HUSTLER MAGAZINE, INC. V. MORAL MAJORITY, INC., 769 F.2d 12148
(9th Circuit 1986).

http://www.bc.edu/bc_org/avp/cas/comm/free_speech/hustler.html

See NAACP v. Claiborne Hardware Co., 458 U. S. 886, 910 (1982)
("Speech does not lose its protected character . . . simply
because it may embarrass others or coerce them into action").
And, as we stated in FCC v. Pacifica Foundation, 438 U. S. 726
(1978):

"[T]he fact that society may find speech offensive is not a
sufficient reason for sup pressing it. Indeed, if it is the
speaker's opinion that gives offense, that consequence is a
reason for according it constitutional protection. [56] For it
is a central tenet of the First Amendment that the government
must remain neutral in the marketplace of ideas." Id., at
745-746.

See also Street v. New York, 394 U. S. 576, 592 (1969) ("It is
firmly settled that . . . the public expression of ideas may
not be prohibited merely because the ideas are themselves
offensive to some of their hearers")....

At the heart of the First Amendment is the recognition of the
fundamental importance of the free flow of ideas and opinions
on matters of public interest and concern. "The [51] freedom
to speak one's mind is not only an aspect of individual
liberty--and thus a good unto itself--but also is essential to
the common quest for truth and the vitality of society as a
whole." Bose Corp. v. Consumers Union of United States, Inc.,
466 U. S. 485, 503-504 (1984). We have therefore been
particularly vigilant to ensure that individual expressions of
ideas remain free from governmentally imposed sanctions. The
First Amendment recognizes no such thing as a "false" idea.



CAMPBELL V. ACUFF-ROSE MUSIC, INC., 114 S. Ct. 1164, 510 U.S.
569, 127 L. Ed. 2d 500 (1994) - United States Supreme Court

http://supct.law.cornell.edu/supct/html/92-1292.ZS.html

Held: 2 Live Crew's commercial parody may be a fair use within
the meaning of §107. Pp. 4-25.

(a) Section 107, which provides that "the fair use of a
copyrighted work . . . for purposes such as criticism [or]
comment . . . is not an infringement . . . ," continues the
common law tradition of fair use adjudication and requires
case by case analysis rather than bright line rules. The
statutory examples of permissible uses provide only general
guidance....

(b) Parody, like other comment and criticism, may claim fair
use. Under the first of the four §107 factors, "the purpose
andcharacter of the use, including whether such use is of a
commercial nature . . . ," the enquiry focuses on whether the
new work merely supersedes the objects of the original
creation, or whether and to what extent it is
"transformative," altering the original with new expression,
meaning, or message....

(d) The second §107 factor, "the nature of the copyrighted
work," is not much help in resolving this and other parody
cases, since parodies almost invariably copy publicly known,
expressive works...

As to parody pure and simple, it is unlikely that the work
will act as a substitute for the original, since the two works
usually serve different market functions.



WORKS OF PARODY:  WALKING THE FINE LINE
by Leonard M. Marks and Robert P. Mulvey,
The New York Law Journal
March 10, 1997:

http://www.ljx.com/copyright/0310parody.html

Fair Use Factors

When a fair use defense is raised, the district court will not
be faced with the issues paramount in most copyright
infringement actions -- access, substantial similarity and
copying. Rather, fair use presupposes that the defendant used
copyrighted material but that the use falls within one of the
recognized exceptions to infringement, including parody.

The judge-made fair use doctrine is now codified in §107 of
the Copyright Act of 1976. In determining fair use, the
district courts are required, at a minimum, to consider the
statutorily itemized factors, including:

(a) the purpose and character of the use, including whether
such use is of a commercial nature or is for nonprofit
educational purposes;

(b) the nature of the copyrighted work;

(c) the amount and substantiality of the portion used in
relation to the copyrighted work as a whole; and

(d) the effect of the use upon the potential market for or
value of the copyrighted work.

The list is not intended to be exhaustive, and the courts have
considered other factors including the good or bad faith of
the parodists.

While works of parody are clearly within the fair use
doctrine, the analysis is further complicated by the absence
of a legal definition of parody and by the need for the courts
to determine if the work is a parody without making subjective
judgments about artistic worth....

[A]ny work of sufficient notoriety to be the object of parody
has already secured for its proprietor considerable financial
benefit. According that proprietor further protection against
parody does little to promote creativity, but it places a
substantial inhibition upon the creativity of authors adept at
using parody to entertain, inform, or stir public
consciousness....

The third fair use factor analyzes the qualitative and
quantitative portion of the copyrighted material used, to
determine whether the parody has taken more than necessary to
conjure up the original such that it has supplanted or
superseded demand for the original....

Provided the transformative effect is realized, parodies
should be, and have been, given wide latitude to use
substantial portions of the original.



Parody/Commentary/Humor

http://www.cni.org/Hforums/cni-copyright/1996-04/0603.html

On Fri, 15 Nov 1996, Spectrum Press wrote:
> 
> Parody is "critical comment" only secondarily. Primarily,
> parody is close derivative work, and usually for commercial
> gain. I understand the arguments of the courts; my point is
> the arguments are unintelligent.
> 
[snip]
> 
> Why is the line drawn more strictly? Because the court favors
> amusing derivative work, so Carter says above. All else being
> equal, a serious close derivative can be infringing where an
> amusing close derivative of the same material would be fair
> use. Again, shades of George Orwell.
> 
[snip]
> 
> So the basis for the parody rulings is amusement, not
> "critical comment".

I disagree.  Parody is a form of critical comment.  True, not
all parodies are amusing.  But the amusement attribute is one
that ought to help with the finding of fair use.  Certainly if
the parody compels one to laugh at or about the original, then
the parody use is clearly not going to be confused with the
original, thus helping to minimize any "competitive" aspect of
the parody--which will help prevent the fourth factor of fair
use from being construed in favor of the plaintiff.

The concepts of parody and critical comment also help bolster
the First Amendment implications of fair use, but that is
another discussion.

Kenny Crews
Indiana University




Excerpt from Negativeland's current embroilment with "fair
use" of musical parody

http://www.negativland.com/riaa/dowesue.html

---begin excerpt

When Mark tried to explain that he felt that his
transformative re-use of copyrighted material for parody,
critical or other creative purposes was a fair use, the
conversation took a nose dive. The idea that anyone could
suggest that there was any possible conceivable instance in
which re-using a fragment of someone else's material could be
done WITHOUT getting permission and WITHOUT paying sampling
clearance fees was obviously totally insane to Mr. Oppenheim.
"Are you a lawyer?!", he demanded to know. "Because fair use
is not a right, it's a defense!"

Clearly, the RIAA believes that their interpretation of
copyright and fair use is the ONLY interpretation, and are not
interested in any other point of view. Fair use IS raised as a
defense when one is involved in a lawsuit for copyright
infringement, but it is also one of the MAJOR EXCEPTIONS to a
copyright owners exclusive monopoly of a copyrighted
work....and if fair use is seen ONLY as an affirmative
defense, then this interpretation of fair use creates a
situation in which prior restraint and self-censorship is
inevitable. When Mark suggested that what the RIAA was engaged
in DID amount to an act of censorship, Mr. Oppenheim became
furious. "You are making this into a political issue and
accusing us of being censors!" When Mark suggested that if the
RIAA could not be reasoned with, then perhaps the only thing
to do was to sue the RIAA, Mr. Oppenheim hung up the phone.

---end excerpt

Negativland's issue is quite similar to mine, in that they
like to parody other artists by incorporating bits and pieces
of other works into their own original and parodic renderings.
Collages, as visual art, are perfectly legal, even when 
incorporating many samples of other artists' works. 
Negativland's style would be considered "audio collage". For 
a capsule description of what they're about, go to:  

http://www.negativland.com/riaa/npr.html.