In re-evaluating whether the Jib Jab "This Land" animation is parody or satire, Chris Cohen wonders whether a post-hoc evaluation of a work's parodic content is justifiable: Am I to be labeled a flip-flopper?
The four factor parody inquiry is essentially an objective one because it utilizes this post hoc reasoning - the best stuff your attorney can come up with after the fact. But actually this appears to be an attempt to get at a very subjective question: just what was the author thinking when doing the work, even if the thoughts were in the background or subconscious. In the end what the author was thinking really can be irrelevant to the the legal finding.
The threshold question in evaluating a work's status as a fair-use parody is "whether a parody may reasonably be perceived." Campbell v. Acuff-Rose Music. The parody need not even be in good taste. Whether a work is parody must be considered by using an objective, post-hoc evaluation rather than an evaluation of intent. Judging parodic content based on an author's original intent creates an evidentiary problem, if it doesn't make a finding of parody nearly impossible to establish. Allowing a post-hoc justification of parodic content serves society by encouraging, rather than chilling, speech and creativity.
It is unfeasible, if not impossible to accurately document the creator's intent regarding parody. Even for works created with the explicit goal of parodying another work, a creator may not have any evidence to prove that was her intent. Rather (especially in the age of the blog) the creator may have merely written and published a first draft, without notes, without discussion, but with explicit parodic intent. By using an objective standard, courts avoid ruling on insufficient evidence.
Even if it is possible to document the creator's parodic intent (or lack thereof) beforehand, if a work is unintentionally parodic, it has inherent social value and that expression should be protected by the First Amendment, rather than prohibited by copyright. A work created with satire, comedy, or mere vanity as the creative impetus may yet provide biting insight into the original work and be a most effective parody. With the objective standard, the public is not deprived of such works and any chilling of speech is reduced to a minimum.
In order to support a finding of parody, the work need not have been created with explicit parodic intent, but still must have more than a bare minimum of parodic content. In granting summary judgment and finding fair use parody in Mastercard v. Nader, the court noted that the parodic "message need not be popular nor agreed with. It may be subtle rather than obvious. It need only be reasonably perceived."
The post-hoc, "lawyer's best argument" evaluation of parody is used not only because of the evidentiary necessity, but because it encourages, rather than chills speech.