Sunday Mailbag

November 9th, 2008 | Posted in Mailbag

Q: Could you address ‘Parody/Satire’ and how it relates to copyright issues or even “right of publicity”? For instance when MAD does movies parodies they always change the names of the movie and the characters. What about merchandising of parodies? Could MAD produce ‘Dork Knight’ action figures?

A: Satire and parody are very well protected free speech rights under the first amendment of the U.S. Constitution. The first amendment guarantees a person’s rights to voice their views or opinions about anything and everything. Those views include the right to criticize something or someone, and that includes making fun of them. Copyrights and the “right of publicity” (the right of a celebrity to protect the value of their own likeness/persona) cannot stand in the way of someone’s first amendment rights insofar as the courts recognize those rights as being applicable.

When MAD first got started as a comic book, they made fun of genres of pop culture like westerns, horror movies, spy stories, etc. However they very quickly turned their guns on specific subjects like “Dragnet”, Tarzan, Superman, Batman and other comic book, media and serial strip properties. They were obviously very nervous about it at first. “Bat Boy and Rubin!” by Wally Wood in MAD #8 was filled with many background signs that made it very clear this was a “lampoon” of Batman, a copyrighted character of National Periodicals (later D.C. Comics). Possibly this stemmed from National Periodical’s reactions to “Superduperman!”, a parody of Superman also by Wood in MAD #4. Eventually MAD became well known for their continuing parodies of films and television shows. They probably changed the names at first to make sure there was no confusion that what they were doing was parody and not a licensed representation of the show, but honestly outside that possible argument they need not change the names for legal reasons. Its part of the fun and the lampooning, so it’s continued to this day.

MAD has been tested several times in court, but I don’t know of any specific suits relating to movie or TV parodies. There were some threats that never made it into actual legal action. According to Maria Reidelbach‘s Completely MAD, MAD‘s parody of “The Barefoot Contessa” entitled “The Barefoot No-Countessa” drew the ire and a lawsuit threat from Ava Gardner. Universal Pictures made some threats over this cover from MAD #89:

Neither threat ended up in court. Likely their lawyers understood that MAD‘s first amendment rights would trump any suit brought against them. Eventually movie and TV studios would send packets of promo materials to MAD in hopes they WOULD get skewered in the magazine, as it was considered not only great publicity but an honor. Two more relatively recent incidents come to mind that illustrate that point, and also how lawyers sometimes don’t communicate real well with their clients. In 1981 some lawyers representing Lucasfilm Ltd. threatened to sue MAD over the appearance of the character Yoda in MAD #220, which contained the parody “The Empire Strikes Out”.

The editors of MAD forwarded to these brilliant legal minds a letter they had just recieved from their client George Lucas in which he called the artist and writer of that parody, Mort Drucker and Dick Debartolo “the Leonardo Da Vinci and George Bernard Shaw of satire”. I guess they decided not to go forward with that lawsuit after all. Similarly MAD received threats of a lawsuit from a lawyer on the “Peanuts” team after they lampooned the famous comic strip in the magazine. Again, MAD forwarded a letter that Charles Schulz had recently sent them saying how much he loved the send up and was pleased to be skewered in MAD. No word on the employment status of either lawyer(s) after those incidents.

MAD‘s most famous copyright/parody case actually went to the U.S. Supreme Court. In Irving Berlin et al. v. E.C. Publications, Inc., Irving Berlin and some others tried to sue MAD for one of their “sung to the tune of…” pieces where MAD’s poet laureate Frank Jacobs would rewrite the lyrics to a well known song making fun of some third subject. They sued for $25 million, wanting one dollar per song per issue printed of the collection The Worst from Mad No. 4, which featured the article. The Supreme Court sided with MAD in 23 of the 25 songs named in the lawsuit, saying that the use of transfigured lyrics were sufficiently “transformative” that it was not violating the creator’s copyrights on the tune(s). The loser’s appealed, and the Circuit Court that heard the appeal sided with MAD again, this time on ALL 25 songs. Ooops. Another appeal was denied by the Supreme Court, giving MAD a complete victory. There were other examples. MAD‘s right to make fun of whatever they wanted to make fun of was always upheld in court, until the legal threats and lawsuits basically disappeared entirely.

I think attempting to make action figures or some kind of merchandising based a parody character from MAD would be met with stiff and likely prevailing legal resistance. The courts take the venue in which free speech is exercised into consideration when faced with first amendment vs. copyright cases. Magazines and other published periodicals are so jealously protected as vehicles of free speech that short of liable almost anything goes in a published periodical. Merchandising is another story. It would be hard to argue that the “Inbanana Jones” action figure with Harrison Ford‘s caricature wearing high water pants, Depends and a flea bitten fedora with an accessory “walker” and “realistic denture action” would be defensible as a parody of the film series. Maybe it would and maybe it would not, but action figures are not considered a primary vehicle for free speech. I would guess the courts would decide against MAD is such a case. I know they did those action figures with Alfred E. Neuman as several different superheroes a few years ago, but they were produced by D.C. which owns both MAD and the copyrights of those particular characters, so that was a different animal. They could produce “Dork Knight” action figures because the people that own MAD also own the copyrights to Batman. Would they? Probably not, but in that case they could.

Thanks to Frank Zeigler for the question. If you have a question you want answered for the mailbag about cartooning, illustration, MAD Magazine, caricature or similar, e-mail me and I’ll try and answer it here!

Comments

  1. Jon Plante says:

    Thanks, Tom. I had my suspicions, but this really clarified things.

  2. Zieglar says:

    Thanks Tom. I knew satire was legal to do but couldn’t put my finger on why. Excellent point about merchandising not being a vehicle of free speech.

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