����ֱ��

In 1983, Hustler Magazine ran a parody of a famous Campari Liqueur ad — and it led to years of litigation involving the late Reverend Jerry Falwell. 

The original Campari ads featured celebrities interviewed about their “first time,” a sexual double entendre for the first time they sampled Campari. ��ܲ��ٱ����’s&�Բ�����;parody implied that Falwell’s “first time” was in an outhouse with his mother, which enraged Falwell. Within days, he sued Hustler for intentional infliction of emotional distress and libel. A federal jury awarded Falwell damages on the IIED claim (which the appellate court upheld). But the Supreme Court agreed to hear the case, and in the unanimous decision Hustler Magazine v. Falwell (1988) held the First Amendment’s protections for freedom of speech extend to such patently offensive statements about public figures.

The Court drew from its landmark decision in New York Times, Co. v. Sullivan (1964), holding that, as with libel, public figures alleging IIED must prove the defendant made a false statement of fact with “actual malice.” Setting this high bar for recovery, the Court declared, would provide the necessary “breathing space to the freedoms protected by the First Amendment.” In turn, the Court rejected Falwell’s proposed “outrageousness” standard that “would allow a jury to impose liability on the basis of the jurors’ tastes or views, or perhaps on the basis of their dislike of a particular expression.”

Hustler thus forms the backbone for parody’s constitutional protection, allowing crude, cruel, or offensive critiques, so long as no reasonable reader would believe the parody asserts real facts. For example, the TV show South Park recently  President Trump, depicting him as “being in an abusive relationship with Satan — in which Trump is the abuser.” For some, that’s crude, but it’s protected. Likewise, Saturday Night Live  Zohran Mamdani in New York City’s mayoral debate, having him declare that voters feeling “white guilt” would “feel a little less bad about that chicken and rice shop getting turned into a Sweetgreen” if they voted for him. These critiques of public figures, as explored below, form the core of protected parody and satire.

Post-Hustler cases refine the boundaries of parody and satire, including as a defense to intellectual property infringement. Ultimately, the First Amendment protects parody — but the extent to which that is true depends on context. This explainer will first cover parody and satire in the intellectual property context: copyright, trademark, and the right of publicity. Then, it will explore other legal limitations. 

Parody, satire, and copyright law

Copyright law protects a range of intellectual property from songs to books. Defendants — those accused of infringing another person’s copyrighted material — can argue their use was “fair.” Harper & Row Publishers v. Nation Enterprises (1985) instructs courts to review fair use defenses on a case-by-case basis rather than “simplif[ying] the analysis with bright line rules.” 

The Copyright Act establishes four factors for courts to consider when evaluating : the purpose and character of the work, the nature of the copyrighted work, the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and the effect of the use upon the potential market for or value of the copyrighted work. Without the fair use carve-out, copyright law could become judicially sanctioned censorship of art, music, literature, and other expressive works.

Parodists of copyrighted works can generally mount strong fair use defenses because parody (by definition) transforms and criticizes the original work. Tension lies in the fact that parody, by its nature, leaves enough of the original intact for it to remain recognizable. “Parody’s humor,” the Supreme Court declared in  (1994), “necessarily springs from recognizable allusion to its object through distorted imitation.”

Campbell illustrates this tension perfectly. In Campbell, hip-hop group 2 Live Crew satirized Roy Orbison’s famous song “Oh, Pretty Woman,” borrowing the melody, the musical structure, and even the first line of the original. But where the original featured  about (in the Court’s words) “the romantic musings of a man whose fantasy comes true,” 2 Live Crew’s  “juxtapose[d]” those musings against “degrading taunts, a bawdy demand for sex, and a sigh of relief from paternal responsibility.” For example, where Orbison sings “pretty woman” before every line, 2 Live Crew begins each line with “big hairy woman,” “ball-headed woman,” and “two-timin’ woman.” 

The Supreme Court unanimously held for 2 Live Crew. Writing for the Court, Justice Souter recognized that parody needs original material to operate: “When parody takes aim at a particular original work, the parody must . . . ‘conjure up’ at least enough of that original to make the object of its critical wit recognizable.” The Court thus handed down a strong, pro-parody fair use rule, holding the fact that even that a parody was made “in bad taste” (not-so-subtly alluding to the facts at bar) “does not matter to fair use.”

Parody and satire are generally protected. They fare best when they transform, comment, and clearly signal a joke or a jab; they may falter when masquerading as factual assertions or as someone else’s brand.

Satire, on the other hand, uses a creative work to criticize the world but not the original work in particular. For example, Saturday Night Live used the “I Love New York” song to criticize a city image-polishing advertising campaign. The Second Circuit  that, despite not making fun of the original song itself, the SNL skit was protected. The court rejected cases that demanded a strict nexus between the original work and the critique. So long as the work “” some of the original to deliver its critique, it does not risk traditional fair use pitfalls like market usurpation or taking more of the original than necessary. 

Ultimately, just as the First Amendment does not differentiate between messages based on how articulate or polite they are (such as protesting the Vietnam War with an editorial versus wearing a jacket that reads “fuck the draft”), parody or satire of any type may give rise to a fair use defense.

Trademark law and protections for satire and parody

Under the , the U.S.’s trademark law, individuals and companies can register “marks” for protection with the federal government. These marks range from brand logos to personal catchphrases. The Lanham Act protects these marks so consumers can identify and distinguish goods and their sources, as well as protect the producers’ good will. Whether trademark law carves out enough room for parody and satire remains a fair question that courts continue to explore.

The Supreme Court’s recent opinion in Jack Daniel's Properties, Inc. v. VIP Products LLC (2023) is instructive. In that case, the Court explained that even parodic use of a trademark can be subject to Lanham Act liability, when the trademark is used as a source identifier rather than expressively in some other fashion. 

Pet company VIP Products made a dog chew toy that resembled a miniature Jack Daniel’s bottle, the shape and design of which is a registered trademark. On the bottle, VIP parodied other Jack Daniel’s trademarks: “Jack Daniel’s” became “Bad Spaniels,” and “Old No. 7 Brand Tennessee Sour Mash Whiskey” morphed into “The Old No. 2 On Your Tennessee Carpet.”

FIRE reminds Supreme Court the First Amendment is top dog

����ֱ�� files an amicus brief urging the Supreme Court to uphold the First Amendment rights of a dog-toy maker to parody a famous whiskey brand.

Read More

FIRE filed an amicus brief urging the Court to prevent trademark law from becoming a veto on parody, preserving the “breathing space” outlined in Hustler and Campbell. Though the Court noted its general rule that fair use includes parody, it held, upholding Jack Daniel’s effort to protect its mark, that when a use is a designation for the parodist’s own product, as with “Bad Spaniels”), “no parody, criticism, or commentary will rescue the alleged dilutor.”

When parodists present another’s trademark as a designation of origin on their own product, the Court reasoned, “the likelihood-of-confusion inquiry does enough work to account for the interest in free expression.” Conversely, using a trademark within a parodic work is protected: A classic example would be use of a trademark in a song’s lyrics, movie dialogue, or visual art, so long as the mark was not used to designate the art’s source. 

The right of publicity

Parody and satire of political figures, movie stars, and professional athletes are a deep American tradition. From political cartoons  George Washington as a donkey to Saturday Night Live skits  Joe Biden and Donald Trump, these parodies enjoy expansive First Amendment protection. The right of publicity allows people to “profit from the full commercial value of their identities” but generally does not stand in the way of celebrity parodies as a matter of First Amendment law.

The right of publicity protects against non-sanctioned use of someone’s name, image, and likeness, even potentially including AI generated content. Unlike copyright and trademark, there is no federal right of publicity law — state common or statutory law governs. Generally, the right of publicity requires the plaintiff to be identifiable in the new work. The plaintiff must also show the appropriator gained a commercial advantage from the use, the use was unauthorized, and the use caused the plaintiff monetary harm. 

Parodists who want to include public figures in their work should parody the person instead of merely including their image, untransformed, in a larger parody. 

Courts generally decline to apply the right of publicity to celebrity parodies. A good example is the Tenth Circuit’s  (1996). In that case, Cardtoons produced parody . While normal baseball cards celebrate a player’s accomplishments, the parody cards poked fun at the players for being pampered and overpaid (they “humorously criticize[d] players for their substantial salaries,” for example “Treasury Bonds,” “Ken Spiffy Jr.,” and “Egotisticky Henderson” – respectively, Barry Bonds, Ken Griffey Jr., and Ricky Henderson). The Major League Baseball Players Association (which holds the rights to players’ names, images, and likenesses) sued to prevent further production of the cards.

But, as the Cardtoons court noted, the First Amendment gives special attention to the manner in which a speaker conveys her message. The Cardtoons court cited Cohen v. California (1971), where the Supreme Court reversed the conviction of a man who wore a jacket that said “fuck the draft” in a courthouse. Just as Cohen’s use of an expletive conveyed a certain message, parody needs access to public figures’ images — images that “mean something to people” — in order to effectively criticize society. Thus, Cardtoons’ criticism of professional baseball players necessarily included the players’ identities. So, just as in Cohen, the Tenth Circuit could not (quoting Cohen) “indulge in the facile assumption that one can forbid particular words without also running a substantial risk of suppressing ideas in the process.”

First Amendment protections against the right of publicity are not without limits, however. In  (1998), the estate of rockstar Elvis Presley sued a bar owner for using Elvis’ image in his parody of “faddish bars of the sixties.” The U.S. Court of Appeals for the Fifth Circuit sided with Presley’s estate. Decided two years after Cardtoons, the Court distinguished the bars from parody baseball players: “In Cardtoons, the parody of society was through the parody of the celebrity. Here, we have a direct parody of society that does not even attempt to parody the celebrity.” When the celebrity is not directly targeted by the parody, the necessity of invoking him “significantly decreases” and therefore does not justify the use. 

Put another way: Parodists who want to include public figures in their work should parody the person instead of merely including their image, untransformed, in a larger parody. The figure serving as the “raw materials” for the parody should be “distorted” to some degree “for purposes of lampoon, parody, or caricature” as in  (Cal. 2003), in which the court denied a right of publicity claim where an author caricatured celebrity musicians in a book. Put succinctly as Judge Kozkinski did in dissenting in  (9th Cir. 1993), where television host Vanna White sued Samsung for mimicking her image in an ad, “the last thing the First Amendment will tolerate is a law that lets public figures keep people from mocking them.” 

FIRE continues to defend against attacks on parody and satire

Ultimately, parody and satire are generally protected. They fare best when they transform, comment, and clearly signal a joke or a jab; they may falter when masquerading as factual assertions or as someone else’s brand. 

These aren’t just abstractions. In Novak v. City of Parma, police arrested a man over a Facebook parody of their department; ����ֱ�� wrote as amicus in support of Novak, arguing against government exaggeration of the disruptive effects of satire to justify actions against unpopular speakers. In Bailey v. Iles, where ����ֱ�� also participated as amicus, the Fifth Circuit recognized that a tongue-in-cheek “zombie apocalypse” post during COVID couldn’t be treated as “terrorism” — an important win for humorous expression and against overbroad arrests. 

VICTORY: After ����ֱ�� sounds the alarm, Stanford ends investigation into law student who satirized Federalist Society

Student Nicholas Wallace was set to graduate next week but his diploma was put on hold pending the investigation.
.

Read More

On campus, school authorities are also quick to censor parody and satire. In I.P. v. Tullahoma City Schools, ����ֱ�� sued a school district for punishing a student that satirized her school’s principal as an anime cat wearing a dress in an online post. And at the University of North Carolina-Chapel Hill, ����ֱ�� successfully interceded when the administration removed a student’s “Anti-Racist Jeopardy” parody website. Finally, ����ֱ�� defended a student humor publication, The Koala, when the University of California at San Diego punished the paper for poking fun at another campus group. After ����ֱ�� stepped in, the school dismissed the case.

It’s a First Amendment axiom that the exercise of free speech “will not always be reasoned or moderate,” as the Court explained in , but it nevertheless deserves legal protection. This is especially true in the parody and satire context. Where a parody’s tone or choice of words may be uncomfortable for some, the shaping and reshaping of original material into something new is integral to the satirist’s message. Protecting that creative distortion preserves the First Amendment’s “breathing space,” enabling citizens to puncture orthodoxy, check official narratives, and use the powerful tool of humor to engage the public on matters of serious concern.

Last updated Dec. 10, 2025