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Brooklyn Law Review

Abstract

The copyright fair use test balances the copyright holder’s right to exclude others from using its work against the secondary user’s First Amendment right, yet this test is often too unpredictable and favors misappropriation, even the most commercial kind. The test is weakest when used to determine the legality of sexual parodies. The sexual nature of the parody should receive statutory consideration in the balancing test because vulgar and lewd speech is often deemed “low value” speech, and therefore the secondary user’s First Amendment right is weaker compared to the copyright owner’s right to exclude. Courts already consider the sexual nature of the content in both trademark and First Amendment jurisprudence, which suggests incorporating this aspect is plausible, relevant, and important. The fair use test should further be expanded to include a consideration of the demographic of the copyright holder’s target audience to more accurately determine the likelihood of market harm that would result from the parody. This consideration also has the secondary effect of protecting children from exposure to lewd material. The current balancing test for determining whether a parody is fair use yields inconsistent results that inequitably favor the “parodists” and result in mass media companies reprinting exact images of protected characters and profiting significantly from the sale of those images. Expanding the factors considered in the test will more appropriately protect copyrighted works and prevent secondary harm to juvenile audience members.

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