Parody vs Copyright Infringement

Jedi

I've been working on a game in my spare time. Its a single player only fps/3rd person zombie survival shooter. I'm at the point now where I want to add humor (parody) elements to the game...

Reflecting on what my favorite comedies are I always come back to Family Guy/American Dad. They make fun of things that already exist - parody - often in a negative way. When they build their jokes upon these things/events that they probably aren't "cleared for" in the traditional way, it makes it funnier for me/the viewer than if they had tried to make up entirely new jokes without parody.

I assume that Family Guy/South Park gets cease and desist letters regularly, or they used to before they really took off. Yet, they have consistently swatted those letters away. I assume that they they have consistently responded in the same manner to all cease and desist letters, citing their rights to parody.

Having said that - how could I prepare for this as a single developer? I have a vivid memory - I'm not sitting here with the dvd playing on my other screen, copying it frame by frame. Instead, I probably have seen what I want to parody once or twice, years ago.

I know that youtube will take your videos down without a care so I assume that youtube is out, and my own video hosting is in. Do you guys think there is a difference when your parody medium is 2d cartoon vs semi-realistic 3d in game vs very-realistic pre-rendered cutscene?


from https://www.knowledgetree.com/blog/parody-or-copyright-infringement

A parody exists when one imitates a serious piece of work, such as literature, music or artwork, for a humorous or satirical effect.
A parody, because it is a method of criticism, must inevitably make use of another creative work. This inherently creates a conflict between the creator of the work that is being parodied (as no one likes to be criticized, made fun of or ridiculed) and the creator of the parody. It is also highly unlikely that a copyright owner will grant permission or a license to a parodist to use their copyright protected work in creating a parody.

So, the very act of parody inevitably requires an infringement of sorts to take place. The real issue remaining and the one that has not yet been satisfactorily settled by the courts, is what constitutes fair use versus copyright infringement?

Two Listen

Parody seems like it's a lot easier to justify for TV and movies.

With games it seems to be a weird gray area, depending largely on the content and overall feel or message of the game. According to the legal folk I heard discussing this recently, parody is almost never a valid defense when you're making something like slot machine games (even virtual ones), I assume because it takes something and associates it with something generally considered bad (gambling), even if the use of the content is for the sake of laughs. Games can be about all sorts of things, and give off all sorts of vibes.

If it's something you're planning to go commercial with, I'd just ask a lawyer about it, because there don't seem to be any clear cut rules for games that I can tell. And I'm pretty certain that even shows like Family Guy haven't been able to simply brush aside every claim. I wouldn't be surprised if there are tons of claims that've been settled out of court (even if they have the right to parody, it's not always worth spending millions in court over).

ScudzAlmighty

regarding Family Guy, I don't know if they get permission for every bit, but in the 200th episode interview show they talk specifically about getting permission from Disney for the Multiverse episode (they didn't actually think it would be approved either).
https://www.youtube.com/watch?v=N1uI24zE-3g

Jedi

I can see Family Guy getting a lot of approvals because they are under the Fox umbrella.

However, I wonder more about South Park episodes because they seem more vicious and definetely weren't approved - Michael Jackson type episodes come to mind. I can see Comedy Central refusing to take episodes like that down and just using the argument of comedic parody vs infringement.

Two Listen

Jedi wrote: »

I can see Family Guy getting a lot of approvals because they are under the Fox umbrella.

However, I wonder more about South Park episodes because they seem more vicious and definetely weren't approved - Michael Jackson type episodes come to mind. I can see Comedy Central refusing to take episodes like that down and just using the argument of comedic parody vs infringement.

We might see that Comedy Central refused to take it down. We might not see that they had their legal team handling a bunch of shit behind the scenes to pacify things. I'm pretty sure that most larger companies who make a variety of anything entertainment related (movies, games, episodes for a TV show, comics, etc) have several claims per year that they have to deal with that aren't aired out to the public - and if they don't, it's because they were really careful in the "making of".

You also have to keep in mind, even if you do have the argument and you're pretty darn sure you're within your rights, someone can still sue you and fight it - and that costs money even from your end. (Hence, why I'm sure companies come to lots of out of court settlements, to avoid the hassles that come with the alternative).

Also, something like South Park has a long history of parody episodes. It's very clear that the purpose of the show is pretty much entirely to be funny, to parody shit, to make fun of stuff, etc. They're on "Comedy" Central, and have that blanket to help their case.

Many game makers do not have these things going for them. Now, that whole "court has costs" thing goes both ways - what are the chances of someone actually getting mad at you, a "little guy" and making a fuss over things? Probably next to nothing. In all realistic scenarios, you can probably not worry about it. But, if it were me (and this was for a commercial product), I'd come up with what I wanted to do and seek legal counsel just to be on the safe side.

leilei

id software gave a shit for that "one doomed space marine" in E1L3 in Duke Nukem 3D.

kat

The Family Guy/Seth MacFarlane team have mentioned in a number of interviews they actually have a team of lawyers available for consultation that tell them *exactly* what they can get away with. Matt Groening/Simpsons/Futurama Team, had/have exactly the same 'problem' - they had to get specific permission to do parodies of X-Files, to use Murdock himself etc.. etc.. Same goes for South Park guys. The broader problem is that in order to parody someone or something you'd likely be using a reasonably recognisable representation of their intellectual property in order to get the message across, so would be far more likely to fall pray to copyright infringement than defamation of character. It's by far the more easily dealt with through simply filing DMCAs, so there's barely any legal costs involved.

Jedi

The majority of what you say sounds true but i wonder how that applies to cases where its clear that southPark doesnt have permission, like while mj was alive and they are portraying him as a pedophile while he's on trial for the same thing. Things like that.

kat

You'd really need to speak with their legal council to get a definitive answer to that. It would also be prudent for you to do that for your own project BTW - 'parody' is not as clearly defined in law as one would think - whilst the principle has a definition in terms of what it is... whether something qualifies under the protection it affords is done largely on a case-by-case basis. If one thought there was the potential for a project to turn sour then that would be exactly the type of situation in which council should be sought. That's the reality of working in a market-space dominated by big corporations that own 99.99% of what we consume.

AlexLeighton

As a small developer, I think you really want to stay away from anything that could be seen as an infringement. Even if something you do is legal under fair use, a complaint may still be brought against you, potentially costing you huge amounts of money just to defend yourself. Keep in mind that it's often the group with the deepest pockets who wins.

Overlord

You don't need permission to do a parody, however, it doesn't mean you won't get sued. Parody is protected by the fair use doctrine and if a particular use is challenged, the judge must make a judgement based on the four criteria of fair use. If the judge decides that the work in question satisfies that criteria, then the use is fair and the defendant does not require permission. Otherwise, the plaintiff has a case.

So, you can do a parody, but do so at your own risk.