Funny unless the joke is on you: parody exception in copyright law

After a long day at the university, do you often find yourself seeking entertainment in parody shows like SNL or South Park? While you may be a fan of these programs, you might not be fully aware of the legal issues they can raise. For instance, the majority of the spectators do not think about whether by the creation of the parody the rights of the original creator were harmed. Such legal implications go by unnoticed by most, whereas due to its popularity of parody it would be quite crucial for people to be informed of such implications. 

Parody is something that a majority of people seek out as entertainment to defuse everyday tension a bit. And what better to find than to humour themselves with the renowned characters of our time in a distorted context, to stumble upon a caricature of recent popular works of art or media?

In the legal context, a 'parody exception' refers to an exemption from copyright protection. Artistic and literary works which are rewarded copyright protection could be criticised and parodied in line with the principle of fair use. However, there is a certain tension concerning the topic between the fair protection awarded to artists for their works and the freedom of expression on the other hand. Such a tension in itself raises further questions, such as: Can parody really be considered a form of art, thus deserving protection? How does artistic expression contrast with the protection afforded to the original creator? What are the limits of this expression? 

I. What is the parody exception?

Parody is often categorized under the umbrella of fair use of copyrighted works. Fair use refers to the use of works in a transformative manner. Courts consider several factors when determining fair use, including the purpose of the use, the nature of the copyrighted work, the amount and substantiality used for the transformative work, and whether the usage damages the marketability or the reputation of the original work or the author.

The purpose of the parody exception, in particular, is to protect social and artistic commentary. It seeks to encourage cultural dialogue by allowing artists to critique, mock, or reinterpret existing works and even the authors themselves in the cultural realm. All acts necessary to create the parody itself, such as copying the work, are required to create a mocking, distorted version. The resulting parody can be published, performed, or made available to the public on an online platform without infringing the author's rights. All types of literary and artistic works, including any literary, dramatic or musical creations such as songs, film productions, theatre pieces or pieces of literature, can be made subject to parody. Makers of parody are to be treated as authors themselves, who can seek commercial gain from their artistic expression as long as the matter in which their works are expressed is indeed considered parody and its purpose is to provoke laughter and criticism from the audience. However, the resulting 'parody' might not be protected by copyright. Protection would depend on the degree to which the parody work is new or rather ‘transformative’, which further depends on the quality and quantity used of the original work. For instance, while a song can be a parodied version of a play or a book, making remarks on a more expressive form of art, such as paintings, which might invoke such protection. The creator of the parody, however, is not obliged to cite the author of the original work. There is no remuneration for the author of the original work either, based on the 'parody work'.

However, the parody exception is not without its limits. Confusion might arise concerning the original work and the parody that might infringe upon the rights of the original author, primarily if both were published to seek commercial gain. On that note, when it comes to commercial gain, authorisation might be needed from the original author. The predominant goals of parody are to humour the audience and seek laughter and incentives social commentary. However, the advertisement of such parody work could aim for commercial gain, which indeed diverts from the original goal and needs to be authorised, as it could be categorised as an unfair use of the original work. The one limitation which is brought up most often is connected to the moral rights of the author. The parody must not demean the character, degrade or distort the reputation of the work either. Such a limitation, however, is often disputed in court, as its boundaries are not clearly defined, leaving the line uncertain.

II. Why is the parody exception problematic?

That last exception leads us to the core of the problem. To better articulate the problem and provide definitions for the crucial terms used, the instrument of the ECHR (European Convention on Human Rights) will be used. This instrument is an international treaty which was brought into force to protect fundamental freedoms across Europe. A balance needs to be struck between freedom of (artistic) expression (protected by art. 10 ECHR), and one is right to their property, (protected by art. 1 of the Protocol 1 to the ECHR).

On the one hand, it can be argued that parody is an integral part of social critique and an essential element of democratic discourse in the artistic realm. It allows artists to push boundaries, question and dispute ideas, and make powerful statements in their works of art, thereby enhancing the creation of cultural works and triggering further development. Too strict a protection of property rights for authors could hinder such developments and suppress radical ideas, which could in turn diminish the concepts of 'parody and satire'.

On the other hand, from a more philosophical perspective, some theories would be more in favour of stricter protection of authorship of the original works. Artists invest a considerable amount of resources into creating their works, and it is the 'fruits of their labour' that are being criticised and ridiculed. Therefore, allowing someone to benefit from it without actually contributing to the efforts of creating such a product of 'intellectual labour' does not seem right. Moreover, some theories suggest an artwork can be seen as an extension of the self, thereby establishing a more emotional connection between the work and the author. Such a theory arguably views the use of such work, mainly if it aims to make a mockery of the author's work, as demanding.

Although both ends of the spectrum, as demonstrated above, have their own arguments, courts are in favour of the allowance of parody, thereby placing the threshold relatively high to admit 'demeaning character' in cases of parody. Meaning it is quite difficult for the author of the original work to prove that the effects of the parody had been detrimental to his character and reputation. Artists enjoy quite considerable protection when it comes to the form in which they may express themselves. Art may offend, shock, or disturb the public, seeking to evoke an emotional reaction from the audience to spark discourse. Therefore, the threshold, as mentioned before, is relatively high to find it demeaning or harmful to the reputation of the original work. Especially since such a threshold is always aligned with the social standards of the current time, meaning that to find something which would be so utterly despicable and shocking an expression in today's world to the majority of the public is arguably challenging. Due to the easy accessibility of online content, people get exposed to quite the spectrum of deriving views, amongst which there might be content which could be deemed as vulgar. Which in turn lessens the chances of them being introduced to something unheard of.

III. Works of parody we all know and love

In order to make the discussion a bit less abstract, let us have a look at a couple of examples of parody which are quite renowned. Two examples, which are quite popular and loved by all (or are they really) in the realm of parody are the following.

Saturday Night Live (SNL) has gained considerable status by producing parodic content in the form of television comedy, penetrating not only American but also global culture. They often use copyright-protected works in a transformative form, such as by rewriting the lyrics of famous songs, and portray public figures in a parodic manner, which makes the program fall under the parody exception. It is a perfect example of how controversial such protection for parody can be, as although it intends to make the audience laugh, the jokes might not always sit well. An incident dating back to April 2025, which caused considerable public uproar, involved actress Aimee Lou Wood being criticised for her appearance on the Show. Although the scene portrayed by actors on the Show initially parodied the series in which the actress starred (The White Lotus), it evolved into something far more personal, focusing on the actress's teeth and exaggerating this physical feature to make a mockery of her as a person. People have since voiced their discomfort with such a portrayal, and the actress herself has spoken out to describe the show as 'mean and unfunny'. This is a perfect example of how there is a fine line between parody, which seeks to elicit laughter in the audience and falls under the fair use exception, and that which perhaps exceeds its limits, where it could be considered demeaning to the character of the public figure. 

Another renowned form of parody, which is quite popular these days, is the show 'South Park'. Similar to SNL, the transformative nature of the show, often parodying public figures and sometimes large corporate entities, makes it fall under the parody exception. Fair use can be established in this case (strictly speaking), since the show does not use trademarked properties of corporate entities, nor does it use the names of public figures exactly; it only shows the likeness of real-life figures it seeks to parody, thereby deflecting any competitiveness in terms of financial gain which could exist between the original creator and the creator of the parody. Although the show cannot be legally condemned, it does not mean that its social impact has not been questioned. The Show's creators pride themselves on creating content as ‘outlandish’  as possible, describing this as the essence of their show and the key to their success. The content, albeit outrageous to the objects of the joke, is referred to as ‘so ridiculous’ and clearly made with the intent to create content of a laughing stock that no average person would believe it to be presented with facts. 

Such examples provide a clearer perspective on the topic. Parody is respected as an art form in itself by the most important group of people: the audience. The success of such content ultimately provides it with protection from claims that may be brought against it. Based on that it could be argued that it is indeed another form of art, as due to its popularity it provides incentive for further creation and by thus broadening the cultural spectrum, despite its questionable character.

IV. Parting words

To summarise, while parody is indeed provided an exception under the law, it is not without its limits. However, unless such limits are overstepped, the courts are more reluctant to establish ‘demeaning character’ in cases of parody to the author of the original protected work. Unless such parody resulted in detrimental reputational damage to his character or his work it is not likely that such claims will have standing.  Precisely because parody is recognised as a form of art by the most important group of people: the audience. Due to its popularity, it triggers creative impulse in society, spurred on by its social effect; others get the incentive to further create thereby broadening cultural heritage.