Sunday Mailbag

May 8th, 2011 | Posted in Mailbag

Q: I’m just curious and you may or may not be the man to ask but I’m going to anyway, how does MAD magazine get around copyright infringement when you guys do film parodies? I mean it’s a parody but there’s no question about which film the original is, do you ask for permission from the film studio? Has this ever come up I mean it is essentially using the likeness of celebrity figures and a bunch of copyrighted material to create those parodies and I’m just curious how you guys get around it. Or has it ever even come up?

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 these expressions of opinion appear in a publication or book, they are doubly protected as those are recognized vehicles of free speech.

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 probably need not bother changing 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. MAD has never, to my knowledge, asked permission to parody anything. 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. I sometimes get contacted by the actors or creators of a show or movie telling me how much they loved seeing themselves or their show lampooned in MAD.

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 received from said lawyer’s 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.

The likenesses of the actors in the parodies are also covered under the first amendment right to free expression, so a right of publicity suit would be a long shot at best, and most likely a waste of time.

Thanks to Jamie Linfoot 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 your questions and I’ll try and answer them here!

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