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Parody Doesn’t Infringe
Copyright law in the US is often referred to as a ‘thin’ right, since it has tendency to protect only exact replicas of an original work. For photographs, courts will only protect a work if someone ‘slavishly copies’ it. See E. Am. Trio Prods., Inc. v. Tang Elec. Corp., 97 F. Supp. 2d 395, 417 (S.D.N.Y. 2000) (“There is a very broad scope for copyright in [new] photographs, encompassing almost any photograph that reflects more than ‘slavish copying.’”)
DERIVATIVE WORKS
A derivative work is a remix that samples an original piece, without attempting to ‘slavishly copy.’ If a derivative work “recast[s], transform[s], or adapt[s]” the original, it does not infringe on the copyrights of the original (and, further, the derivative work is often eligible for its own copyright).
Where the derivative work is a parody of the original, it is even more likely to be non-infringing because (1) the First Amendment of the Constitution protects commentary such as parody, and (2) reference to the original is necessary for effective parody. The converse is also true: derivative works that lack parody are more likely to infringe the original.
NO PARODY → NO PROTECTION
For example, when Jeff Koons copied this old puppy photo (left) to make a sculpture (right), he infringed the copyright protecting the photo. The court…
