表現の自由から見た著作権の論点(1) : アメリカの判例に見るパロディ表現の取扱い

概要

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This article discusses the prominent cases of the federal courts of the United States in which the main issue is how parody is treated under U.S. copyright law. In the U.S., the defense of fair use is thought necessary to fulfill the purpose of protecting copyright "[t]o promote the Progress of Science and useful Arts," and a new work that uses the elements of the original work may weigh in favor of fair use if it is sufficiently "transformative." The United States Supreme Court defines parody as a derivative work which uses "some elements of a prior author's composition to create a new one that, at least in part, comments on that author's works," and the Supreme Court treats the parody work which is transformative as fair. The point is, parody that is sufficiently "transformative" is ategorized as a kind of comment, or a creative work, and its use of prior work is fair in case law of the United States. This article points out that the above point of view is very useful when we consider Japanese copyright law, especially when copyright infringement by parody is at issue.