For this week, I’ll be posting some comments highlighting cases and trends in fair use.
For my first post I thought I would look at parodies, and their role in transforming fair use law itself. Today we think of parodies as practically a paradigmatic fair use, but they haven’t always been viewed so positively. The history has been rather mixed — judges’ sensitivities towards the lewdness and disrespect within parodies has sometimes trumped their appreciation for the political or social commentary of the parody. Call me a legal realist, but sometimes that distaste disfigured the court’s approaches to fair use.
Consider these earlier negative approaches to parodies.
In Benny v. Loew’s Inc., 239 F.2d 532 (9th Cir. 1956), aff’d by an equally divided Supreme Court, 356 U.S. 43, the 9th Circuit considered Jack Benny’s parody of a popular play, “Gas Light” — which was so popular that the phrase “gas light” came to represent actions like those of the villainous protagonist, who attempted to drive his wife insane. The court, discussing the “so-called doctrine of fair use”, summarily held that presenting “a serious dramatic work … with actors walking on their hands or with other grotesqueries” was not a fair use. Too much of the original was used, and the Court seemed critical of the “grotesqueries”, giving little weight to any commentary they added.
In Walt Disney Productions v. Air Pirates, 581 F.2d 751 (9th Cir. 1978), the defendants created a comic book, “Air Pirates Funnies”, which depicted various Disney characters fraternizing in a manner that Disney Corp. felt to be un-Disney-like. (But where do Huey, Dewey, and Louie come from? And what else could explain Goofy but drugs?) Disney sued for copyright and trademark infringement, and the court, in an important “character copyright” case, found that the Disney characters were copyrighted. The court deemed that because the parody focused on the characters’ “personalities, their wholesomeness and their innocence”, the use was not fair use, because it took more of the graphics than was necessary. It’s hard for me to believe this decision would go the same way today.
And 20 years later, in Dr. Seuss Enters., L.P. v. Penguin Books USA, Inc., 924 F. Supp. 1559 (S.D. Cal. 1996), aff’d, 109 F.3d 1394 (9th Cir. 1997), the 9th Circuit again weighed against parody, holding that Dr. Seuss’s copyrighted expression (rhyming schemes, and iconic “hat”, for example) was taken by the authors of “The Cat Not in the Hat”, which told the story of the O. J. Simpson allegations and trial in a Seussian style. The Court determined that the authors were targeting O. J. Simpson, and just using Dr. Seuss — not targeting his art directly — and so infringed Dr. Seuss’s copyright. The reverence for Dr. Seuss is evident here, too, and it’s hard to escape the conclusion that the court’s analysis was tainted by personal disapprobation of the parodist.
But certainly it wasn’t all doom and gloom for parodies. Many courts did deem parodies to be fair uses — for instance, Berlin v. EC Publications, Inc., 329 F.2d 541 (2d Cir. 1941), which found fair use for a collection of Mad Magazine parody lyrics “to be sung to the tone of” various popular songs; and Elmsmere Music, Inc. v. National Broadcasting Company, 623 F.2d 252 (2d Cir. 1980), in which Saturday Night Live portrayed the town fathers of the Biblical town of Sodom singing “I Love Sodom” to the tune of “I Love New York”. The Elmsmere court affirmed, noting that, “in today’s world of unrelieved solemnity, copyright law should be hospitable to the humor of parody.” In yet another music parody case, Fisher v. Dees, 794 F.2d 432 (9th Cir. 1986), the 9th Circuit deemed that “When Sonny Sniffs Glue”, a parody of “When Sonny Gets Blue” was a fair use; the parody only took enough to conjure up the original.
So between the cases that were hospitable toward humor, and the others that took a rather dour and critical approach to parody, the general state of the law on parodies was uncertain to say the least. Numerous questions abounded for the anxious parodist. Could commercial parodies be considered fair use? How much could be taken? How significant was the difference between “parody” (a work targeting another work) and “satire” (a work targeting society more generally)? Did incorporating lewdness into a work make it more, or less, likely to be found fair use?
There were no easy answers, and the regular back-and-forth in the courts on parodies eventually wound up in the Supreme Court, which in 1993 granted certiorari on the Campbell v. Acuff-Rose case, to determine whether a “commercial parody could be a fair use.” In Campbell, the members of 2 Live Crew were accused of copyright infringement for its parody of Roy Orbison’s “Pretty Woman.” 2 Live Crew (Luther Campbell) argued that their work was a parody of the original, and thus protected as a fair use . Acuff-Rose (Roy Orbison’s record label) argued that because 2 Live Crew’s version was commercial, it could not be a fair use; the 9th Circuit agreed with Acuff-Rose, finding copyright infringement.
The US Supreme Court granted cert. in 1993, and held oral arguments in late 1993. (You can listen to the oral arguments at Oyez, a wonderful site dedicated to Supreme Court jurisprudence. The shift in style of oral argument in 20 years is marked.) In March 1994, the Supreme Court issued its opinion, which unanimously reversed the harmful presumption that commercial uses could not be fair.
But it did a lot more than that, and in what seemed at first to be a fairly modest and unassuming way (characteristic of its author, Justice David Souter). In its unanimous opinion, the Court cited to a number of experts on copyright, including Judge Pierre Leval’s 1990 article, “Toward a Fair Use Standard”, 103 Harvard Law Review 1105 (1990). The passage bears repeating:
The first factor in a fair use enquiry is “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.” 107(1). This factor draws on Justice Story’s formulation, “the nature and objects of the selections made.” Folsom v. Marsh, 9 F.Cas., at 348. The enquiry here may be guided by the examples given in the preamble to 107, looking to whether the use is for criticism, or comment, or news reporting, and the like, see 107. The central purpose of this investigation is to see, in Justice Story’s words, whether the new work merely “supersede[s] the objects” of the original creation, Folsom v. Marsh, supra, at 348; accord, Harper & Row, supra, at 562 (“supplanting” the original), or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is “transformative.” Leval 1111. [internal citations omitted]
This simple citation to Leval on “transformativeness” has arguably transformed copyright law. Leval’s article was well-reasoned and well-regarded — you should read it, if you haven’t. In puzzling through his own fair use cases, Leval crystallized much earlier fair use jurisprudence on productive uses under the rubric of “transformativeness”, arguing persuasively that transformative uses fulfill the Constitutional purposes of copyright, and should thus be favored. The U.S. Supreme Court, citing to Leval here and in several other places throughout Campbell, effectively ratified the “transformativeness” approach.
The transformativeness approach has created solid ground for numerous productive uses, including search indexes (Kelly v. Arriba; Perfect 10 v. Amazon.com; Perfect 10 v. Google; Authors Guild v. HathiTrust; Authors Guild v. Google); uses of works for historic recontextualizations (Bill Graham Archives v. Dorling Kindersley; SOFA Entertainment v. Dodger Productions); uses of works in databases to detect plagiarism (A.V. v. iParadigm); appropriation art (Prince v. Cariou; Morris v. Young) — and that’s just a few topics off the top of my head.
“Transformativeness” has been criticized recently, by copyright holders and even by the Seventh Circuit (Kienitz v. Sconnie Nation). But in some sense, the criticisms are less about whether the doctrine is correct or not, and more a complaint that the concept has been too successful. In fact, the reason that the “transformativeness” analysis has become so influential is because it so successfully captured the essence of what courts must do in a fair use analysis: Assess and support the underlying purposes of copyright law, to “promote the Progress of Science and useful Arts.”
So, at the beginning of Fair Use Week 2015, a toast to Judge Leval, Luther Campbell and the 2 Live Crew crew, and Justice David Souter, for transforming fair use, and helping to “promote the Progress”.share: by