The GOOHF Card is an Obvious Parody
Is our "Get Out of Hell Free" card an infringement of the copyright held by Hasbro, which owns the "MONOPOLY®" board game? Several people have asked. Our answer: No.
Let's start with the copyright law -- Title 17, United States Code, Chapter 1, Section 107: "Limitations on exclusive rights: Fair use", which reads:
The several "factors" courts are required to consider to determine whether a use of a copyrighted work is "fair use" or infringement are:
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For an example of how "fair use" is applied to cases of commercial parody in real life, consider Leibovitz v. Paramount Pictures Corp., (1998 U.S. App. LEXIS 2693 (2nd Cir. Feb. 19, 1998)). Briefly stated, photographer Annie Leibovitz took a photograph of actress Demi Moore, pregnant and in the nude, which was used as a cover for Vanity Fair magazine. Paramount Pictures, in promoting the movie Naked Gun 33 1/3, recreated the very famous photograph with a body double and pasted actor Leslie Nielsen's face on the double's body. Leibovitz sued, claiming copyright infringement. Paramount argued that the ad, even though it was obviously commercial in nature, was a parody under the fair use clause.
The court found that the advertisement itself was "sufficient commentary to qualify as parody" and rejected arguments that parody should only be protected when the copyright owner would prohibit use of the original. The decision echoed a 1994 U.S. Supreme Court decision regarding 2 Live Crew's parody of the Roy Orbison song Pretty Woman, which firmly established that parody is a defense against copyright infringement claims, even in commercial situations. Interestingly, 2 Live Crew had asked permission to create the parody, but that permission was specifically denied. The rap group did the parody anyway and was sued for copyright infringement. The Supreme Court ruled against Acuff-Rose Music, Inc., which owned the rights to Pretty Woman.
Why would there be such a loophole in the law? The First Amendment, which allows free expression. Such loopholes are important to balance the rights of businesses and individuals to copyright (and, similarly, trademark) protections with the countering right of free expression. Parody is thus recognized as an extremely important exception to these protections.
Our "Get Out of Hell Free" card is not only parody, it is an obvious parody, right up to their name ("goof" cards!?!) Under the clear provisions of the U.S. Copyright law's "fair use" clause, as affirmed by federal copyright and trademark court cases that have gone all the way up to the Supreme Court, the GOOHF card is not a violation of Hasbro's copyrights or trademarks on "MONOPOLY®".