Behind the Lines Productions, in an attempt to feed off of the wildly successful “Twilight” movie franchise, created a parody film, “Twiharder.” The brooding Edward Cullen is now Bedford Mullen, while Bella Swan becomes Stella Pond. The trailer, which can be viewed here, highlights the movie’s attempts to poke fun at Kristen Stewart’s acting skills, the emphasis on Jacob’s abs, and Edward’s cringe-inducing obsession with Bella. Behind the Lines asserts that it “portrayed hyper-exaggerated caricatures from The Twilight Saga and lampooned expressive elements embodied in Defendants’ pre-existing works through imitative reference” and used the Twilight story “as an object of ridicule, criticism and sociopolitical commentary.”

But after sucking material from “Twilight,” Behind the Lines found itself with a cease and desist letter from Summit Entertainment, and its parent company, Lionsgate Entertainment. Although Behind the Lines had previously found a distributor for “Twiharder,” once the distributor learned of the cease and desist notice, it decided against licensing the film.

An angry Behind the Lines, thirsting for blood, has sued Summit and Lionsgate for $500 million in damages, and also seeks cancellation of their trademarks. Behind the Lines alleges that the companies have created an intellectual property monopoly over the “Twilight” franchise by engaging in anticompetitive conduct. They argue that by executing a “vexatious legal strategy that seeks to collapse every conceivable intellectual property right granted by trademark or copyright law,” the companies have effectively crushed any efforts to (legally) play off of the series.

Behind the Lines’ suit claims that “Twiharder” is in the Fair Use Zones that are “populated by independent filmmakers, parodists and other ‘counter-cultural’ artists who create separate or derivative works that may be related to, inspired by or comment upon the pop culture events that dominate the national Cineplex and, by extension the attitudes, perspectives and behaviors of the populace.”

The landmark case Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994), established that a commercial parody could be fair use under § 107 of the Copyright Act of 1976. In that case, a rap music group created a parody of Roy Orbison’s “Oh, Pretty Woman.” The Supreme Court held that the parody was a fair use that limited the exclusive rights of the original. Section 107 reads reads as follows:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
 (2) the nature of the copyrighted work;
 (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

Should Behind the Lines have the right to profit from their use of characters and plots clearly based on a trademarked franchise? Do you think “Twiharder” constitutes Fair Use under the Copyright Act? Are Summit and Lionsgate intruding on free expression and artistic rights with their expansive trademark coverage?

–Mary Fletcher King

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5 Responses to Parody: A Vampiric Use of the Original?

  1. Ryan says:

    Jeff, that’s an interesting point that it could bring new viewers to watch the Twilight series (is it a series? I have not seen it). A company has to enforce its trademark or risk a court holding that the company has abandoned the trademark, but enforcing the trademark could actually lead to less people knowing about the film in the public. Obviously this negative effect is negated with a famous film like Twilight, but with lesser-known films there is an interesting trade-off that a company has to make whichever way it chooses to proceed.

  2. Jeff Sheehan says:

    Amanda raises an interesting point about the choice to enforce. It seems to me that parody might often drive a new group of consumers to the original source. I expect there’s a nontrivial number of Twiharder viewers who might decide to dig into the Twilight material in some way, if for no other reason than to improve their enjoyment of the parody. Perhaps the tradeoff isn’t worth it to the Twilight crew, but in other cases it might be. I know that Sense and Sensibility and Seamonsters led me to pull some of my high school British Literature books back off the shelf.

  3. Amanda Nguyen says:

    I should’ve mentioned — the trailer has less than 60,000 views on YouTube.

  4. Amanda Nguyen says:

    Really enjoyed your wordplay.

    It’s a bit funny that Behind the Lines received a cease and desist order. Not because it’s unexpected–Summit will enforce its rights–but because there has to be numerous spoofs on Kristen Stewart’s bad acting. I’d be interested to see who Summit goes after and why.

    I agree with Brad in that parodies and spoofs should have robust protection. It seems Behind the Lines probably has a pretty different audience in mind.

  5. Bradlee Edmondson says:

    I for one am in favor of strong protection of parody and satire. Based on what we know now, it would pretty clearly seem to be a case that demonstrates why copyright protection is sometimes called “thin.” For characters and ideas, there is no protection, so if they did not copy dialog or scenes (or only enough to make fun of it), then Behind the Lines should be home free.

    Still, this seems to be as much about market realities and power relationships as it is about copyright. It will be interesting to see what comes of this case, and whether there is any solid evidence of anticompetitive behavior. If so, BtL won’t get $500M, but it might be able to gorge on substantial damages.