Parody and legality

[mollyringwraith]

Questions for those of the legal persuasion:

People have asked me when I'm going to "publish" my Lord of the Rings parodies. Some have gotten almost belligerent about it: "Why aren't they published yet??! What are you waiting for???!!" and so forth. :) I kind of figured I couldn't publish them, since they use names and plot points that I didn't

Comments

[ctrl_a]

I'm just a law student, so I'm not going to go into too much depth because what I say will be of limited reliability anyway, but... My impression is that while parody does get a break, you might have a harder time because your works don't stray that far from the original. Yes, it probably doesn't hurt the profits of the real thing, but it is still trying to achieve the same thing: entertain the same audience (or a subset thereof). I'm not sure how much courts would want the parody to have some kind of "social value" (or social commentary?), or whether they'd want to make that kind of judgment at all, but it's something to think about. But I'm pulling this almost completely from a single case because I just happened to have read it yesterday, so don't be discouraged. It'd be awesome if someone could come and prove me wrong.

Another thing: most people when it comes to fanfic and related fanworks tend to think copyright is the biggest issue, but I think trademark is another big concern. And there's no such thing as "fair use" in trademark. There may be other loopholes, of course, but you'd have to look at other things, like likelihood of confusion ("Uh, yeah, this is totally the real movie script.").

Just throwing some possibilities out there. Fact of the matter is, fair use is one of the fuzziest things in the world, and not extensively litigated in the area of fan creations.

[mollyringwraith]

Hmm, so the use of the character and place names might be where I impinge on trademark?

In any case, thanks for answering--it does seem a very fuzzy area. Maybe I can make legal history. ;)

[ctrl_a]

Yeah, I'm guessing there are trademarks on some of the character/place names. The problem with trademarks is that companies have to defend them, otherwise they lose their rights (all the classic examples of trademarked names becoming synonymous with the generic product, like Kleenex, Band-Aid, etc.). I don't know much more about trademark law beyond that, though.

Making legal history that weakens the copyright stranglehold on creativity in the U.S. is always a good thing. ;)