Does the First Amendment protect someone’s use of another’s copyright or trademark to make fun of them?
That question has been at the forefront of several cases involving so-called “parody” of intellectual property. Many cases have found parody of copyrighted works or trademarks protected under the “fair use” doctrine or the First Amendment or both. One of the best-known examples was a parody of the song “Pretty Woman” which the U.S. Supreme Court held was protected. Another case held that a 29-second song “When Sonny Sniffs Glue” which parodied the original “When Sunny Gets Blue” was a fair use.
A U. S. District Judge in San Francisco, Susan Illston, recently applied “fair use” principles in a lawsuit brought by radio talk show host Michael Savage. Savage went on a tirade (“Take your religion and shove it”) about Muslims and the Council on American-Islamic Relations. The Council posted his virulent remarks on its website, and Savage sued it for copyright infringement. Judge Illston gave the lawsuit savage treatment, dismissing it based upon the “fair use” doctrine and the “Oh Pretty Woman” case. See Savage v. Council on American Relations et al. She noted that the Copyright Act “expressly permits fair use for the purposes of criticism and commentary.” The same First Amendment which allows Michael Savage to rant about Muslims enables them to criticize him.
Copyrights and trademarks are valuable property rights. But when someone uses them in a way which is clearly a parody or criticize, the First Amendment and the fair use doctrine should protect that use.