more authors may be deterred from writing a parody of “The DaVinci Code” precisely because of the money it has generated and the ability to purchase a strong legal team. 

Which brings me to a final point.  The potential for this case seems to lie in an aspect that you don’t touch on substantially in this essay: the issue of infringement on free speech by copyright laws.  The outrageous and unduly amounts of damages awarded to holders of copyright, and the ability to ban publications seems to favor established moneyed interests over free speech interests.  Your preference for an “absolute ban” on unauthorized parodies shows that you also hold a preference for copyright over free speech.  Yet in cases such as these the public seems to be disproportionately disadvantaged by being deprived of a work that very well could add to their knowledge and interpretation of “The Catcher in the Rye.”  None of us has the opportunity to know whether or not Colting could be a Mark Twain.

To cite John Stuart Mill, it is better to have “wrong,” or as you say “bad,” works out there because if the “right” or “good” work is truly right and good then the debate about the quality of the wrong will further redeem the value of the right.  But to prevent what may be presumed to be a “bad” work from being in the public is elitist and prevents the public from access to a full debate, however effective it may be at allowing an author to maintain his status and his money.

I have a minor quibble, regarding the following:

“...Gowers offers the example of Weird Al Yankovic who has received 25 gold and platinum albums…“but had to ask permission from rights holders” It is inconceivable how a special exception can be necessary if there is a living example of an artist who sold 25 gold and platinum parody albums, but never had an urge to create unauthorized parodies.”

Yankovic does NOT need to ask permission. From his Wikipedia entry (see related footnotes there as well):

“Under the “fair use” provision of U.S. copyright law, affirmed by the United States Supreme Court, one does not need permission to record a parody. However, as a personal rule, and as a means of maintaining good relationships within the music community, Yankovic has always requested permission from the original artist before recording his parodies.”

http://en.wikiped ia.org/wiki/“Weird_ Al"_Yankovic

Wayne:
This is exactly the problem I was trying to point out. Courts are NOT SUPPOSED to go into qualitative analysis, but they can’t go without one, even if they will not admit it.

As regards small likelihood for authors to not publish their works if they may be parodied, I have known a few authors who were extremely sensitive to how their works are used. Even when offered sums that were very substantial to their overall earnings for creation of derivative works, they refused. And those derivative works had no critiquing effect over the original works. They simply could not agree to mutilation of their works.

I do recognize the value of parodies, but in most cases even the good parodies parasite upon the originals. It is obvious, without the original there would have been no parody. My issue here is that for the parody exception to be fair, two things need to be done: (1) parody must be properly defined (not only to distinguish it from satire, but also to distinguish it from other derivative works and uses such as criticism); and (2) strict limitations must be imposed on the use of parodies. Going back to your example of DaVinci Code, I see no reason why the author of a parody should not share profits with the author of the original. I see no reason why the author of the original cannot insist on unambiguous labeling of the parody as such. In my paper I came to a conclusion that it is absurd that unauthorized parodist has much more rights than the one who did obtain a license: the licensed parodist would pay royalties, be limited to the way the parody is used, be restricted as to how the name of the original author is used, etc.

Honestly, I think the free speech aspect is way overblown. One of the reasons has been stated in a Canadian parody case in Michelin, where the court referred to New Brunswick Broadcasting Co. Ltd. v. CRTC, in which Justice Thurlow wrote:

“The freedom guaranteed by the Charter is a freedom to express and communicate ideas without restraint, whether orally or in print or by other means of communication. It is not a freedom to use someone else’s property to do so. It gives no right to anyone to use someone else’s land or platform to make a speech, or someone else’s printing press to publish his ideas.”

The other reason is some logical incoherence demonstrated by many vivid proponents of “political correctness” who, on the one hand, claim that stifling of free speech is justified when the values of “political correctness” come into play, and on the other, claim that the values of free speech should stifle copyright. Actually, the Canwest v. Horizon is a good example. The defendant activists purport to diminish the plaintiff’s freedom to express their views in Vancouver Sun by attacking the paper and its publisher with accusations intended to force a change in the editorial policy of the plaintiff. At the same time, the defendants are claiming that the plaintiff’s intellectual property rights stand in the way of the defendants’ freedom of expression. It begs the question, if freedom of expression is such a great concern to the defendants, why cannot they tolerate the exercise of a comparable degree of freedom by the plaintiff? Conversely, if “redirection” of someone’s freedom of expression, as advocated by the defendants, is to be justified in a democratic society, why would such a crippled freedom have priority over a long established system of intellectual property rights?

Finally, I am pointing it out again, I have nothing against “wrong” or “bad” works being out there in the market. As long as they are not parasiting upon protected works.

B.J.:
I would say that wikipedia article is too straightforward. Parody MAY be excused under U.S. fair use doctrine. Legally, there are two points I’d like to draw attention to. First, all that fair use doctrine does is exempt one from being found infringing someone else’s copyrights. It comes into play when the use would otherwise be found an infringement. It does not authorize the use, it simply lets the user get away with it. Second, fair use doctrine operates on a case-by-case basis. I am not convinced that if EVERY single author of original songs parodied by Weird Al sued him, every parody would be exempted under the fair use doctrine.

Finally, and very important, the “personal rule, and a means of maintaining good relationships within the music community” is what distinguishes a bona fide parodist from many (I do not say all) parasite-parodists. Regardless how little respect one has for the parodied work, without it there would have been no parody. And while 2 Live Crew case established that commercial use per se does not necessarily prevent the finding of fair use, it is still a factor.

As far as your writer friends go, I wonder if, as you mentioned in your essay, they would have precluded themselves from publishing their own work in the first place with the assumption that someone may or may not parody their work.

I take issue with your use of the term “parasite.”  By nature parody is an imitation; there would be no parody if there were no use of another’s work.  The point of parody is to bring “greatness” down off its pedestal.  The novel “Pamela” was considered remarkable by the public, but Henry Fielding thought that the main character was a sham and he pursued this idea creatively by parodying her in a short novel called “Shamela.”  This brought the presumed importance of “Pamela” back down to earth.  Yes, he imitated her, but he was not limited the law in the manner of his imitation, he did not have to pay royalties, and the public was not deprived of a work that turned out to be indispensable. 

Putting “strict limitations” on the use of parody imposes limitations on creativity and thus a limit to free speech, something no free society should do. 

To be frank, I think as far as the Salinger case is concerned the Vancouver Sun case is something of a red herring.  Activists do not suffer, in my opinion, from a lack of free speech by not having access to the vehicle of their own choosing.  The case may seem a little ridiculous, but with the Salinger case the author has a willing and open platform in which to publish his work: his publisher.

The more narrow issue is whether a character, developed in a novel from an author’s imagination, can be copyrighted, whether or not a different author with a different imagination can use that character in a book and whether or not he/she should pay royalties. 

Perhaps, like Weird Al, it is in better taste to ask permission and offer royalties.  I do not think they suffer a disadvantage if they choose to enjoy the benefit of the original author’s good graces.  Authorized parodies are rarely relevant or important.  But authors like Salinger would never permit their work to be parodied no matter the quality.  Authors who are sensitive about their work would be less likely to permit the most important parodies because they question the superiority of the original, much like a tyrant stifles criticism to maintain an air of infallibility and authority. 

Even if it is in line with copyright laws, preventing a work from being published deprives the public of discourse, a discourse that is harmless socially and politically.  My argument is that if a copyright law gets in the way of free speech then the individual benefits at society’s expense.  Works of the imagination are not the same as physical property and shouldn’t be treated as such.

I with you agree. In it something is. Now all became clear, I thank for the help and I hope to see more such articles.