Are literary parodies protected under the first amendment?

What if you decided to rewrite F. Scott Fitzgerald's classic novel The Great Gatsby? Good luck with that. But wait: your protagonist is not Nick Carraway, but instead is Jordan Baker — long-time friend of Daisy Buchanan. Jordan, like Nick, goes to Gatsby's fabulous garden parties on West Egg, drinks, and rubs expensive elbows.

Jordan is also a professional golfer, and the original novel hints she may have some skeletons in her closet. So you seek to address Gatsby from a new perspective — one hinted at in the original, but one wholly unexplored, and one that you think will beget a new, incisive and surprising result. So what've you got — groundbreaking literary copy or copyright liability?

Guidelines for fair use

This is the very question author Alice Randall and her publishing company, Houghton Mifflin, faced when Randall's first novel The Wind Done Gone was published under Houghton Mifflin's imprint.

Randall's book retold Margaret Mitchell's classic Gone with the Wind from the point of view of Cynara — one of Scarlett O'Hara's slaves. Mitchell's estate was less interested in the social issues raised by Randall's pen than it was in what it viewed as copyright infringement.

Despite an initial injunction issued against Randall's book being published, that injunction was lifted and publication deemed appropriate and non-infringing under the “fair use” defense to copyright infringement. Following this ruling, the Mitchell estate settled in 2002. Parodies often fall into legal limbo. The problem is that the courts' guidelines for fair use are inherently subjective.

A brief history of derivative works

Creating new art from original works is hardly new. Writers have been doing it for years. In 1995, author Gregory Maguire parodied L. Frank Baum's The Wizard of Oz. Maguire's book, Wicked: The Life and Times of the Wicked Witch of the West, is just what its title suggests.

The Wicked Witch of the West's point of view guides the story. Maguire's book contains a familiar cast of characters for Oz fans: Glinda the good witch, the great and powerful Oz, the munchkins, and Dorothy are all present. However, it is more than simply an extension or “derivative work” of Baum's Wizard of Oz.

So what makes a derivative work protectable, and what makes a protectable derivative work?

The fair use defense

The fair use doctrine is a defense to copyright infringement. It protects specific forms of use of copyrighted or otherwise protected works, and this protection covers areas such as comment, criticism, educational use, and parody.

To determine whether a given use qualifies as “fair,” courts examine a variety of factors. They look at how much of the original work was used, the purpose of the purportedly infringing use, and any financial effect (actual or potential) of the new work on the original one.

Parody is a particularly well-known form of fair use, grounded as it is in core First Amendment activity. Simply put, this country was built in large part on the right of the people to criticize, and criticism is often impossible without use being made of the original work being criticized. The fair use doctrine recognizes this by ensconcing parody as a paradigmatic brand of fair use.

For example, when Randall was accused of infringing Gone with the Wind, she might have argued that, in order to make the parodic statements she set out to make, she needed to use a substantial amount of the original piece in order that it be recognizable.

Specifically, that her purpose was expressly parody—to show an antebellum icon in a decidedly different light—and that her use should divert few if any sales of the original. This last phrasing is actually what courts examine: if the parody convinces people that the original is somehow morally or artistically bankrupt, that would not preclude a finding of fair use: only if the second work siphons sales from the original does this factor weigh against a finding of fair use (what is measured is “market substitution, not any harm that might result from criticism).

As the Eleventh Circuit held, Randall's arguments were meritorious, and the court reversed the previous injunction on the book's sales, calling that injunction an “extraordinary and drastic remedy” that “amounts to unlawful prior restraint in violation of the First Amendment.” The case settled shortly thereafter.

But does that mean that any use poking fun at another work is immune from infringement claims? Not at all.

Parody vs. satire

First of all, one should be careful to keep the concepts of “parody” and “satire” clear in mind. Parody is a more clear defense to copyright infringement, as Jeff Koons found when he tried to use a photograph by Art Rogers titled “Puppies” as a scathing comment on society at large.

Satire, not parody — and therefore not fair use. Satire is not as clearly protected because, as commentary that is directed more at society in general, it need not necessarily use the work of another person to accomplish its goal—not so with parody, which takes aim at the other's work expressly.

A favorite example used by many copyright professors is Campbell v. Acuff-Rose Music, Inc., which dealt with 2 Live Crew's re-working of Roy Orbison's classic song “Oh, Pretty Woman.”

Second, simply retreading another's work and calling it a parody does not a parody make. Consider Fredrik Colting who, apparently like the rest of the reading universe, was deeply impressed by J.D. Salinger's Catcher in The Rye, and who set out to write a follow-up to the great novel, titled 60 Years Later: Coming Through The Rye.

While The Wind Done Gone court credited Randall's explanation that her use of Gone With The Wind and alteration thereof was meant to comment on race and social mores in America through the window of an iconic piece of art, the 60 Years court [PDF] found just the opposite: that Colting claimed parody only as a “post-hoc rationalization” for a virtual re-tread of Salinger's masterpiece—although minus the masterfulness. All Colting did, wrote the court, was to repeat “effects...already thoroughly depicted and apparent in Salinger's own narrative.” So take note: just because you think you're clever doesn't make you a parodist, and it definitely doesn't make you J.D. Salinger.

The takeaway

What should your guidelines be when you're thinking about your Gatsby parody? First, be honest with yourself: are you just in love with the book and want to emulate it? If that's your justification, you'll probably want to abandon your hopes for publication. On the other hand, does making Jordan Webster the protagonist turn the world of Gatsby on its ear? Does it allow for insights that the original could never have held, as with Wicked and The Wind Done Gone? If that's the case, and if you're using only as much of the original to allow that, then you may fall into the realm of permissible parody.

Oh, and one more thing: Gatsby is a bad example. You can do whatever you want with that particular book, since Fitzgerald died in 1940. That places Gatsby and all his other writings firmly in the public domain. Copyrights last the life of an author plus 70 years. Good news for all us Jordan Brewster fans.