Written by Ingrid Yu
The relationship between parody and the public domain is a fascinating exploration of creative expression and intellectual property rights. Copyright should aim to guard against only that kind of economic harm posed by unauthorized copies that seek to replace the original.[1] Parody, a form of artistic expression that humorously imitates its subject, often relies on well-known and recognizable elements from the public domain.
Beside fair use doctrine, the public domain opens another window from monopolies, a privilege that belongs to the owner of the copyright. Public domain refers to creative works whose copyright has expired or was never eligible for protection, allowing them to be freely used by the public.
Ease of Use in Parodizing Public Domain
Parodizing a public domain was seen to be an effective way to transform new ideas to the audience with the use of publicly known identity, and often be understood as a worriless choice. Parody thrives within the public domain due to the availability of timeless and widely recognized characters, stories, and themes. By drawing upon elements from the public domain, parodists can ingeniously comment on and critique societal norms, cultural phenomena, or even other copyrighted works. This intersection enables creators to play with familiar content, providing a foundation upon which they can build new, thought-provoking narratives.
One of the primary advantages of parody existing within the public domain is the preservation of creative freedom. Parodists can leverage characters and stories from the public domain without the constraints of copyright, encouraging innovation and the creation of transformative works. This dynamic relationship allows artists to blend classic elements with contemporary issues, resulting in parodies that resonate deeply with audiences while retaining a connection to cultural heritage.
Limitation on Public Domain Immunity
While the public domain offers a wealth of creative material, there are still constraints on parody. Even within this open space, trademarked and copyrighted elements can pose legal challenges if their use creates confusion.[2] Trademark market infringement may occur when parody was involved in commercial use.[3]
Commercial use of parodies, especially when based on public domain material, can raise legal questions, particularly if it competes with the market for the original work. Furthermore, the concept of obscenity and defamation still applies, even to public domain content, potentially leading to legal consequences if boundaries are crossed.[4] The parody may infringe the copyrighted work when it deviates the original work while aiming to parodize. The famous Gone with the Wind case, the debate was that Scarlett Fever was not parody but exploitation and adaptation of plaintiff’s copyrighted work.[5]
While the public domain offers a vast playground for creativity, creators must navigate these legal, ethical and commercial limitations carefully by not parodizing arbitrarily.
[1] See Marlin H. Smith, The Limits Of Copyright: Property, Parody, And The Public Domain, 42 Duke. L. Journal. 1233, 1235 (1993).
[2] David A. Simon, The Confusion Trap: Rethinking Parody in Trademark Law, 88 Wash. L. REV. 1021, (2013); Tammi A. Gauthier, Fun & Profit: When Commercial Parodies Constitute Copyright or Trademark Infringement, 21 PEPP. L. REV. 165, 203-04 (1993).
[3] Tammi A. Gauthier, Fun & Profit: When Commercial Parodies Constitute Copyright or Trademark Infringement, 21 PEPP. L. REV. 165, 203-04 (1993).
[4] See Richard J. Greenstone, Protection of Obscene Parody as Fair Use, 4 Ent. & Sports Law. 3, 3 (1986).
[5] Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257 (11th Cir. 2001).
