In a previous posting, I discussed "Fun with Dick and Jane," and the distinction drawn by the Supreme Court in Campbell between parody and satire. Campbell regarded parodies as directing their ridicule toward the original: "Parody needs to mime an original to make its point" about the original. Satire was regarded as directing its ridicule toward society at large, or at least not solely toward the original. Because "satire can stand on its own two feet [it] requires justification for the very act of borrowing."
Justice Kennedy's concurring opinion made the same distinction as Justice Souter's majority opinion, but took a more restrictive approach to what might qualify as a privileged parody. Justice Kennedy expressed concern that defendants might get off the hook merely by being humorous. My earlier posting expressed a similar concern about political correctness. I felt (and still do) that it should not be enough, for fair use purposes, to justify an unauthorized derivative work merely on the ground that the original was racist (Gone With the Wind), white-bread (Pretty Woman) or Waspy suburbanite (Dick and Jane).
But I do not ascribe to Justice Kennedy's restrictive view of fair use. What should matter is whether the use is transformative or in its synonyms, productive (Sony) or complementary (Posner). If the degree to which the use made is transformative is the true (or at least initial) focal point of the fair use inquiry, then the parody-satire distinction, if regarded as erecting a higher threshold for satire, is wrong.
I also question the utility of the distinction as a matter of classification: if a satirical musical group takes a Bob Dylan song from the mid-1960s and substitutes new lyrics for the purpose of showing how at least some former hippies are now Republicans living in the Virginia suburbs, is the work a parody or a satire? Isn't the work at least partly directed toward Dylan? Most importantly, for fair use purposes why should we care what label is affixed so long as the public is benefited with a transformative use that provides new commentary or insights?
Justice Souter was aware of the problems of his own classification scheme, observing that "parody often shades into satire - when society is lampooned through its artifacts." And he also cautioned against bright-line rules. Indeed, Campbell's principal contributions to fair use jurisprudence were its jettisoning of the Sony "presumptions," in particular Sony's false dichotomy between non-commercial and commercial uses. That dichotomy haunted fair use decision making for ten years after Sony.
Let's hope that the parody-satire distinction does not have the same effect. It is possible Justice Souter meant no more than an observation about the problems of proof that a satirist would face, rather than setting out a legal hurdle to overcome.
A reader of the blog, Annemarie Bridy recently published an excellent look at these issues in the Winter 2004 Journal of the Copyright Society.