This will probably be a fairly bizarre week. It's the last full week of school for the year; it's the beginning of the end-of-the-year rush at the Supreme Court; there are several significant copyright matters around the circuits that are into the normal decision timeframes for the respective courts; the wrong nuclear button has been pushed in the Senate (the one for self-immolation for the self-aggrandizing SOBs would have been a better choice… and I have no favorites between the parties).

In any event, to return to a theme explored some time back in the Fan Fiction thread,

What's the difference between a parody and a satire?…. [A] parody, according to Oxford, is the imitation of the style of a particular writer with deliberate exaggeration for comic effect; while a satire is the use of humour and exaggeration to to expose and criticise stupidity and vices.

"Davis Sweet: The Baloney Code," Grumpy Old Bookman (19 May 2005). Sadly, this is both consistent with everything I ever learned studying literature and almost precisely the opposite of the definitions used by US courts when distinguishing "parody" from "satire" for purposes of evaluating a fair use defense to copyright infringement. Needless to say, I'm not please.

On the other hand, I'm not pleased that US copyright law tries to distinguish between satire and parody in the context of fair use in the first place. It seems to me that both satire and parody—even when not "funny," even when scatalogical, even when describing "big hairy women"—are precisely the kinds of things that both the First Amendment and the IP Clause are supposed to encourage. In fact, in some senses of the term the best satires and parodies are extremely unfair to the original, or at least to attitudes perceived in the original by the author(s) of the satire/parody. As insipid, boring, staid, stereotyped, and badly sung as is Roy Orbison's original rendition of "Oh, Pretty Woman," anyone who thinks that 2Live Crew was being "fair" to the original with their raunchy reimagining probably believes in the Easter Bunny and honest elections in Chicago. Although it's not an MP3, predating that technology by a couple of years, Justice Souter's opinion does include the lyrics, which is an interesting bit of fair use itself.

My real point is this: If the distinction between "parody" and "satire" matters for the purposes of copyright law—at a theoretical level, I don't think it does—the least that the legal system could do is use well-seasoned terms consistently with the way that professionals in the relevant field (literary criticism) use them. That, however, might be expecting judges and their barely-out-of-law-school clerks to actually understand the distinctions themselves, and do enough research to be able to cite authority on them; not once in any of the opinions in either 2Live Crew or Seuss v. Penguin does anyone cite to in-field authority. That also says that the lawyers had tunnel vision, too; but that shouldn't surprise anyone very much. As a profession depending on reading and writing, law does its very best to take the joy of reading away from its practitioners.