Woe to the copyright lawyer asked to provide an opinion on fair use. The task of predicting whether a use falls on the fair or unfair side of the fair use dividing line can be perilous. In addressing such questions, the copyright attorney is often reduced to offering “on the one hand” and “on the other hand” circumlocutions followed by a somewhat definite “maybe.”
Analyzing whether an alleged “parody” constitutes fair use is an area that is particularly hazardous. This is because courts have arguably taken inconsistent approaches on the issue of whether “parody” may encompass works that parody the author of an underlying copyrighted work as opposed to the copyrighted work itself. As a result, an aspiring parodist needs steely resolve (or a deep-pocketed publisher willing to shoulder the risk) in order to tolerate the uncertainty associated with whether the work is protected parody, or satire (which is subject to a more exacting fair use analysis).
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