When does satire (parody) become plagiarism?

Question

Stephen Fry wrote a novel called The Stars’ Tennis Balls, and claimed that only afterwards did he realize he’d rewritten The Count of Monte Cristo.

Fry’s novel is set in modern-day England; Dumas’s is in 1840s France and Italy. I haven’t read either to say what else is similar or different.

My question is, how close of a parody or satire can you write of a copyrighted work before it becomes plaigiarism? How much do you have to change? Where is the line between "that's funny" and "that's theft"?

(I’m not talking about obvious, blunt parody like Bored of the Rings or Spamalot/Monty Python and the Holy Grail, or even Pride and Prejudice and Zombies, but more like Rosencrantz and Guildenstern Are Dead.)

This is not the same question as How much is considered plagiarism? because I'm not talking about creating an original, straightforward piece inspired by something else, but rather deliberately copying a specific original with the intent of gently mocking it by updating and changing a few bits. What I'm not sure about is how many bits have to be changed, or to what degree.

Answer 1

First off, you're mixing two things: copyright violation and plagiarism. They are completely different.

The point of copyright law is to protect the financial interests of the writer. If you copy someone else's work and sell it as your own, then you are costing the original author sales. Court cases on copyright center on whether the copied work would cost the author sales or not.

Plagiarism is an academic violation. The point of rules against plagiarism is that you are claiming credit for something that you didn't do. Part of the issue is that it deprives the person who really did it of the honor that he deserves, and part of it is that it makes if difficult for others to study the history and development of an idea because you are breaking the chain of references.

All that said:

Avoiding plagiarism is easy: Give a proper footnote. Plagiarism is mainly of interest in scholarly pursuits. Parody is unlikely to be scholarly, so it's mostly a non-issue. But if you're worried about it, just give a footnote saying, "This is a parody of ..." and you're covered.

There is a special clause in copyright law for parody. The nature of parody is that you have to copy the original work to some extent. If readers can't see an obvious connection between the parody and the original, than it's not a parody, by definition. So the legal lines get blurred. On the one hand the more you copy, the more likely that a court will say you have violated someone's copyright. But if you don't copy enough, it won't be understood to be parody. Courts struggle with this regularly.

I am not a lawyer so that's about as far as I can go in answering the real question. I would GUESS -- again, speaking as a non-lawyer -- that if, say, you took the script of Star Wars and everywhere it said "Darth Vader" you replaced this with "Barack Obama", that this might be called parody, but would not be transformative enough to escape a charge of copyright violation. But if you went throughout the story and made numerous changes to insert references to contemporary politics, while keeping enough of the original so that it was still clearly recognizable, that you would win if sued. But there are no fine lines in the law. Nowhere does the law say, "you can copy 60% but not 61%" or any such specific numbers. It's up to the judgement of a court. And remember, the real criterion is: is it likely that you will cost the original writer sales? Will people buy your version INSTEAD OF the original? If so, you are likely to lose. But if you can convince the court that no one would confuse your parody with the original, and that indeed you might even increase sales of the original if people who hadn't seen the original read your parody and say, hey, I have to get a copy of the original to understand this, then you'll win. And the author of the original probably wouldn't sue in the first place.

Answer 2

I am now going to try to answer this question based on what I've learned since our December exchange.

I have "taste-tested" both books without reading through either. The styles are different enough that I'm going to assume that Stephen Fry didn't plagiarize any of Dumas book in the usual sense of "copying" one or more passages.

There is a doctrine called "striking similarity," whereby copyright infringement can occur even in the absence of plagiarism. The two works have "parallel" sequences regarding abduction, incarceration, a treasure hunt, and ultimately revenge. So Fry might have some vulnerability on those grounds.

I am not a lawyer, but I have learned some things from my "day job" about how "copying" is viewed. From what I understand from my reading of case law, it is not a "literary" test as a writer would understand it, but rather a marketing test: Does Work B go after the same market as Work A with essentially the same type of bait? Here, Fry is probably on safer ground.

The reason I'd cite is that both are "period" pieces. Dumas' in "pre-Republican" (before 1871), Fry's in the modern era. One would not expect Fry to follow up with another "pre-Republican" thriller like the Three Musketeers (deterrence is an element of the law). Nor could Dumas imagine the modern world that Fry's character lives in, so we can't accuse Fry of taking away Dumas' follow-up opportunity.

The best chance of convicting Fry is to convince the jury that there is a specialized and limited audience of "kidnap-revenge" story afficionados that Fry was cutting into. Fry's counterargument would be that "modernizing" the setting would draw large a "crossover" audience that would now buy "The Count of Montecristo" but would never read it otherwise. Maybe even yours truly.

An example of "probable" fair use was "Pretty Woman" by Two Live Crew that was a takeoff of Roy Orbison's original. Crew actually copied the first line of the song, and then veered off in the opposite direction; Crew's "woman" was a "streetwalker," Orbison's was an "innocent." The Supreme Court threw out the judgment in favor of Acuff Records and ordered a new trial because it could reasonably be seen as parody. And the "oppositeness" of Crew's version basically brought in a new audience with minimal damage to Orbison's. So Acuff Records did the smart thing and cut a deal with Crew instead of risking a new trial.

Answer 3

This is purely my thoughts on this from a literary viewpoint, what I'm saying here could very well be legally wrong, I'm not a lawyer, and not even attempting a legal opinion

While I think this is very strongly a legal question, ultimately you are using somebody else's work in a transformative way. I do think that because of the way that parody law works, you would need to have a solid literary footing. I think the literary merit would be the grounding for any legal or moral response.

If for instance you took The Three Little Pigs, and copied it verbatim and the only change you made was swapping out the Big Bad Wolf for Ernest Hemingway. (so I'd be bad at writing Parody!)

Anyone who reads that would very quickly see what you had changed and, hopefully, realise the purpose for the change (or at the very least find it a little funny)

If you could explain the purpose of the change, ideally complete with the larger social commentary that it encapsulated, then I don't think that would be an issue.

I actually think the question you ask is a little back to front.

I think the less original material you use the harder it is to say it is a parody. If you write a story containing Hannibal Lecter (complete with facemask) as the only excerpt from those stories, it wouldn't be a parody because you've not used enough material.

It needs to contain the story in chief, either as a direct copy or at least a very strong spirit of the story in chief. It needs to be identifiable as the original piece. The reader needs to say "that's 'The Three Little Pigs' with Ernest Hemingway as the wolf" instead of "what's Ernest Hemingway doing blowing down houses, and what's with the pigs"