Criticism has long been grounds for fair use status. This comment argues that parody's value, and its qualification for fair use status, should be defined by its critical effect. It follows then, that the amount which the parody should be able to borrow should be measured in terms of this critical effect: the parodist should be able to borrow the amount necessary to achieve effectively her work's critical purpose, which is the only reason for allowing fair use in the first place. This comment begins with an examination of the fair use doctrine and its application to parody by courts and commentators. The comment then shows how most courts have failed to recognize the special place of criticism in parody. It argues that this failure has led courts to inept definitions of parody which distort its function and obscure its value. The comment then proposes a test for protecting valid parody, based on the work's critical effect, and suggests a method which will lead to an equitable balance between the needs of two art forms when they collide, as they inevitably must when one work parodies another.
Susan L. Faaland,
Parody and Fair Use: The Critical Question,
57 Wash. L. Rev.
Available at: https://digitalcommons.law.uw.edu/wlr/vol57/iss1/7