Parody without the porn - and without the parody

By Geoffrey Gerber

Hopefully some of you will be going to museums, book stores, and movie theaters this weekend. If you are in Olympia, Washington, you may want to check out the Olympia Comics Festival. I like this year’s poster. It reminded me of the famous scene from Stanley Kubrick’s Dr. Strangelove (winner of the 1965 Hugo Award for Best Dramatic Presentation). You know, the one where Slim Pickens rides the nuclear bomb to earth. It also reminded me of the subtitle for the movie, Dr. Strangelove or: How I Learned to Stop Worrying and Love the Bomb. In fact, it is just like it.

 

There was a similar image in today’s St. Louis Post-Dispatch, which collected a political cartoon by Cam Cardow from the Ottawa Citizen.

Mike’s explanation of copyright parody raises a question about whether these two cartoons infringe the copyrights in Dr. Strangelove or in the character Major T.J. “King” Kong. Neither is a parody.

A parody provides commentary on the original work. Stephen Worth, the Director of the ASIFA-Hollywood Animation Archive provides a great explanation of parody and the trade-off between copying or plagiarism and originality. He uses Charlie Chaplin as an example and mentions some of Chaplin’s lawsuits to protect his art. Not all of Chaplin’s legal rights were based on copyright, see, e.g., Chaplin v. Amador, 269 P. 544 (Cal. Ct. App. 1928), but the importance of originality from the artist’s perspective holds true. In a separate piece, he uses old comics to distinguish parody from plagiarism.

Copyright does not prevent cartoonists from copying ideas from Dr. Strangelove, it merely prevents them from copying the particular expression of those ideas. It is o.k. for Cardow to copy the idea of an out-of-control hawk whose love for military confrontation surpasses his own interest in self-preservation. It is not o.k. for Cardow to copy the way Kubrick and Pickens expressed that idea.

Both images clearly invoke the idea and ethos of Dr. Stangelove, but neither comments on the movie or the character. They are not parody. They both use elements of the scene from Dr. Strangelove to comment upon other things. In that sense they are both transformative, but the transformative use test applied to the images at issue in Comedy III Productions, Inc. v. Saderup, 21 P.3d 797 (Cal. 2001) or Winter v. DC Comics, 69 P.3d 473 (Cal. 2003), applies to the right of publicity, not copyright.

Assuming no license to create a derivative work, if a jury found substantial similarity between these images, Cardow and the Olympia Comic Festival would have to base their defense on the fair use doctrine. Cardow’s image makes a specific political comment about an issue of public concern, it does not advertise anything, and he used only as much of the Major Kong iconography as needed to make his point. I suspect that Cardow’s fair use defense would prevail. How would the Olympia Comic Festival do?

If you are in Olympia this weekend, check it out. They may need your support.
Trackbacks (0) Links to blogs that reference this article Trackback URL
http://iplitigator.huschblackwell.com/admin/trackback/31761
Comments (0) Read through and enter the discussion with the form at the end
Post A Comment / Question Use this form to add a comment to this entry.







Remember personal info?
Send To A Friend Use this form to send this entry to a friend via email.