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It is South by Southwest® here in Austin this week. While most of the students are away, the town is full of music, films and interactive events. In searching for something with a legal angle that I could write about, I came across a potential legal dispute involving the movie “MacGruber” of SNL fame, which premieres tonight at the Paramount. The dispute stems from a cease and desist letter sent by the attorneys of the creator of the original MacGyver TV series. Apparently, MacGyver is also being made into a movie. The letter did not stop the premier, but raises the issue of copyright infringement.

Essentially, before a suit for infringement can be brought in federal court, the work must be registered at the Copyright Office. The courts will examine whether the alleged infringing work is “substantially similar” to the original work, and if the look and feel, among other things, of the original work was improperly copied. Although it is unlikely that anyone would think that MacGruber was created independently, it was clearly based on the MacGyver character, there is an exception to infringement called “fair use.” One type of fair use is parody. A parody is the copying of a work in a satirical and humorous manner. I don’t think anyone will claim that MacGruber is anything but a copying of MacGyver in a satirical and humorous manner, but not all parodies are automatically fair use.

The most prominent case involving this issue is Campbell v. Acuff-Rose Music which was decided by the Supreme Court in 1994. Essentially, 2LiveCrew recorded a parody of Roy Orbison’s “Oh, Pretty Woman,” and like the creator of MacGyver, the owner of the Pretty Woman copyright felt that the parody was an infringement. Although the lower court held that the commercial nature of the 2Live Crew version of the song automatically excluded it from fair use, the Supreme Court ruled that because the work was so transformative (different from the original), the work would not impact the commercial value of the original work as they operated in completely different markets (one of the factors in fair use).

What does this mean for MacGruber? I would predict that a court would find MacGruber to be transformative parody and serving a different market than MacGyver and thus a fair use. I wish them a successful premiere.

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