Is our “Get Out of Hell Free” card an infringement of the copyright held by Hasbro, which owns the “MONOPOLY®” board game? Several people have asked. Our answer: No.
Let’s start with the copyright law — Title 17, United States Code, Chapter 1, Section 107: “Limitations on exclusive rights: Fair use”, which reads:
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use [several factors must be considered.]
The several “factors” courts are required to consider to determine whether a use of a copyrighted work is “fair use” or infringement are:
- the purpose and character of the use. In the case of our “GOOHF” cards, the purpose is parody, and it is obvious that it is parody, rather than a confusing card that might be thought by the public to be included in a real MONOPOLY® game set.
- the nature of the copyrighted work. (the doctrine here is, some works are considered more “important” — and thus deserving of protection — than others. A wholly original novel, for instance, might be afforded more protection than, say, a newspaper article about a public event.) We obviously consider creative expression important, and consider our creative parody to be just as important in its role as making social commentary and provoking discussion among our readers.
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole. Our parody card has the “look” of a MONOPOLY® “Chance” card, but obviously there is no “Get Out of Hell Free” card included in MONOPOLY® games. And note that the GOOHF card is not a “Chance” card (as MONOPOLY® uses), but is labelled a “Last Chance” card to make its nature — parody — even more obvious. The inclusion of a highly modified image (the caricature screaming at his butt being licked by the fires in the pit of hell) is clearly just that: an amusing, highly modified parody. In addition, we are obviously parodizing only the “amount” of MONOPOLY® necessary to make our parody clear, and that amount certainly could not be considered a “substantial” part of the whole of the MONOPOLY® board game, with its dozens of different cards.
- the effect of the use upon the potential market for or value of the copyrighted work. We would not be able to accept with a straight face any claim that Hasbro could consider that our parody in any way reduces the sale of “MONOPOLY®” game sets. If anything, we think it would increase game sales.
For an example of how “fair use” is applied to cases of commercial parody in real life, consider Leibovitz v. Paramount Pictures Corp., (1998 U.S. App. LEXIS 2693 (2nd Cir. Feb. 19, 1998)). Briefly stated, photographer Annie Leibovitz took a photograph of actress Demi Moore, pregnant and in the nude, which was used as a cover for Vanity Fair magazine. Paramount Pictures, in promoting the movie Naked Gun 33 1/3, recreated the very famous photograph with a body double and pasted actor Leslie Nielsen’s face on the double’s body. Leibovitz sued, claiming copyright infringement. Paramount argued that the ad, even though it was obviously commercial in nature, was a parody under the fair use clause.
The court found that the advertisement itself was “sufficient commentary to qualify as parody” and rejected arguments that parody should only be protected when the copyright owner would prohibit use of the original. The decision echoed a 1994 U.S. Supreme Court decision regarding 2 Live Crew’s parody of the Roy Orbison song Pretty Woman, which firmly established that parody is a defense against copyright infringement claims, even in commercial situations. Interestingly, 2 Live Crew had asked permission to create the parody, but that permission was specifically denied. The rap group did the parody anyway and was sued for copyright infringement. The Supreme Court ruled against Acuff-Rose Music, Inc., which owned the rights to Pretty Woman.
Why would there be such a loophole in the law? The First Amendment, which allows free expression. Such loopholes are important to balance the rights of businesses and individuals to copyright (and, similarly, trademark) protections with the countering right of free expression. Parody is thus recognized as an extremely important exception to these protections.
Our “Get Out of Hell Free” card is not only parody, it is an obvious parody, right up to their name (“goof” cards!?!) Under the clear provisions of the U.S. Copyright law’s “fair use” clause, as affirmed by federal copyright and trademark court cases that have gone all the way up to the Supreme Court, the GOOHF card is not a violation of Hasbro’s copyrights or trademarks on “MONOPOLY®”.