Wednesday, July 11, 2012

If you think you're creating a parody, read this post

"What distinguishes the unhappiest person? Smoky eyes and chic up-do. Evening glam."

Someone, somewhere, has come up with the idea of putting together two completely disparate sources: the philosophy of Søren Kierkegaard and the tweets of Kim Kardashian. One example of the result is above: it combines a reference to Kierkegaard's "The Unhappiest Man" with one of Kardashian's July 9, 2012 tweets.  And I'll let you decide whether @KimKierkegaard's use of them is genius or banal, but it's definitely a perfect example of a parody.

Let's look at why.

The general rule in the USA is that if you use my intellectual property you had better have permission: either from me, or from the law. Whether you and I agree with this is irrelevant because the law is clear: Kim Kardashian's tweets are creative works and protected by copyright. So @KimKierkegaard is definitely infringing by using a substantial part of one of her tweets in this one.

Let's presume Kardashian hasn't given permission, so that's out. That leaves legal defenses. One big category of legal permissions to use someone else's work is fair use, and parody is one of the most popular categories of fair use. But what creators think is a parody and what the law says is a parody are often two completely different things.

Put simply, a parody is a new creative work that ridicules or makes fun of someone else's creative work. (For a slightly longer description see the Stanford Law School link below). Whether something is a parody is always a really fact-specific situation, and there are hundreds of cases about this. But there are a few principles that we can apply to most settings and create some good guidelines.

  1. Parody has to evoke the original creative work. Here that's clearly happening: you see it and are immediately reminded of the things Kardashian writes, and more generally about her as a person.
  2. Parody has to make fun of the original work. @KimKierkegaard is definitely doing that: clearly the intent is to present Kardashian as banal by juxtaposing the tweets against quotes that are designed to make them seem even more so.
  3. The result is a new creation. Even though it may contain nothing more than the two original sources mashed together (I can't find the source for the Kierkegaard so it may not be 100% quoted), the new work is definitely a new creation under the law.
If she knew about this account, Kim Kardashian might not like it. But because copyright law protects the right to create a parody, there would be nothing she could legally do to make it stop.
Incidentally what I've done by reproducing the posts here is an example of another major category of fair use: criticism and comment. And Kierkegaard's works are in the public domain, which is another type of permission under the law. I'll discuss these both in more detail in future posts.

Stanford Law School review of fair use (including parody)


  1. An interesting post - though it may be of interest to know the law regarding copyright works a little differently in the UK (I actually meant to post a comment as such the other day on another post) and we have a greater amount of give and take regarding parody and satire - which is unusual as we have no actual laws regarding freedom of speech.
    Thanks for taking the time to make your blog though - I feel for anyone working in the creative industries (and particularly online in the modern age), it's something of a MUST read!
    looking forward to reading more!

    1. Cyrus: Thanks for the comment. At some point I'm thinking I might do a comparative law discussion for people outside the USA for just this reason: the UK to my knowledge has wider parody rights, and a fair dealing permission (as opposed to a fair use defense), but the libel laws are much stricter so you have to be much more certain that you're doing the right thing.

      Thanks for the read, too, and feel free to share with friends (/shameless). Check back soon for more posts: unless I get sick or I'm on an international flight I should be posting every weekday.

    2. I think that'd be a good one! - and as for popping back I'm already subscribed. Heheh.
      I'm not sure if you covered it on the 'content scraping' post or not, but I know a lot of people that would like to know more about how to combat image theft (photographers / digital artists and the likes) as I know from experience a good deal of services (aside from the larger social networks) can be extremely lax when dealing with the problem.

    3. Interesting idea on the photography thing. I'll give it some thought on how to address. I imagine I'll revisit a lot of the same themes throughout the year as new wrinkles arise (like this one), new ideas come to light, new cases come out, etc.

  2. Awesome! Yeah, there's definately a lot of possibilities for various posts. Looking forward to whatever you come up with though, and should I find anything interesting for you to consider as a topic I'll be sure to drop a comment.

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Thanks for commenting. Posts and comments aren't legal advice; requests for legal advice in the comment probably won't get answered. Sorry to have to do this but someone someday is going to make me glad I did...