Why Are So Few People Talking About This?

Seeing this, over on Language Hat, and realizing that nobody else was blogging it inspired this weblog.

From the New York Times:

Pearson Education, the publishing company that owns the copyright to the Dick and Jane reading primers, has filed a lawsuit against a division of Time Warner in Federal District Court in Los Angeles claiming that the book "Yiddish With Dick and Jane" violates Pearson's copyrights and trademarks for the familiar characters.

So here's the thing:

1. Pearson gave permission for the copyright and trademarked material to be used.
2. Yiddish with Dick and Jane is a parody, which can't exist without referring to the material it's poking fun at.

Getting Permission
As I understand it, if an author or a publisher wants to use copyright material the author or publisher (usually the author) contacts the body holding the rights to the copyright material, and requests permission to use the material. Several things can then happen:

1) The rightsholder says "yes," "sure!" "of course," "go right ahead," or otherwise gives consent
The author/publisher makes certain to get this in writing, and goes ahead and uses the material, scrupulously observing the rightsholder's stipulations regarding how they work may be used. If the publisher is polite, and if the schedules allow (which doesn't often happen), they let the rightsholder see the work before it goes to press.

2) The rightsholder says "no," "no way!" or otherwise does not consent
The author/publisher sighs, and finds something else to use, or cuts the quoted material so that they're allowed to use it under Fair Use, or paraphrases.

3) The rightsholder says "Yes, for a fee."
The author/publisher dickers about the price and either pays it, or sighs and move onto one of the options for "no."

4) The righsholder says "Yes, but only if you...."
The rightsholder and the would-be user negotiate the various provisions governing how the user can use the material. They write these down and agree to them. For instance, if you buy the rights to an image from a museum, the museum generally stipulates that you can't alter the image at all—no cropping, no re-sizing, no photoshopping amusing hats onto the Mona Lisa.

The authors of Yiddish with Dick and Jane seem to have encountered case #4. The stipulation was that the book should bear a prominent notice that it is a parody, to forstall any assumptions that it might be an official Dick and Jane publication. Just in case, y'know? So the book is covered with Parody notices, on the spine, the cover, and I believe, in the opening pages. The promotional video opens with "Warning! Parody!" So there can be very little confusion on that point.

Under the Fair Use provisions of Copyright law, parody is protected—a creator can make use of somebody else's original material in order to create a parody of that material, since, as I mentioned above, if you don't refer to the original material, nobody's going to get your parody.

Defining Parody
Pearson (or its lawyer) claims that Yiddish with Dick and Jane can't be a parody "because it does not use the copyrighted characters 'for the purpose of social criticism.'"

Huh.

By that definition, Weird Al Yankovic's entire career (except maybe the polkas) has violated the provisions of Fair Use. Or maybe I failed to notice the underlying social commentary in "I Love Rocky Road."

"A parody exists when one imitates a serious piece of work, such as literature, music or artwork, for a humorous or satirical effect." (Parody: Fair Use or Copyright Infringement, Lloyd L. Rich, 1999)

This is the more traditional characterisation of parody. Note the conspicuous absence of any need for social relevance.

More than Weird Al's status as a parodist is at risk here. Re-defining parody, or narrowing the defintion of parody, essentially sheathes one of the humorist's weapons, and narrows the range of creative expression.