As the saying goes, it’s all fun and games until someone gets hurt. But as satirical television shows like South Park become more popular, it is clear that sometimes comic relief takes precedence when a statement would otherwise be considered defamatory.
Though satire and parody share fundamental elements, there are minor differences between the definitions of parody and satire that affect how each is treated differently under the law. Parodies are distorted images of original works for the purpose of humor and/or commentary. They are protected under fair use when it comes to copyright law, and are oftentimes protected from defamation suits as well. In other words, it is hard to successfully sue someone for defamation based on a creative work of parody.
Satire tends to be more critical, with a sharper edge, and is often used to illuminate social and political issues. Satirical statements may be offensive and even intentionally injurious; however, their ability to ridicule for the sake of expressing ideas often allows them to be considered political speech. Protecting political speech has been the most protected type of expression since the First Amendment was enacted in 1791.
Though satire and parody both utilize false elements for comic purposes, the main reason parody and satire are suitable defenses against defamation actions is that the public policy behind their expression generally outweighs any offense they may cause. Satire advances the First Amendment’s goal of facilitating communication about controversial social issues, while parody can serve to make light of an otherwise heavy subject. While satire is almost always a defense to defamation, parody stands as a defense when the statement is deemed to be so ridiculous that the average person could not believe it.
One such case involving a parody defense was Hustler v. Falwell, which was so publicized that it was made into the film “The People Versus Larry Flynt.” In November of 1983, Hustler Magazine featured a parody of an advertisement for Campari Liqueur that had the name and picture of Jerry Falwell, entitled “Jerry Falwell talks about his first time.” The parody was designed to mimic other Campari ads, which pointed to the idea of the “first time” someone tasted Campari Liqueur. The parody depicted Falwell’s first time as a drunken, incestuous encounter with his mother in an outhouse. Falwell brought suit against Hustler magazine for defamation. The district court and the United States Court of Appeals for the Fourth Circuit found for Hustler, on the basis that no reasonable person would consider the parody as true.
The outcomes of this case and those similar to it communicate that when attempting a parody, it is best to err on the side of the outrageous. Had Flynt simply reported that Rev. Falwell had engaged in incestuous sex, the jury may have found that the average person could find that believable. Fortunately for Flynt, it seems like outrage was exactly what he was going for.
Continuing in the same vein, our next post will explore the realm of opinion and when it will serve as a defense to a defamation action.
Jon Pfeiffer is an experienced entertainment and copyright trial attorney practicing in Santa Monica. Jon is also an adjunct professor at Pepperdine University in Malibu, California where he teaches Media Law. COM 570 covers First Amendment issues as well as copyright, defamation and privacy.