"parody" and "a derivative work"

The thing about parody is that it's completely subjective. It's basically whatever the given judge says it is at the time.

I have trouble conceptualizing a drinking game as a "work," but taking it as a given....

Wikipedia defines a parody as:

... a work created to mock, comment on, or trivialise an original work, its subject, author, style, or some other target, by means of humorous, satiric or ironic imitation.

Click to expand...

It defines a derivative work as:

... an expressive creation that includes major, copyright-protected elements of an original, previously created first work.

Click to expand...

In a drinking game based on Harry Potter, drinking every time they enter a classroom isn't mocking or really commenting (although wiki also says that Linda Hutcheon says it doesn't have to be), so I guess it depends on the criteria for the game. It could be played in humorous, mocking fashion (which is how I know these games to be played) by pointing out how often someone says "You Know Who" or notices Harry's scar.

A derivative work (according to US Copyright Act) says a derivative work is based on previously existing works that can be...

... recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”.

Click to expand...

Because a drinking game doesn't, in and of itself, including actual, substantial content from Harry Potter, I would say it doesn't qualify as a derivative work.

It does, though, make commentary on the source by way of drinking whenever a certain thing is done/said, thus implying that the act/speech is included too often, at least sufficiently to get people intoxicated.

Therefore, if I have to choose between the two, I say a drinking game is a parody.


I don't think of The Tao of Pooh as a parody. It doesn't really comment on A. A. Milne's works so much as uses the characters of those works as a metaphor to explain something else. But neither is it a recasting or adaptation of the original Pooh stories (as I understand it), even though it quotes them. I suppose if we're only picking between the two, it's legally closer to a parody.

Back in the 1970s the National Lampoon people produced a parody of Tolkien called Bored of the Rings. The parody was obvious, but they also took pains not to use Tolkien's original character names, but rather take-offs on them. Bilbo Baggins, for example, became Dildo Daggins.

Another good example would be Neil Simon's parody of classic detective mystery fiction, Murder by Death, which featured Peter Falk as hard-boiled detective Sam Diamond (Sam Spade), and parodies of Charlie Chan by Peter Sellers among numerous others.

Strikes me that the line might be drawn there: If you use satirical variations on names/places/paradigms that aren't identical, you may be okay. If you use the original names/places/paradigms, you could be asking for trouble.

And the "rules" are fuzzy, subject to litigation and adjudication if enough attention gets paid to them. Then you get into issues of how much money are you willing to put up to defend yourself.

caw

Cyia said:

The thing about parody is that it's completely subjective. It's basically whatever the given judge says it is at the time.

Click to expand...

Repeating this for emphasis.

The parody safe harbor is triksy, in part because the legal definition is not the same as the literary definition.

Go look up the case history of the Aqua Barbie Girl case. You can start with Wikipedia, but it's much much larger:
http://en.wikipedia.org/wiki/Barbie_Girl

Medievalist said:

Go look up the case history of the Aqua Barbie Girl case. You can start with Wikipedia, but it's much much larger:
http://en.wikipedia.org/wiki/Barbie_Girl

Click to expand...

However do not, under any circumstances, listen to the song in question.

Trust me.


To the OP - I'm not sure why it would matter. Surely you are unlikely to get sued for playing such a drinking game, even out in a pub or bar. And I can't see how you might go about profiting from it (which is when the rights owners might really start to throw their toys out of the pram).

JimmyB27 said:

However do not, under any circumstances, listen to the song in question.

Click to expand...

You mean this one?

Use Harry Potter's name/face/ etc., in anything published which is actually based on the name/face etc., such as a Harry Potter drinking game complete with board, or printed rules for sale, or whatever, and I can pretty much guarantee you'll be in court before you know what hit you. It's a trademark issue, and so far, Rowling and her publisher have jumped all over everyone who tried to cash in the Harry Potter's fame.

Now, if it's just a game you play with your friends, one with no written rules, and no sales or distribution for money, you're likely fine, but beyond this, I wouldn't begin to do it.

The trouble with going to court is that you will shell out a LOT of money, even if you win. In this case, I don't think you would win, but either way. . .