When Is Parody Fair Use?

PARODY is imitation. And imitation, when it is of an expressive work such as a novel or play or movie, is a taking. The parodist takes from, or if you wish "copies," parts or aspects of another expressive work. If that work is copyrighted, why isn't the parodist an infringer? The usual answer is that the use a parodist makes of the parodied, that is, of the copied work, is a "fair use" within the meaning of copyright law and is therefore lawful.' The answer does not always succeed in persuading courts. Many alleged parodies have been held to be copyright infringements-sometimes trademark infringements instead or as well and I shall discuss parodies of trademarked works along with parodies of copyrighted ones. Economics can clarify the issues of copyright (and trademark) law presented by parodies. Building on earlier work,2 I offer an economic analysis that may help both to explain and to improve the legal treatment of parody. I argue that the copyright exemption for parodies is and should be very narrow. In particular, it should not extend to cases in which the parody does not attack the parodied work but rather uses that work to attack something else. But to explain all this, it will be necessary first of all to develop a clear idea of what a parody is and of what the various