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"Just because something is transformative, doesn't make it fair use," said Dale Nelson, vice president and senior intellectual property counsel at Warner Brothers Entertainment, at an industry conference.
In a panel session at the 2016 AIPPI World Congress in Milan yesterday, September 20, satire and parody were discussed from an IP perspective.
Nelson explained the challenges of creating parodies in the US in relation to different types of IP: "Using a copyrighted work in a parody can sometimes qualify as a fair use, which is a defence to a claim of copyright infringement."
She added: "Using a trademark in a parody sometimes does not create a likelihood of confusion, which can defeat the claim of trademark infringement."
By using an example from the US Supreme Court in the Campbell v Acuff-Rose Music case in 1994, she further explained the US courts' definition of parody as "the use of some elements of a prior author's [work] to create a new one that, at least in part, comments on the author's work".
Making a clear distinction in the session, Nelson explained that a parody uses a work to comment on that same work, whereas a satire uses a work to comment on something else.
"Either can be fair use, but satire requires more justification for the act of borrowing," she explained.
She discussed the definition of transformative, explaining that the new work must add something new and alter the first with a new expression, meaning or message.
The session covered copyright, trademark and dilution.
The 2016 AIPPI World Congress ended yesterday.