Private Law Theory

ABSTRACT
Barbie. Barney. The Elf on the shelf. Gone with the Wind. Grease. The Grinch Who Stole Christmas. Walt Disney. Don Henley. WWF wrestlers. Viral music videos. Pro-choice videos. Credit card ads. All were once the target of parody. But what, exactly, is a ‘parody’? Since the Supreme Court’s 1994 landmark decision in Campbell v Acuff-Rose Music, Inc established parody as paradigmatic fair use, courts have repeated the same definition: a parody must comment on or otherwise target the original work, and anything outside that is relegated to satire. Yet case law tells a different story. Consider the range of works courts have confronted: Family Guy‘s spoof of ‘When You Wish Upon a Star’ to mock Walt Disney’s rumored antisemitism; a retelling of Gone with the Wind to expose the original novel’s racist foundations; a photo series featuring Barbie to critique the doll’s cultural associations with hyperfeminized body ideals; South Park‘s recreation of the viral ‘What What (In the Butt)’ music video to lampoon the genre of works that it exemplified. None of these fit neatly within the doctrine’s requirement of targeting the original work, yet courts readily classified each as parody. This Article exposes the gap between the rhetoric and reality of copyright’s parody doctrine. It argues that, in practice, courts treat works as parodies when they use the original work to target certain elements within the work, such as its style, subject, and message, but also elements generally considered beyond the original work, such as its author, genre, and cultural associations. This more expansive approach to defining parody for copyright fair use is justified through free speech principles, copyright’s underlying purpose, market rationales, and parody’s need to invoke the original to deliver its critical message. By showing how parody has transformed from a narrow category into a flexible tool for protecting socially valuable criticism, this Article proposes a reframing of copyright’s parody doctrine to reflect the reality of its application.

Smith, Cathay, Parody of What? Reconceptualizing the Scope of Parody for Copyright Fair Use (February 5, 2026), Georgia State University Law Review (forthcoming 2027).