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I want to write a short story that re-imagines the lives of several prominent artists, and uses their paintings to tell a new, fictional, story of their lives.

An example would be using Picasso paintings to tell a story about how he was actually a famous musician, and then using that platform to make fun of both Picasso and musician culture. The paintings would serve as a reference point for how the story relates to the real life artist. For example the painting "The Old Guitarist" would be renamed to "My First Guitar Teacher" and then some paragraphs written telling the story of the teacher and his relationship to Picasso, which is entirely fiction (this painting is actually in the public domain, but let's pretend it's not).

Would this type of work count as a parody, and therefore allow me to use copyrighted works in a for-profit publication? If not, why?

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  • I realize you said it's an example, but "The Old Guitarist" is presumably out of copyright protection (in the US, at leat), right? Mar 21, 2023 at 14:30

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First, there's a step missing: parody does not "therefore" allow you to copy protected works. You have to determine whether this is "fair use", where you get in the neighborhood of parody in identifying "purposes such as criticism, comment, news reporting, teaching ..., scholarship, or research". Therefore you have to go through the balancing act that is fair use analysis.

In Campbell v. Acuff-Rose Music, Inc., SCOTUS considered parody as a form of criticism or comment, noting that "This Court has only once before even considered whether parody may be fair use, and that time issued no opinion because of the Court's equal division". For that case, the court continues

Suffice it to say now that parody has an obvious claim to transformative value, as Acuff Rose itself does not deny. Like less ostensibly humorous forms of criticism, it can provide social benefit, by shedding light on an earlier work, and, in the process, creating a new one. We thus line up with the courts that have held that parody, like other comment or criticism, may claim fair use under § 107.

The important step in this ruling is tha

For the purposes of copyright law, the nub of the definitions, and the heart of any parodist's claim to quote from existing material, is the use of some elements of a prior author's composition to create a new one that, at least in part, comments on that author's works. If, on the contrary, the commentary has no critical bearing on the substance or style of the original composition, which the alleged infringer merely uses to get attention or to avoid the drudgery in working up something fresh, the claim to fairness in borrowing from another's work diminishes accordingly (if it does not vanish), and other factors, like the extent of its commerciality, loom larger.

In other words, you can't catch a free ride on "parody" to reach a fair use judgment. Even if it were parody, "parody may or may not be fair use", as the court said. That does not preclude establishing that the work in some other way comments or criticizes. Get a lawyer before you go doing this, in case you end up involuntarily making new law.

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No

Parody under copyright law requires making fun of the literary or artistic artwork itself. You are proposing to use the artwork to tell a humorous story about the artist - this is not parodying the art.

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    I'd be interested to see any cases you've read supporting this conclusion. As I understand it, to mock the artist is to mock his art. I imagine the rule is contrary to what you're presenting, or far more nuanced at the very least.
    – bdb484
    Mar 21, 2023 at 2:03

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