Brilliant New York Times Parody: Legal?

There is a terrific parody (or, perhaps, satire) of the New York Times available both in cyberspace and in print (over a million copies were distributed in cities nationwide, mostly New York and LA). (The Times is calling it a “spoof.”) This is detailed, careful artistic work: if you explore the site, you’ll see that the fake content goes several levels deep, and even knocks off the ads one commonly finds in the Times (or on New York subways). Here’s the rub: is it legal?

On copyright grounds, I think the spoof is safe, but it’s a close call. If it’s a parody of the Times, then the fake version is a fair use (after Campbell v. Acuff-Rose, parody is essentially paradigmatic fair use). If it’s satire: well, that’s a different story. The Ninth Circuit didn’t think it was fair use when The Cat NOT in the Hat! made fun of O.J. Simpson using rhyming, Seussian doggerel. Satire, courts seem to think, is gratuitous: it uses someone’s artistic creation (copyrighted) to poke fun at a different target altogether. Since the choice of weapon is nearly arbitrary, the resulting work infringes. Of course, the analysis gets harder when, as here, the accused parody makes fun both of its host and of society at large.

On trademark grounds, it’s less clear. The trademark doctrine of fair use (better called descriptive fair use / nominative use) is far less forgiving of infringement, even for parody, than copyright’s analog. When the parody confuses consumers, there’s essentially a sliding-scale, tradeoff analysis of the public interest in free expression against the public interest in avoiding consumer confusion. The challenge is that a socially critical work like the one here depends on (briefly) confusing consumers. If someone handed you a paper called “The Daily Ridicule,” with the headline “Iraq War Ends,” you’d probably throw it away. But when it’s the Times, with the same headline, you’re briefly thunderstruck, and you read it (and then throw it away). That moment of confusion – of Zen-like unmooring of assumptions – is precisely what makes this piece work and what creates risk under trademark law.

So, I’m waiting to see if a lawsuit comes out of this. This is social criticism at its most biting. IP law shouldn’t prevent it.

[Update - 2:40PM - I shamefully forgot to hat-tip Ken Marx. Also, we could talk about whether the spoof is a "use in commerce," but use is too painful to spend a lot of blog space on. I think it could cut either way, depending on one's sympathy towards parodies and one's views on TM use generally.]

4 Responses to “Brilliant New York Times Parody: Legal?”

  1. Ha! I love the “Maximum Wage Law Passes” article. That’s what this country really need.

  2. If you don’t mind me getting in a little practice before the copyright final exam:

    While parody is certainly the stronger argument, the newspaper seems a bit closer to a satire to me. I haven’t read that 9th Circuit case you mentioned, but Acuff-Rose only said that since satire, unlike parody, doesn’t require the creator of the second work to refer to the first work in order to make its point, the creator of the second work must have some justification for using elements of the first work in his satire.

    In this case, I’d say that the Times-SE creators have a decent argument: they wanted to satirize current events, which is very effectively done through the use of a newspaper. The effectiveness of the satire is partly dependent on tricking people into thinking they were reading real news stories. The NY Times is a universally recognized, highly respected newspaper, so imitating it disguises the fake news stories well. The Times-SE creators would probably also add something about the added impact of discovering the paper is fake and the moment of thought that it generates. The fact that the Times-SE was given away instead of sold works in its favor as well, since commercial uses weigh against a fair use finding (but do not make it presumptively so).

    The nature of the copyrighted work shouldn’t weigh very heavily here. Newspapers do contain protectible expression, but the question of whether the general layout and typeface of the NYTimes are protectible under copyright is a deeper question I don’t feel like getting into. The essential point is that the judge will look at whether the NYTimes is at the “core” of what copyright is meant to protect. My sense of the “core” is that it refers to creative expressions. The NYTimes’ layout and typeface are essentially creative decisions, but typefaces often get short shrift under copyright law and the layout is at least partly dictated by the content.

    The amount and substantiality of the copying shouldn’t weigh heavily against Times-SE either. They didn’t even copy the expression in any NYTimes article, only the general layout and typeface. It does evoke the NYTimes’ image, but the NYTimes doesn’t sell because of its layout and typeface, it sells because of the reporting and expression in its articles. I view this as less of a taking than what 2 Live Crew took from “Oh Pretty Woman” in Acuff-Rose.

    Times-SE’s ace in the hole here is the effect of its satire on the NYTimes’ market. The Times-SE is not meant to be a real newspaper and it is a one-time political statement. It reports fictional news stories, so Times-SE has a good argument that it cannot possibly compete with the NYTimes’ reporting and the use is “transformative.” Through satire, it adds to the original work, rather than “merely supersed[ing]” it, by causing readers to stop and think “what if this really was the news?” While there is a market for fake news (The Onion is one example), the NYTimes would have a stronger case if it offered some evidence that it meant to enter into that market in the near future.

    The first and fourth factors I mentioned have been the most weighty in fair use cases, so the fact that they don’t clearly militate against a fair use ruling should leave Times-SE optimistic. As for trademark, you’re on your own with that.

    That’s my quick, general view of things. If anyone sees a glaring error in there, please point it out! My outline will thank you.

  3. Hi Victor – I think your analysis here is good. One of the key questions is what the Times would identify (or, more accurately, what a court would accept as) its copyrightable expression. Given that copyright in news stories is typically thin, and headlines tend to get no protection at all, the Times likely has to fall back on look / feel. With that, and your good analysis of the first and fourth factors, I think the parody is in strong shape.

    One added thought would be: is the spoof parodying the Times as well? The NYT has been heavily criticized for its reporting in the run up to the current war; could the spoof be seen as critical commentary about this? If so, that only strengthens the fair use defense for the spoof. Thanks!

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