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When Is Parody Fair Use? Author(s): Richard A. Posner Source: The Journal of Legal Studies, Vol. 21, No. 1 (Jan., 1992), pp. 67-78 Published by: The University of Chicago Press for The University of Chicago Law School Stable URL: http://www.jstor.org/stable/724401 . Accessed: 27/10/2011 09:08
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I. is PARODY imitation. And imitation, when it is of an expressive work such as a novel or play or movie, is a taking. The parodisttakes from, or if you wish "copies," parts or aspects of anotherexpressive work. If that work is copyrighted, why isn't the parodistan infringer?The usual answer is that the use a parodist makes of the parodied, that is, of the copied work, is a "fair use" within the meaningof copyrightlaw and is therefore lawful.' The answer does not always succeed in persuading courts. Many alleged parodies have been held to be copyrightinfringeinsteador as well and I shall ments-sometimes trademark infringements discuss parodies of trademarkedworks along with parodies of copyrightedones. law Economics can clarify the issues of copyright(and trademark) presented by parodies. Buildingon earlierwork,2I offer an economic analysis that may help both to explain and to improve the legal treatmentof parody. I argue that the copyrightexemption for parodiesis and should be very narrow. In particular,it should not extend to cases in which the parody does not attack the parodiedwork but ratheruses that work to attack somethingelse. But to explain all this, it will be necessary first of all to develop a clear idea of what a parody is and of what the various
* Judge, U.S. Court of Appeals for the Seventh Circuit; Senior Lecturer, University of Chicago Law School. I thank William Landes for valuable discussion of the subject and extremely helpful comments on previous drafts and Kazuhiko Sano for excellent research assistance. See, for example, Sheldon N. Light, Parody, Burlesque, and the Economic Rationale for Copyright, 11 Conn. L. Rev. 615 (1979). 2 William M. Landes & Richard A. Posner, An Economic Analysis of Copyright Law, 18 J. Legal Stud. 329, 359-60 (1989); Richard A. Posner, Law and Literature: A Misunderstood Relation 349-51 (1988). [Journal of Legal Studies, vol. XXI (January 1992)] ? 1992 by The University of Chicago. All rights reserved. 0047-2530/92/2101-0009$01.50 67



kinds of parody are. Here one is aided by discussions of parodyby literary theorists,3as well as by judicial discussions and commonexperience. Parody is best understood in terms of one of its synonyms: it is a "take off"-a take off on anotherwork or on a genre of works. It takes characters,incidents, dialogue, or other aspects of the parodiedwork(s) and moves on from there to create a new work. Generally there is an incongruitybetween the borrowed and the new elements, as where the parodistsets aboutto "graspthe essentials of the style of a given [serious] authoror a school of authors, and then proceed to concoct an outlandish episode which is expressed in that style."4 "[T]he highestkind of parody may be defined as a humorous and aesthetically satisfying composition in prose or verse, usually writtenwithout malice, in which, by means of a rigidly controlled distortion, the most strikingpeculiaritiesof subject matter and style of a literary work, an author, or a school or type of writing, are exaggerated in such a way as to lead to an implicit value judgmentof the original."5 So there is both a taking from a previous work and an injection of creativity, large or small. Let us start with the taking,the most problematic aspect from a copyrightperspective. Often what is taken is none of the copyrightedelements of the parodiedwork(s).This is especially likely if what is being parodiedis not a single work but a writer's (or painter's, or composer's) entire oeuvre-in short, his style-because style is not copyrightable;or an entire genre, since genre (for example, the sonnet, the Gothic novel, the musical comedy) is not copyrightableeither. So Max Beerbohm's splendidparodiesof Henry James, such as "The Mote in the MiddleDistance" and "The Guerdon,"would not be within range of an infringementsuit. But neitheris a title copyrightable,or stock characters (for example, the hard-boiledprivate eye, the miser, the Latin lover), or the standard plots (star-crossed lovers, and so forth), so a parodist who took only these features from a copyrightedwork would not be an infringereither. The risk of infringementarises only when the parodist takes copyrighted elements of the parodied work. Arguablythis taking should be deemed an infringementno matterhow great the parodist's creative in3 See, in particular, Linda Hutcheon, A Theory of Parody: The Teachings of TwentiethCentury Art Forms (1985); G. D. Kiremidjian, The Aesthetics of Parody, 28 J. Aesthetics & Art Crit. 231 (1969); J. G. Riewald, Parody as Criticism, 50 Neophilologus 125 (1966); Symposium on Parody, 13 S. Rev. 2 (1980). The extensive legal literature is well represented by Richard A. Bernstein, Parody and Fair Use in Copyright Law, 31 Copyright L. Symp. (ASCAP) 1 (1984). 4 Kiremidjian, supra note 3, at 235. 5 Riewald, supra note 3, at 128-29.



put. The combinationof copyrightedelements with fresh creative input is simply a derivative work, and moderncopyrightlaw assigns the exclusive rightto make and sell derivativeworks to the owner of the copyright on the originalwork. It does not matterhow much "better," or commercially more valuable, the derivative work is. Transactioncosts are minimized when all rights over the copyrightedwork are concentratedin a single pair of hands. So, primafacie, a parodythat uses copyrightedelements is an infringement: the parody is a derivativework and the copyrightholdertherefore controls it. However, the fair use doctrine sometimespermitsthe appropriation of parts of a copyrightedwork, and we must consider whether parody might, always or sometimes, be fair use. The sense and, hence, scope of the fair use doctrine are most easily understood in economic terms.6 A use is fair in these terms when the costs of transactingwith the copyrightowner over permissionto use the copyrightedwork would exceed the benefits of transacting.These benefits include not only (as mentioned) economizing on other transactions but also, and more important,stimulatingthe productionof intellectual as propertyby enablingits creators to appropriate privategain the social value of their creation. The book review is the simplest example of fair use. There are three related reasons for thinking that a book reviewer should be allowed to quote from the book without the author's (or other copyright holder's) permission: 1. Most book reviews increase the sales of the book being reviewed, so that imposingtransactioncosts on the reviewerwould confer negative benefits on the author. Even unfavorablereviews stimulatesales, at least when the alternative would be no review at all. Book reviews are free advertising. 2. They are especially credible advertising, moreover, because they are not controlled by the advertiser(that is, the publisherof the book). The credibilityof book reviews, and hence theireffectiveness as advertising, would be underminedif a reviewer needed the author's permission to quote from the book. Indeed, if book reviews were censored by book authors, reviews would be no more credible a form of advertisingthan ordinary paid advertising. Therefore, authors as a group would suffer from a rejection of the privilege of fair use for book reviews even if an occasional authorgained. 3. When a review does reduce the sales of a book, it does so not

Landes & Posner, supra note 2, at 357-61.



because it supplies the demandfor the book-rarely is a book review a close substitute for the book-but because it points out flaws and so withoutundermining rewardsfor creatthe provides valuableinformation ing worthwhileintellectual property. The harm to an author that comes from exposing the weaknesses of his effort-from drawingattention to the lack of value of the intellectualpropertyhe has created-is not the kind of harm that copyright law, whether analyzed in economic or any other terms, seeks to prevent. Of course, not all books that containerrors are valueless; indeed, books can have great weaknesses yet still be socially valuable because of offsetting strengths. But such a book will not be devastated by negative book reviews that stress its weaknesses. The marketplacein ideas and opinionswill produceother reviews that emphasize its strengths. This analysis of how the doctrine of fair use applies to book reviews does not transpose easily to the parody setting. Points 1 and 2 do not hold at all because parodies are generally not a method of acquainting people with the characterof the parodiedwork. On the contrary, since effective parodyrequiresthat the audiencehave some and often considerable familiaritywith the parodied work, works are rarely parodiedthat are not already very well known, although the parody may introduce some membersof its audienceto the originalworkfor the firsttime. Point 3 may hold, because parody can be an effective method of ridicule, and ridiculeis a formof criticism.' But here three qualifications necessary. are and least, parodyis in generala limitedformof criticism,because First, of its focus on idiosyncrasy. "[P]arodynaturallytends to be the watchdog of established forms, a correction of literaryextremes."8It "tends to confine itself to 'writerswhose style and habitof thought, being more markedand peculiar, was more capable of exaggerationand distortion.' This tendency seriously restricts the scope of critical parody because it seems to ignore the fact that the absence of any 'markedand peculiar' style and habit of thought is a symptom of mediocrity rather than of talent."' Beerbohm'ssplendidparodiesof HenryJamesare criticismonly in philistine eyes; to the lover of James's late novels they are goodnaturedevocations, reminders,of the master's distinctive excellences. Second, a parody, unlike the book review, may supply a part of the demandfor the originalwork. The movie Abbottand Costello Meet Frankenstein, a parody of the earliermovies Frankenstein,Dracula, and The
Kiremidjian, supra note 3, at 234. Riewald, supra note 3, at 132 (footnote omitted). 9 Id. at 133 (footnotes omitted). This is overstated. There is some parody of sheer Dubliners, the Gerty MacDowell episode in Ulysses, and much of mediocrity-Joyce's dadaist and postmodernist art come to mind. But this is parody as criticism of a culture rather than of a specific work, so there will rarely be any question of copyright infringement.
7 8



WolfMan, reproduces the principalcharactersand themes of the parodied works in a feature-lengthformat that the viewer might prefer to seeing (or, more likely, seeing for a second or a third time) all three of the originalworks. As in this example, virtuallyall parodiesare humorous and many people may prefer a humorousto a serious version, especially when the "serious" version is itself intended purely as entertainment and is without moral or intellectualpretension. Some parodiesare erotic versions of a nonerotic original. They may supply the demand for the originalon the part of the segment of the populationthat likes its entertainmentspiced with sex.'o Third, a parody does not always ridicule or otherwise criticize the parodiedwork. On the contrary,it may use that work-treating it as the standardof excellence-to disparagesomethingelse, as whereT. S. Eliot in "The Waste Land" employs parodies of Shakespeare, Spenser, and other classic authors to criticize the sordidness and spiritualemptiness of modern life. In other words, the parodied work may be the weapon rather than the target-in which event why should the owner of the originalbe reluctantto license the parody?Or, as with Abbott and Costello Meet Frankenstein, and perhaps, as I suggested, with Beerbohm's parodies of James, the parody may not be a work of criticism at all; its only object may be to amuse. The analysis to this point suggests the following limitations on the applicationof the fair use doctrine to parodies. First (and most radical), the doctrine should provide a defense to infringementonly if the parody uses the parodiedwork as a target rather thanas a weapon or, once again, as in Abbottand CostelloMeet Frankenstein, simply as a resource to create a comic effect. There may of course be problems both in distinguishingthese uses and of overlaps between them. Second, the parodist should not be allowed to take so large a fraction (somehow computed)of the copyrightedfeatures of the originalwork as to make the parody a substitute for that work."11 Otherwise, he could
This, rather than judicial prudery (as conjectured in Elliott M. Abramson, How Much Copying under Copyright? Contradictions, Parodoxes, Inconsistencies, 61 Temp. L. Rev. 133, 172 (1988)), may explain why, as we shall see, the majority of the erotic parodies challenged have been held to be infringing. " Light, supra note 1, properly emphasizes the importance of the parody's substitutability for the original work, but his conception of the parodies that should be protected by the fair use doctrine is too broad. "[A] work qualifies as a parody if it takes for humorous purposes, and the humor depends, to some degree, on audience recognition of the work from which material is taken. . . . [I]f the taking is for the purpose of humor or criticism, and it makes some alteration in the original to that end, then it is a parody." Id. at 632, 634. Light places too much weight on the motives of the parodist; often they will be hopelessly mixed.



reproducean entire copyrightedwork with impunitysimplyby givingthe characters funny names or having them speak in comical accents. By doing this he would entice the silly or vulgarmembersof the audienceof the originalwork-and they may be a substantialfractionof the potential audience. This would be the literary equivalent of multiplyingone side of an equation by - 1 or transposinga musical work written in one key into a different key. The parodist should be entitled to take from the originalno more than is necessary to make the parodyeffective. I admit this is a vague criterion. Third (a corollary of the first point), the fact that the parodistappropriates either a small relative or a small absolute numberof the copyrightedfeatures of the originalwork should not be relevantto fair use. It is true that the less he takes, the less likely he is to be siphoningoff the audience for the originalwork. But as in the law of larceny, so in the law of copyright, there is (and should be) no privilegefor stealing small. The less the parodist wants to take, the easier it should be for him to obtain a license from the owner of the copyrighton the originalwork. Only if the parodistis seeking to ridiculethe originalworkis a markettransaction infeasible and an involuntarytakingthereforejustifiable;and-to repeat point numbertwo-it is justifiableonly to the extent necessary to remind the parodist'saudience of the parodiedwork-a criterionindependentof the relativeor absolute amountof the originalworktakenby the parodist. If the parodistwere permittedto steal more than he needed, then, even if the amountof the originalwork thathe took was small(albeitmorethan he needed to take), there mightbe an excessive allocationof resourcesto the creation of parodies, since in alternativeactivities the parodistwould have to pay for all his inputs. It is true that once information,including the information(broadly defined) that we call intellectual property, is produced, the social cost of using it is zero. But this means that intellecfrom a tual propertythat is sold at a positive price may be underutilized social standpoint. If all but one form of intellectualproperty is priced, dumpingthe remainingform into the public domain,where it can be used without being paid for, may cause the priced forms to be even more underutilizedfrom a social standpoint.Underutilizedand also underproduced, as potential buyers of this intellectualpropertyswitch to its free competitor. Four objections to my threefoldrecipefor fair-useparody(the parodied work must be target not weapon, the amount taken from the original must be the minimumamount necessary, and the relative or absolute minutenessof the amounttaken will not redeemthe infringement) be can The firstis that, since effective parodyrequiresthatthe origianticipated. nal work be known to the audience, the only works that will be parodied



are originalworks,12 implyingthat the copyrightholder will have reaped his just rewardand should not be entitledto insist on a shareof the profits of the parody, viewed as a derivative work. This objection ignores the distinctionvital in economic analysis between the ex ante and the ex post perspective. Viewed ex post a successful work of intellectualpropertya Broadwayhit, a best seller, a hit song-may appearto confer a windfall of gain on the creator. But, ex ante, the creatorfaces a distribution possible outcomes, and if the uppertail of the distributionis cut off, the mean of the distributionwill be lowered and the incentive to create intellectual property reduced (unless the creator assigned a zero probabilityto outcomes in the uppertail). This also answers a second objection:that if the parodiedwork was a flop and the parody is a success, the only creativity that ought to be rewardedis that of the parodist. The third objection, which has greatest force against my proposal to exclude from the fair use doctrineall parodiesin which the parodiedwork is a weapon, whether of social, political, or aesthetic criticism, rather than a target, is that freedomof expressionwill be curtailedif the creation of parodiesis burdenedby the costs of transactingwith and payingroyalties to copyrightholders. But, as we do not suppose that writers should be allowed to steal paperand pencils in orderto reduce the cost of satire, neither is there a compelling reason to subsidize social criticism by allowing writers to use copyrightedmaterialswithout compensatingthe copyrightholder. (Granted,the cases are not identical. Intellectualproperty is a public good. A pencil is not. If you take my pencil I cannot use it, but if you take my intellectual property I can still use it-but my incentive to create it will be diminishedif I cannot make you pay for it.) Recall in this connection that it is possible to parody an author, a genre, even an individualwork without takingany copyrightedmaterialsat all. The point is not that parodies in which the parodiedwork is a weapon ratherthan a target lack social value, which shouldin principlebe traded off against any diminutionin the copyrightowner's revenues as a result of the parody's siphoningof the audiencefor his work. The point is that there is no obstructionto letting the marketmake the tradeoff. There is an obstructionwhen the parodiedwork is a target of the parodist's criticism, for it may be in the private interest of the copyrightowner, but not in the social interest, to suppresscriticismof the work. It is doubtfulthat this problemwould be fully solved without an exemptionfrom copyright protection even if the parodist could transformthe social value of his
12 Stated otherwise, if the parodied work is obscure, the cost of effective parody will be higher because the parodist will not be able to "free ride" on the audience's knowledge of the parodied work.



work as criticism into private value and thereforecompensatethe copyright owner for the diminutionin the latter's revenues as a result of the criticism. The social product is diminishedif persons are able to exact compensationfrom truthfulcritics of their failings, for such a right reduces the incentive to produce truth. Last, the general argumentagainst broad copyrightprotection13--that its benefits in increasingthe rewardsto intellectualcreativity are offset by its costs in raising the price that authors must pay for an essential input into their work, namely the work of previous authors-may seem to argue for a broad fair use privilegefor parody, a uniquely derivative form of intellectualproperty.The argumentagainstis that the more narrowly copyright protection is defined-and earlier mention of the noncopyrightabilityof titles, stock characters, standardplots, styles, and genres should remindthat, quite apartfrom the time limit on copyrights, copyright protection is rather narrowlydefined already-the less need there is for a special privilegefor parodists. The essential distinctionbetween a book review and a parody should now be clear. The former has to "steal" from the copyrightedwork and thus (but for the defense of fair use) infringe copyright because it is introducingthe work to its audience. The latter presupposes the audience's acquaintancewith the work and thereforethe need to steal is much less. is The parodyingof trademarks a rich source of litigationand presents issues analyticallysimilarthough not identicalto those presentedby the parodyingof copyrightedworks. Two types of trademarkparody must be distinguished.In one, the parodist is himself a seller of products or services (other than intellectualproperty),and here the dangeris of confusion as to source. For example, if a fast-foodchainoffers a "McBagel," some customers may think that it is doing so underlicense from McDonald's. If, however, a seller of tee shirts with humorouslegends-a form of intellectual property-stencils on the shirts "I Like Cocaine" in a style reminiscentof Coca-Cola'sadvertisingslogan,few if any consumers will think that the Coca-Colacompany is the produceror licensor of the shirts. This is a trademark parodyof the second kind, where, with source confusion not an issue, the analysis is parallelto that of copyrightparodies. Parallelin economic terms-not necessarily in legal ones. For tradeas marklaw does not protect trademarks intellectualproperty,that is, as


Stressed in Landes & Posner, supra note 2; and in Posner, supra note 2, at 343-48.



independentcreative works, but only as productor service identifiers.14 However, a doctrine of trademark law (technically, of state unfaircompetition law) that has no counterpartin the copyrightfield, that of "dilution" of the trademarkowner's "good will," mightgive the CocaCola company some relief in the case just put. The idea is thatthe reputation built up by Coca-Cola may be impairedby the association of its trademarkswith shoddy or sleazy activities, such as the trafficin illegal drugs. The idea can be given an economic form. A trademarkseeks to costs by providinga compact, memorable,and economize on information identifier of a product or service. The economy is less unambiguous when, because the trademarkhas other associations, a person seeing it must thinkfor a momentbefore recognizingit as the markof the product or service. There is an analogy to the point that languagepurists make when they object that using "disinterested"as a synonym for "uninterested" blurs the originalmeaningof disinterested(which is "impartial"). Might a similar notion, lacking though it does any official standingin copyright law, explain the cases in which erotic or obscene parodies are held to be copyright infringements?The notion would be that the association of, say, Mickey Mouse with sex would blur the image of childish innocence that Walt Disney sought to create for his animated cartooncharacters.Against this it can be arguedthat creatorsof intellectual property should not be allowed to control the public image of their propertyby forbiddingothers to suggest variantimages of it.15The argument seems decisive, when we consider that the applicationof the concept of dilution to copyrightedworks would imply a rightof action even if the parodistdid not take any of the copyrightedelements of the original work: suppose someone made a movie called Bambibut the centralcharacter was a prostitute ratherthan a fawn. This points up a difference in treatmentof copyrightand trademark the appropriate parodiesunderthe doctrine of fair use. The Coca-Cola example suggests an argument that, paradoxically, would, if accepted, grant a broaderdefense of fair use to off-color and

14 This is not quite true. Trademarks are sometimes printed on articles of clothing to enhance the value of the clothing, and when that is done the trademark is a form of intellectual property rather than a source identifier: no one supposes that a shirt with the Coca-Cola logos stenciled on it is manufactured by the Coca-Cola company. "5This, by the way, is an objection to the doctrine of moral rights, which allows a creator of intellectual property to forbid the mutilation of his work even after he has parted with the copyright. The mutilation may be a criticism. Perhaps the saliency of freedom of expression in our legal traditions explains the reluctance of American judges and legislators to receive this Continental doctrine into American law.



otherwise disreputablecopyright and trademarkparodies than to decorous ones. Grantedthat a shirt stamped "I Like Cocaine" or an obscene version of Walt Disney's cartoons would be a derivative work of the or originaltrademarked copyrightedwork, it is a derivativework that the owner of the original could not himself exploit directly or indirectly, because of the ill will that would accrue to him from the respectable segment of society. The work can be developed, and its social benefits (for in an economic analysis the preferences of the vulgar count in the calculation of social welfare along with the preferences of the refined) thus realized, only if the trademarkor copyrightowner is forbidden to control disreputablederivative works. For only then can they be developed without offsetting costs to that owner (if they were not fully offsetting, he would license the derivative works). The objections to the for proposalincludethe difficultyof defining"disreputable" this purpose and the fact that allowingfree use of copyrightedworks for disreputable parodies would subsidize those parodies at the expense of others. But the subsidy might be appropriate offset the disincentiveof the creator to of the originalwork to produce this type of derivativework. The real objection to allowing the erotic parody to invoke fair use is different. It is, as mentionedearlier, that erotic parodiesfill a part of the demand for the parodied work itself and thus reduce the copyright holder's revenues on sales of the originalwork and not just of derivative works. II. Let us see whetherthe distinctionssuggestedby economic analysis are mirroredin the cases. A complete answerwould requiretrudgingthrough few reported the cases one by one, and althoughthere are remarkably cases-I can find only fifty-nine, after eliminatingduplication(the same case in different proceduralstages, or multiple suits to enjoin the same parody)"6-each involves a different pair of parodying and parodied works, and many have been discussed in detail elsewhere.1 I shall content myself with a few generalobservations. First, all the reportedcases involve popular rather than high culture, even though there is an enorOne reason is that high-browparody mous body of high-browparody."8 the copyrighton the parodiedwork even primafacie (that rarelyinfringes
16 A list of the cases is available from me upon request.

For example in Bernstein, supra note 3. After (1960).


"8 See, for example, Dwight Macdonald ed., Parodies: An Anthology from Chaucer to



is, without regard to the privilege of fair use). The reason is that the works parodied-whether a work of music, of art, or more commonlyof literature--usually are rich in identifiable stylistic characteristics that can, without infringement,be taken in order to remindthe readerof the original;for remember that style is not copyrightable.Another reason high-browparody rarely infringesis that, unlike low-brow parody, very often it really does criticize the original:high-browaudiencesbeing more interested in issues of tastes and standardsthan popularaudiences are.19 Still anotherreason is that a high-browparodyrarelyreplacesthe demand for the original.The clearest example is parodiesof novels. Few parodies are long, because the comic exaggerationthat is the essential technique of parody gets tiresome fairly quickly; hence the parody of a novel will invariablybe too short to replace the original(there is an analogy to the book review). Finally, when high-browparody uses an originalwork as a weapon ratherthan as a target, often the originalis a work in the public domain, and the parodist's point is precisely the decline in standards since some Golden Age of refinement:so it would not have suited T. S. Eliot's purposes in "The Waste Land" to quote works recent enough for copyrightto have subsisted in them. The reported cases are divided almost equally between copyrightand trademarkcases: thirty and thirty-four,respectively.20 In both groups, the (alleged) infringerwins about half the cases.21Erotic or pornographic parodiesare found in six of the copyrightcases andthreeof the trademark owner winningin five of the nine. cases, with the copyrightor trademark Of particularinterest is the breakdownbetween cases in which the parodied work is a target and cases in which it is a weapon to attack or criticize other things (or perhaps just an effort to create a humorous
19 A low-brow exception is Mad Comics' parody of the television series M.A.S.H., discussed in Ziva Ben-Porat, Method in MADness: Notes on the Structure of Parody, Based on MAD TV Satires, 1 Poetics Today 245 (1979). More common is the parody of the Icelandic sagas in the quondam television series Monty Python's Flying Circus. Few members of the television audience have heard of the Icelandic sagas, much less read any of them. To the audience, there is no parody of a literary work--just a madcap satire of Scandinavian stolidity and bleakness. 20 The sum exceeds fifty-nine because some cases involve charges of both copyright and trademark infringement. 21 The copyright owner won in sixteen out of the thirty copyright cases, the trademark owner in seventeen out of the thirty-four trademark cases. That in litigation between private parties (as opposed to cases in which the government is a party) the plaintiff will win about half the cases is predicted, on economic grounds, in George L. Priest & Benjamin Klein, The Selection of Disputes for Litigation, 13 J. Legal Stud. 1 (1984). In speaking of the "copyright owner" or "trademark owner," I mean of course the owner of the copyright or trademark on the parodied work.



of work). The heavy preponderance both the copyrightandthe trademark cases is in the target category: for the copyright cases the figures are cases thirty-twoand three, so twenty-threeand seven, for the trademark for all together fifty-five and ten. The explanationfor the imbalancebetween target and weapon cases may be, as suggestedearlier, that a market transaction is feasible in the latter but not the former, permittinga sharper definition of property rights and therefore reducing the uncertainty that begets litigation. The defense of fair use, which qualifiesthe copyright or trademarkowner's property right, has, I have argued, no properplace in a weapon case. Therefore,his propertyrightis clearer-cut and there should be less litigationover it.