Suppose that Hamlet were still in copyright, and suppose that Stoppard’s R&G Are Dead used much, much more of the Hamlet character than it actually did — while still fleshing out the plot from an absurdist point of view. Perhaps Stoppard is arguing that R&G’s outward bafflement mirrors Hamlet’s inner bafflement. Is Stoppard infringing? Or is R&G fair use?

I don’t put a lot of weight on the marketing materials. In The Wind Done Gone litigation, my read of the case is that the “parody” argument got dressed up substantially for purposes of the lawsuit. But you’re right that there is tension between a view of fair use that puts pressure on what the defendant *thought* s/he was doing, and a view that puts pressure on what the audience understands is going on.

I was amazed to find out about Zero Hour a couple of years ago, and it raises all sorts of questions. One interesting question for modern copyright doctrine is whether something can be a parody when the audience is not likely to be familiar with the original. (A question I think is raised in the Obama Hope poster case, actually.) In Airplane’s case, I think the answer is yes, because Zero Hour was pretty formulaic; Airplane! works as a parody of disaster movie conventions even if you’ve never seen Zero Hour. I suppose the copyright owner could try to argue that more of Zero Hour was taken than necessary to accomplish this goal, but after Blanch v. Koons that argument has tougher sledding.

Here’s a real world example: If you go back through the first Airplane! movie and map it onto the first couple of Airport movies, as well as an older film called Zero Hour, (a) you’ll see more than a little self-awareness of how over-the-top serious the originals were; (b) Airplane! is copying a great deal of original (copyrighted) detail; and (c) as this great explanation details, it’s neither parody nor satire. If the producers of the original films had sued Abrahams, Zucker and Zucker for copyright infringement, I like to imagine that the defendants would have won the case, going away.

Put another way, if I write “Princess Bride 2,” about the further adventures of Buttercup, Wesley, et al., the mere fact that I make it a funny lampoon of romantic adventures (i.e., just like the original) isn’t going to save me, right?

There is a long, long tradition of radical change of context operating within the (legal definition of) parody in political discourse; in particular, consider the political context behind “Dover Beach” b/w “The Dover Bitch”, and a great many other works of Augustan England. I think the judge missed the point here, but that she was virtually bound to miss the point by the bad legal doctrine confining her.

All of that said, treating A Catcher in the Rye as self-parodying is hardly a new interpretation, and more than defensible; there was a panel at a regional MLA meeting in the mid-1980s on “Self-Parody in Midcentury American Fiction” (or, at least, that’s how I recall it), including a number of works from the “civilization ends at the Hudson” school. Professor Madison’s analysis as that somehow occupying the field is probably correct, and quite disturbing… and by itself demonstrates that the parody/satire distinction is untenable.