A parody that more loosely targets an original than the parody presented here may still be sufficiently aimed at an original work to come within our analysis of parody. If a parody whose wide dissemination in the market runs the risk of serving as a substitute for the original or licensed derivatives (see infra, discussing factor four), it is more incumbent on one claiming fair use to establish the extent of transformation and the parody's critical relationship to the original. By contrast, when there is little or no risk of market substitution, whether because of the large extent of transformation of the earlier work, the new work's minimal distribution in the market, the small extent to which it borrows from an original, or other factors, taking parodic aim at an original is a less critical factor in the analysis, and looser forms of parody may be found to be fair use, as may satire with lesser justification for the borrowing than would otherwise be required.
Wednesday, March 23, 2011
In Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 580, n. 14 (1994) Justice Souter, writing for the Court, observed -- in connection with the distinction the Court was drawing between "parody" and "satire" -- that a work that poses little or no risk of substituting in the market for the copyrighted work may be sufficiently transformative to constitute fair use even if it does not primarily take "parodic aim" at the copyrighted work: