Recent reading: pastiche over parody

Zahr Said Stauffer, ‘Po-mo Karaoke’ or Postcolonial Pastiche? What Fair Use Analysis Could Draw from Literary Criticism, 31 Colum. J.L. & Arts 43 (2007):

Stauffer argues that rather than using the ill-fitting parody/satire distinction, courts should look at pastiche – “a genre composed of a number of mismatched or unusually combined elements, styles, or modes” – to assess transformativeness. The Wind Done Gone case reached the right result for the wrong reason:

The district court is right to refer to what Randall does in a few instances as “merely paraphras[ing] Gone With the Wind” and “adopt[ing] almost verbatim” some of the novel’s elements. The point of a postcolonial rewriting is to take the reins back in order to control the direction of cultural representations in the future and correct those representations deemed to be tarnishing or misrepresenting the past. One way to do so is to take the dominant figure’s language and use it, verbatim, in a context that channels power back to the previously oppressed figure.

…. [W]hen power relations over language choice are part of what a rewriting author seeks to challenge and reshape, it may be expected that more protected expression will be borrowed than would normally be allowed. The expression itself is the terrain to be recharted; it is not merely the substance or unprotected idea that the writer wishes to reshape.

…. With TWDG, we see that Randall’s thematization of this language problem has potential copyright implications. Mammy several times uses precisely the same words as she does in GWTW. Yet her saying those same lines in the changed context of the derivative work gives her old lines new, sometimes radicalized, meaning. Now, instead of Mammy being the lone African-American voice that does not speak ‘white’ English, her voice is embedded in a narrative that is dominated by a non-white voice. Mammy’s words take on a new significance and a new empowerment.