When Art Imitates Art

March 13, 1994

G. K. Chesterton called the donkey "The devil's walking parody/ On all four-footed things." But what if the horse was copy-righted and the donkey was ruled an infringement? Only horses would be allowed. At the sight of a donkey, a pony could sue.

To parody is not to parrot. Parody is imitation as comment or criticism or ridicule. It is not forgery for counterfeit value. The thin wavy line 'tween the twain can be hard to discern.

What if you couldn't mock a stuffed shirt by repeating his words with a variance? What if you couldn't make fun of an unctuous song by twisting a few words? What if you couldn't. . .

The list is endless.

There would be no "Saturday Night Live," no "In Living Color," no political satire, no literary bagatelles, not even a "Sesame Street."

It would be life in the tyranny of the sanctimonious. A stodge curtain would have descended on the continent. All comment would be grim. You could still poke fun at someone, but not with her own words. What is meant as cruel humor would be litigated as copyright infringement.

All this was at risk when the Supreme Court ventured into the literary thicket. It was asked to decide if 2 Live Crew's rap recording, "Pretty Woman," was a take-off or rip-off of Roy Orbison's rock 'n' roll original, "Oh, Pretty Woman." If you think nine justices deliberating that question is a parody of academic deconstruction, you are dead wrong. This is solemn.

Federal law gives creators exclusive rights to their own work, with a "fair use" exception for criticism, comment, reporting, teaching, scholarship or research. The district court ruled that 2 Live Crew's bawdy "Pretty Woman" is a comment on the banality of the Orbison song. The court of appeals reversed judgment because the imitation made more money than the original.

Enter Justice David Souter for the majority of the Supreme Court to overturn the money test and find with the district court that the imitation commented on the original to some degree.

"When parody takes aim at a particular original work, the parody must be able to 'conjure up' at least enough of the original to make the object of its critical wit recognizable." The Souter conjure-up test will live. Justice Souter explained that the art of parody "lies in the tension between a known original and its parodic twin." Originals have rights, but so do parodic twins.

This was a conservative opinion. Nothing much will change. Had the Supreme Court upheld the circuit court, however, it would have had a chilling effect. Much humor that we take for granted would have dried up. Fortunately, it did not.

Baltimore Sun Articles
Please note the green-lined linked article text has been applied commercially without any involvement from our newsroom editors, reporters or any other editorial staff.