MTG Salvation

Quote from PolishTamales

So for the past month, WotC's lawyers have been trying to censor some of the work I've been providing the MTG community. Which amounts to some sketches and improvs through the popular image sharing site known as Tumblr.

Fair use was codified into U.S. law with the Copyright Act of 1978 but had been a part of case law well before that. Fair use, basically, is a set of exemptions under the law where someone could infringe upon the copyrights of another, but not be held liable.

Without getting too deep into how fair use is determined, parody is one of the most protected forms of speech under the law. The reason is that parody is the act of making fun of an already existing work and both the law and the courts recognize that, in order to “conjure” up a previous work to lampoon it, you have to use a large amount of it.

The protection of parody got another shot in the arm in the Supreme Court case Hustler Magazine and Larry C. Flynt, Petitioners v. Jerry Falwell, which ruled that parody was protected under the first amendment. That case was not a copyright case, but a defamation and intentional infliction of emotional distress one as Rev. Jerry Falwell sued the magazine over a parody ad that jokingly claimed Falwell had lost his virginity to his mother in an outhouse.

Trademark law also provides a pretty wide berth of protection for parody, but interestingly, for pornographic parodies, the nature of the films typically prevent a trademark case from surviving as the possibility of confusion is, generally, seen as small. This was, for example, the grounds for dismissal of a lawsuitcited by a judge as a possible reason for dismissing a lawsuit by the Dallas Cowboy Cheerleaders against the movie Debbie Does Dallas, even though the cheerleaders went on to win that case based largely upon the context of the use of the marks.

The combination of first amendment protection and wide fair use berth has given parody a lot of leeway under the law and that’s not just limited to pornography. Mainstream movies, such as those created by Mel Brooks, have often parodied other films and countless musicians, including Weird Al, have created parodies of mainstream music.

But all of this raises a question: Are porn parodies actually parodies? The law and courts, it seems, says yes.