The Second Circuit is not the only court struggling with parody determinations. The current confusion over what constitutes a parody started when the Supreme Court first articulated the modern doctrine in Campbell v. Acuff-Rose Music, Inc. In that opinion, which was the Supreme Court's first decision on parody in forty-three years, the Court attempted to clarify what status a parody held in copyright law-an area of significant perplexity for courts. That inquiry, it said, turns on whether the work can "reasonably be perceived" as a parody. But that inquiry is not outcome-determinative: regardless of a work's parody status, courts still must analyze whether the work violates copyright using the fair use factors in 17 U.S.C. § 107.

Noticeably absent from this holding, and subsequent lower court decisions, are methods for determining what can reasonably be perceived or who reasonably perceives the work. While some scholars have pointed out the tension in attempting to give parodies both special and neutral protection, none have examined systematically how lower courts have applied the Campbell test, or how courts have used a finding of parody to inform their fair use analysis. This Article performs these examinations, the results of which suggest that the Supreme Court failed to adequately articulate the foundational elements of this reasonable-perception test (RPT), causing lower courts to apply the test in a variety of ways. Although the parody determination also affects the fair use analysis, courts have found fair use uniformly after determining the work qualified as a parody.