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Cleveland Intellectual Property partner Deb Wilcox published an article in the October 2010 issue of The Licensing Journal. Titled “When ‘Parody’ is No Defense to Copying,” the article explained how courts interpret claims of fair use made by those who are charged with infringement after copying popular cartoon characters. Because there is no actual defense of parody, copiers are actually “asserting that the copying falls within the defense of fair use,” she explained.

As such, courts typically weigh the issue based on four factors identified by Wilcox as:

1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. The nature of the copyrighted work;
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. The effect of the use on the potential market for or value of the copyrighted work.

She then provided examples of how courts have interpreted these factors, pointing out specific issues and considerations that may undermine a copier's defense of fair use.

In conclusion, Wilcox noted, “In the context of character properties—which typically garner a wide berth of protection due to the creativity in the original works of authorship—unauthorized copiers, especially ones who profit from their copies online, are unlikely to be deemed to have made fair use of the original material.”