Shecky sighting: Journal of Law & Communications

by Brian McKim & Traci Skene on November 29th, 2005

From “Reconciling Artist’s Moral Rights with Economic Principles and the Problem of Parody: Some Modest Proposals,” on the Journal of Law & Communications website, comes this nugget from Paul Nicholas Boylan’s treatise on parody:

The problem, in relation to moral rights, however, is that parody-– an older and better established concept than the comparatively newer concept of artist’s moral rights– directly violates the artist’s right to protect his or her reputation by preventing the alteration of his or her art. Parody depends on copying a work of art and altering that art in order to poke fun at the art and/or artist, thereby casting ridicule upon the art and/or artist.

When this happens, parody invariably takes precedent over the artist’s moral rights. For example, our hypothetical artist, Noirin, discovers that a comedian– let’s call him Shecky– has painted a curly moustache on her painting, “the Mona Lisa Marie Presley,” and placed the altered painting in a humorous magazine edited by Shecky. American copyright law expressly subordinates Noirin’s moral rights to the fair use defense which, under American law, includes parody. Noirin cannot, therefore, claim her moral rights in the United States. Neither will she have a remedy in France– the single jurisdiction where her moral rights are best protected– unless she can prove that Shecky altered her art for malicious, as opposed to comedic, reasons.

I wonder if Shecky (Greene) can bring suit against Mr. Boylan for unitentionally impugning him in a dry, academic treatise on parody? After all, there really is a comedian, named Shecky! Boylan, however, treats him as a hypothetical entity or a fictional character.

(We suspect that we have stumbled upon an extraordinary situation: Greene’s first name (his nickname, actually) has become a generic term for a comedian. Boylan is familiar with this development. He seems not, however, to be familiar with the antecedent, Greene himself. Nor, of course, does Boylan seem to be aware that the antecedent is still alive and, occasionally at least, still plying his trade as a comedian!)

Plod through the whole thing if you wanna kick around the issue of fair use and parody.

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