Fair’s Fair

I’m working on a friend’s web series. “Working” in sarcastic I’m-not-getting-paid quotes. But, like I said, he’s a friend, and it’s a funny show. It’s basically an extended version the “You Only Move Twice” episode of The Simpsons. (Well, not exactly, but I don’t want to give away more before they release it.)

There’s a funny bit with an acid delivery guy.  I won’t spoil it.

Anyway, a few episodes later, the art department, being children of the post-modern age, threw in a call-back joke in the background: on someone’s bulletin board, they wrote: “Compare acid prices.”

Since I was just standing around at the time, I suggested they write “LexCorp vs. Osborn Industries?” underneath. If you’re nerdy enough, you’ll know that those are villainous corporations from two different comic book universes.

Everyone had a nice chuckle at the idea, until the producer shot it down. He was afraid of incurring the wrath of both Marvel Comics Entertainment and whichever conglomerate owns DC right now.

I’m not a lawyer, but I did read a comic book on the subjects of copyright and fair use.

It’s been pretty well established that parody is fair use. Granted, in Campbell v. Acuff-Rose, Justice Souter wrote, “Parody may or may not be fair use, and petitioner’s suggestion that any parodic use is presumptively fair has no more justification in law or fact than the equally hopeful claim that any use for news reporting should be presumed fair.”

And, of course, this series is ultimately intended to make money, which is one of the four factors when considering fair use.

Souter found that the second factor, the nature of the original work, has no bearing on whether or not a parody is fair use.

In any case, it’s clear this minor joke passes the other two criteria: “The amount and substantiality of the portion used in relation to the copyrighted work as a whole,” which, in this case, is one company name in over seventy and forty years of comics, respectively. If you look up “insubstantial” in the dictionary, you aren’t likely to find a picture of an abstract concept like seventy years of comic books, but still, it’s pretty insubstantial.

Lastly, there’s “the effect of the use upon the potential market for or value of the copyrighted work.” I imagine that’s rather slight. First of all, no one is going to see this joke. It’s in the background, out of focus, in a tiny streaming video window. Even fewer will recognize it. It’s pretty esoteric.

It’s sad that people are so terrified of getting sued. If only there was some organization who could help entrepreneurial young filmmakers fight these chilling effects.

By the way, if there are any copyright lawyers out there, please tell me if my reasoning is unsound.