I alluded to this problem in the initial fair use post, but it deserves a bit more attention. While Weird Al has indeed made a fortune on parody, not all aspiring satirists are so lucky. The Air Pirates certainly did not get away with their parodies of Disney characters. While the courts have been reluctant to hear fair use cases, the cost of litigation makes the possibility of losing any challenge risky. As a result, parody, and other instances of what would appear to be fair use, is not as protected as you might think. If a copyright-holder takes exception to the material and decides to sue for infringement, the defendant must weigh his or her own resources against those of the plaintiff. For the most part, settlement often looks like a rational decision. James Boyle's The Public Domain contains an excellent example of such calculations. I won't reproduce the story in full (Boyle has released the book under a Creative Commons license, so feel free to look it up yourself), but suffice it to say that no matter how large a settlement figure may sound, in many cases the figure is still a small fraction of potential damages, legal fees, and court costs. One might well argue that those costs are unjustifiably high (and I might do so in a future post), but that's not a matter for the current tutorial.
So, given the risk of a suit, and the weak nature of fair use (an affirmative defense just isn't a right, no matter how you slice it), how does a guy like Weird Al make a career out of fair use? The not-so-secret secret is that he doesn't. Weird Al asks for permission. Before any of those much-loved parodies finds its way onto an album, Yankovic clears it with the original artist. Now, seeking permission in this way smacks of a certain amount of professional courtesy, so I don't want to criticize the practice itself. Instead, I want to call attention to the fact that the request for permission is not merely an act of professional courtesy, but also an attempt to block off any possible law suits resulting from an unhappy artist. Weird Al might win, but he also might lose any profits from the album to do so; the risk is just too great. Of course, for the most part, the original artists have been happy to allow the parodies, but occasionally, Weird Al gets a refusal (the most recent instance of such conflicts is documented here: http://alyankovic.wordpress.com/2011/04/20/gaga-update/ ), but it is typically not a problem.
The key thing to note here is that even for something seemingly clearly protected by fair use, seeking permission is important. Without that shelter, a parodist may rapidly find herself at the mercy of an expensive judicial system. Again, fair use is not a right, merely a defense. While those uses specifically picked out as fair by 17 U.S.C. § 107: “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research” all fall in line with preserving some public interest in creative works, those interests are not really served by the weak version of fair use codified in law. If commenting, criticizing, or research involves any reproduction, one might run afoul of an irate copyright-holder.
Notice that academic research also makes that list. Within academia, there is a culture of openness and discourse that encourages citation and quotation, so the risks are not really all that great. Nevertheless, in Infringement Nation John Tehranian documents a problem with James Joyce scholarship. It seems that Finnegans Wake is not public domain, and the Joyce estate is especially protective in restricting quotation or analysis of Joyce's work. (for a good summary, see this: http://entertainment.timesonline.co.uk/tol/arts_and_entertainment/the_tls/tls_selections/commentary/article2305747.ece ). One would think that academic scholarship would be a paradigm case for fair use. A proliferation of creative works is far less valuable if the community of scholars is unable to incorporate the work into the cultural and intellectual discourse. Certainly, to take John Stuart Mill's view that free expression is valuable because it helps us get at truth in some meaningful way, reading a text unlocks only part of its value. To read a novel, one enters into a kind of conversation with the author. Reading a novel along with some secondary literature broadens the conversation. Producing one's own secondary literature, and submitting it for the discussion of the community at large just adds more, more engagement, more conversation. Secondary literature also serves a didactic function; it teaches one how to read texts more deeply, giving the reader access to more layers of meaning and thereby deepening engagement with the text. Nevertheless, a protective attitude on the part of a copyright-holder brings the whole process to a halt.
I just can't help thinking there's something unfair about that...