Do I have the right to have my character "blast off at the speed of light" as a reference to Pokemon's Team Rocket Trio?

Do I have the right to have my character lock another character in an office room, calling this the "Serious Punishment in the Serious Room", as a reference to The Stanley Parable?

Do I have the right to quote The Simpsons' "A Boozehound Named Barney" lyrics, adapting them to my characters, essentially doing with my characters what this DeviantArt submission did with MLP characters?

Do I have the right to pay a homage to Full Metal Jacket by having my character join a fictious army, then chuckle at the drill instructor's theatrically intimidating behavior, then, when the drill instructor asks him

Do you think I'm cute, Private my character's name? Do you think I'm funny?

make him respond to the drill instructor "Actually, yes" - then have the drill instructor gut-punch my character and yell:

You little scumbag! I got your name! I got your ass! You will not laugh! You will not cry! You will learn by the numbers! I will teach you! Now get up! Get on your feet! You had best unfuck yourself, or I will unscrew your head and shit down your neck!

Do I have the right to do other things of this kind?

I used to think I did. I thought I had the right to quote other works, as long as the size of the quote is insignificant in comparison to the size of the quoted work AND to the size of my work, for reference or for parody. Especially since I can see mainstream works do this too, for example this MLP's allusion to Splinter Cell - The allusion in this case seems clear enough to the fanbase.

What makes me doubt if the above reasoning is correct is the Edgar David's won lawsuit against Riot Games. While David's public image is not a work of fiction, I would suppose that the right of parody or reference still applies. Apparently, this is not the case.

What is the situation in the EU? What is the situation in the USA? Should I split my question into two questions, one asking about EU and the other one about USA?

1 Answer 1


First of all, nothing that you describe is clearly a parody. Parody is different from making a reference or allusion to another work or including an homage to another work. As a good rule of thumb it is very hard to parody something that is already in the light/comedy genre, and simply reimagining someone else's work in a new context is not a parody. Instead, a parody generally makes a point that the author of the original work would find unpleasant or distasteful rather than being honored by it. The main point of the parody exception is that the targets of it would rarely consent to let you use their works for that purpose.

Second of all, you don't have a "right" to do anything of these things. Almost everything you describe is a derivative work which infringes a known copyright. The question is whether you have a defense to the claim of infringement.

The things that you describe may or may not be fair use. The fair use defense to a claim of derivative work copyright infringement is something that is evaluated in a rich factual context on a case by case basis, usually enriched by testimony from expert witnesses regarding what is commonly accepted and not accepted as permissible in this context and genre. Nothing you suggest is 100% certain to escape infringement liability, and nothing you suggest is 100% certain to be infringing. You are in a gray area and you are rolling the dice.

In addition to the "fair use" defense, you might also be able to resort to the "scene a faire" doctrine which states that elements of a work which would otherwise be infringing are permissible if they are pervasive conventions of a genre of work.

For example, the fact that your dark stormy castle in a gothic horror work looks like every other dark stormy castle in the genre, because that is what "gothic horror works" do, is a defense to a derivative work infringement claim.

Similarly, lots of standard cord progressions in popular music in a song you wrote would be protected by this doctrine.

To the extent that works in the genre you are creating in are almost always awash with references to other works in the genre, this would be a helpful boost to your argument that a defense would apply to your infringement of a derivative work because "fair use" is a matter of community custom and standards.

On the other hand, to the extent that you go beyond mere references to other works in the genre and instead are really just writing fan fiction, you are probably infringing and the fair use defense would not apply.

If you were sued you could probably not be able to get the case resolved one way or the other without a full presentation of all of the relevant facts by both sides in the case. These examples would not be amenable to summary resolution.

On the other hand, on the merits, I think that there is a good case to be made in each of the examples that you identify that it is a "scene a faire" or is "fair use". But, you have to understand that you are appealing to community indulgence of technically illegal activity, rather than truly doing so as a matter of "right" which is not a helpful way to think about what you are doing.

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