the Fair Use
Network

[Name & Title of entity that sent the letter]
[Organization Name]
[Street Address]
[City], [STATE] [zip]

[Date]

RE: [Rightsholder's Name] Cease and Desist Letter of [date]

Dear [---name or title of Copyright Agent---],

After carefully reviewing the claims in your cease and desist letter of [date], I have concluded that, contrary to your assertions, my parody of your copyrighted materials is plainly protected by fair use. 17 U.S.C. § 107.

[If there are facts which do not fit neatly within the four factors below, but which assist in understanding the factors, or explain a complicated situation, it may be worthwhile to include them here. However, complex fact patterns may suggest that the parodist should talk to an attorney before sending a response letter. For instance, if the parodic purpose is not plain to anyone familiar with the original work and the parodic work, it may be advisable to consult an attorney.]

Factor 1: The [title or name or description of work] parody is transformative. [Noncommercial parodies could add "and noncommercial".]

The Supreme Court has recognized that parodies are inherently transformative of the original copyrighted work, and have an inherent First Amendment value. Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994). A review of each of the four fair use factors confirms that my use falls squarely within the strong protection for transformative, parodic expression.

Parodies are by their nature transformative, and thus highly favored under the First Amendment protection of speech embodied in the fair use doctrine. My parody of the [name of the original work] exemplifies this transformativeness. [Describe the significant ways in which the parody alters the original work, and changes its meaning. Point out the ways this alteration conveys disagreement with or mockery of the original.]

[If the underlying work has a strong political, ideological, or religious message, which is particularly targeted by the parody, then point that out here. If the underlying work has a strong message, but the parody doesn't particularly target that message, then consider making this point in Factor 2. Explain that the nature of the underlying work, in attempting to convey a message, renders it particularly susceptible to parodies.]

The Supreme Court has made it clear that commerciality of a secondary use is no bar to finding a fair use. This is particularly true in the case of a parody which "adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message." Campbell, 510 U.S. at 579. [If the parody is noncommercial, state something to the effect that "Nevertheless, here, where the parody is noncommercial and is solely for artistic and political purposes, the protection for parody is at its strongest." If the parody is commercial — being sold for a profit, for instance — discuss commercial parodies: "For instance, in the Supreme Court case Campbell, 2 Live Crew's parody of the song "Pretty Woman" was a commercial product, sold and marketed. Nevertheless, the Supreme court found that the commerciality was not significant in evaluating whether a parody was a fair use or not. Similarly, in Sun Trust Bank v. Houghton Mifflin Co., 268 F.3d 1257 (11th Cir. 2001), the fact that the parody, The Wind Done Gone, was commercial was not relevant to the court's conclusion that the highly transformative nature of the secondary use was likely a fair use. In these and other instances, the critical turning point was not the commerciality, but the quantity of parodic content." Then point out that there are significant differences between the original and the parody, discussed further under Factor 3.]

Factor 2: The nature of the underlying work does not protect it from parody.

The creative nature of the underlying work does not insulate it from parody. The Supreme Court in Campbell determined that creative works are the most likely to engender parodic responses, and that this factor "is not much help" in evaluating parodies. Campbell, 510 U.S. at 586. [If the original work is not highly creative — largely factual, a simple bit of ad copy, a short phrase, etc. — then you can point that out here. Otherwise, leave this paragraph with the strong statement that the Supreme Court said this factor is not helpful.]

Factor 3: I have taken a reasonable amount of the original to parody it.

The Supreme Court has held that parodists must use "at least enough" of the original, with no requirement that parodists limit themselves to the bare minimum necessary to conjure up the original. Campbell, 510 U.S. at 588. Instead, it is important to examine the quantity taken in relation to the work as a whole, and whether the parody will substitute for the original. [If the parody includes a significant amount of new content — for instance, new dialog, lyrics, music, or graphics — point that out. If the original was very simple, consisting of only a few elements, point out that there were only a few elements to take and it was necessary to take them all to sufficiently conjure up the original work. If it is highly unlikely that anybody who wanted the original would be happy with the parody, point out that there is no "market substitution, a point which is elaborated in factor four."]

Factor 4: My parody causes no harm to the market for the original work.

The fourth fair use factor examines harm to the market for the original work, but only harm caused by substitution in the market or satisfaction of the desire for the original work. Harm caused by mocking the work, thus diminishing desire for the work, is not cognizable, and may not count against fair use. Indeed, the more the parody criticizes the original, the greater the rationale for its protection. Discuss the extent to which the parody mocks the original; reference the first factor discussion if necessary. Point out that nobody who is interested in the original work or supportive of its message would be happy with the parody. If the original and parody are available in significantly different mediums (for instance, the original is a TV ad, and the parody is a webpage), point that out: "Moreover, because my parody is in a significantly different format, it would be unlikely to act as a market substitute in any case."

Conclusion: The [description or title] parody is clearly protected by fair use and the First Amendment principles undergirding fair use.

After carefully reviewing your claims, and the four fair use factors, it is plain that the [description or title] parody is protected by fair use. It is highly transformative ["and noncommercial", if appropriate]. The parody takes a reasonable amount of the original[", and includes substantial new content", if appropriate]. While the parody may negatively impact your work through its mockery, it is highly unlikely that it could operate as any kind of substitute for your work.

My parody is precisely the sort of work which the First Amendment and copyright are intended to engender and protect, as demonstrated by the above analysis. Consequently, I respectfully decline to [edit, alter, remove, take down, cease distribution, etc.] my [description or title] parody.

If you have made any edits to avoid confusion, credit the original, or otherwise try to accommodate the complaint, describe them here. "While I believe that my original work is fully protected by fair use, I nonetheless have made minor alterations which should fully alleviate any remaining concerns you might have." (describe)

Sincerely,



[Target's Name]
[Street Address]
[City], [State] [zip]

cc: [Target's attorney, if applicable]
[ChillingEffects.org (recommended)]

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