Class 13 Copyright, Winter, 2010 Fair Use: Parody Randal C. Picker Leffmann Professor of Commercial Law The Law School The University of Chicago 773.702.0864/[email protected]

Class 13Copyright, Winter, 2010

Fair Use: ParodyRandal C. PickerLeffmann Professor of Commercial Law

The Law School

The University of Chicago

773.702.0864/[email protected] © 2005-10 Randal C. Picker. All Rights Reserved.

April 21, 2023 Copyright © 2005-10 Randal C. Picker 2

107. Limitations on exclusive rights: Fair use

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.


107 (Cont.)

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;


107 (Cont.)

(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.


Dr. Seuss v. Penguin, 109 F.3d 1394 (9th Cir. 1997)


Says the Court Not Fair Use

These stanzas and the illustrations simply retell the Simpson tale. Although The Cat NOT in the Hat! does broadly mimic Dr. Seuss’ characteristic style, it does not hold his style up to ridicule. The stanzas have “no critical bearing on the substance or style of” The Cat in the Hat. Katz and Wrinn merely use the Cat’s stove-pipe hat, the narrator (“Dr.Juice”), and the title (The Cat NOT in the Hat!) “to get attention” or maybe even “to avoid the drudgery in working up something fresh.” Acuff-Rose, 510 U.S. at 580.


Says the Court

While Simpson is depicted 13 times in the Cat’s distinctively scrunched and somewhat shabby red and white stove-pipe hat, the substance and content of The Cat in the Hat is not conjured up by the focus on the Brown-Goldman murders or the O.J. Simpson trial. Because there is no effort to create a transformative work with “new expression, meaning, or message,” the infringing work’s commercial use further cuts against the fair use defense.


Leibovitz v. Paramount, 137 F.3d 109 (2nd Cir. 1998)


Says the Court Fair Use

Whether it “comments” on the original is a somewhat closer question. Because the smirking face of Nielsen contrasts so strikingly with the serious expression on the face of Moore, the ad may reasonably be perceived as commenting on the seriousness, even the pretentiousness, of the original. The contrast achieves the effect of ridicule that the Court recognized in Campbell would serve as a sufficient “comment” to tip the first factor in a parodist’s favor. …


Says the Court In saying this, however, we have some concern

about the ease with which every purported parodist could win on the first factor simply by pointing out some feature that contrasts with the original. Being different from an original does not inevitably “comment” on the original. Nevertheless, the ad is not merely different; it differs in a way that may reasonably be perceived as commenting, through ridicule, on what a viewer might reasonably think is the undue self-importance conveyed by the subject of the Leibovitz photograph.


Says the Court

A photographer posing a well known actress in a manner that calls to mind a well known painting must expect, or at least tolerate, a parodist’s deflating ridicule.


Parody Videos?

1984 Hillary Original 1984 Apple commercial Obama campaign ad

George Bush/U2 U2 live The George Bush version


Doing the Legal Analysis

Key Questions Which copyrighted works are implicated in

each video? Is the work being used to conjure it so as to

criticize it?


Playing the Two Songs in Campbell

Campbell on Parody

Says the Court “The germ of parody lies in the definition of the

Greek parodeia, quoted in Judge Nelson’s Court of Appeals dissent, as ‘a song sung alongside another.’ 972 F. 2d, at 1440, quoting 7 Encyclopedia Britannica 768 (15th ed. 1975). Modern dictionaries accordingly describe a parody as a ‘literary or artistic work that imitates the characteristic style of an author or a work for comic effect or ridicule,’”


Campbell on Parody

Says the Court “or as a ‘composition in prose or verse in

which the characteristic turns of thought and phrase in an author or class of authors are imitated in such a way as to make them appear ridiculous.’ ”



Sup Ct’s Analysis in Campbell

Distinguishing Parody and Satire “Parody needs to mimic an original to make

its point, and so has some claim to use the creation of its victim’s (or collective victims’) imagination, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing.”


Sup Ct’s Analysis in Campbell

Definition of Satire OED

a work “in which prevalent follies or vices are assailed with ridicule”


The Need for Control?

Applying Copyright’s Incentive Theory Do we think that we need to give the author

control over potential parodies to get the author to create the work in the first place?

How many authors won’t create if they can’t control subsequent parodies?

Does this mean that the fair use analysis is too ex post and insufficiently ex ante?


Trying to be Welfarists

The Voluntary Licensing Baseline Campbell approached Acuff-Rose for a

voluntary license of the work Campbell wasn’t willing to pay a price that

AR was willing to accept Does this mean that Campbell values the

use less than AR did? Does the use reduce welfare?


Analysis

Doing Numbers Assume AR values no parody at $50;

Campbell will make $40 from doing parody Campbell can’t buy parody right from AR Consumer Surplus?

If consumer surplus > $10, parody increases welfare CS + $40 - $50

Campbell and AR ignore that in their deal


Trying to be Coasians

Two Alternative Worlds 1: Author controls parody right 2: Author doesn’t control parody right

Hypo in Alternative 1 Campbell approaches AR, offers too little,

no parody produced


Trying to be Coasians

Hypo in Alternative 2 Campbell is going to make parody; AR

approaches Campbell and offers to pay him not to do so

Problem is universe of potential Campbells exist and AR would have to pay each not to make parody

Assignment of property right matters


Applying the Four Factors in Sec. 107

The Four Factors (1) Purpose and Character of the Use (2) The Nature of the Copyrighted Work (3) The Amount Used (4) The Effect on the Market/Value of the

Work



(1) Purpose and Character of the Use Commercial use doesn’t necessarily result

in unfair use (2) The Nature of the Copyrighted Work

Music is core copyright expression



(3) Amount Used Lyrics OK, remand on question of “whether

repetition of the bass riff is excessive copying”

(4) Market for Work Includes market for derivative work; remand

for info on market for rap versions of Pretty Woman


Screen Capture Slide



Copyright © 1936 By Macmillan Publishing Company, a division of Macmillan, Inc.

Copyright renewed 1964 by Stephens Mitchell and Trust Company of Georgia as Executors of Margaret Mitchell Marsh. Copyright renewed 1964 by Stephens Mitchell

All rights reserved, including the right of reproduction in whole or in part in any form.












Screen Capture SlideCopyright © 2001 by Alice Randall

All rights reserved

This novel is the author’s critique of and reaction to the world described by Margaret Mitchell’s Gone with the Wind. It is not authorized by the Stephens Mitchell Trusts, and no sponsorship or endorsement by the Mitchell Trusts is implied.

Suntrust Bank

The Opinion Understanding Parody

“The Supreme Court’s definition of parody in Campbell, however, is somewhat vague. On the one hand, the Court suggests that the aim of parody is ‘comic effect or ridicule,’ but it then proceeds to discuss parody more expansively in terms of its ‘commentary’ on the original.”


Suntrust Bank

Continuing “In light of the admonition in Campbell that courts

should not judge the quality of the work or the success of the attempted humor in discerning its parodic character, we choose to take the broader view. For purposes of our fair-use analysis, we will treat a work as a parody if its aim is to comment upon or criticize a prior work by appropriating elements of the original in creating a new artistic, as opposed to scholarly or journalistic, work.”


Suntrust Bank

Continuing “Under this definition, the parodic character

ofTWDG is clear.”


Six Cases, Four Factors


OJ Cat in the Hat

Naked Gun Demi

1984 Hillary

Bush U2 2 Live Crew

Wind Done Gone

Use Made Not to criticize original; attention?

Attention; criticize original (transformation)

Not to criticize original; storytelling; attention?

Not to criticize original; attention; storytelling

Criticize original (transformation); storytelling

Attention; criticize original (transformation); storytelling

Nature of Work

Core Core? Periphery Core Core Core

Extent Substantial Almost total

Total Total M: Heart?L: Some

Substantial

Mkt Effect Work: 0Deriv Works: ?

W: 0DW: ?

W: 0DW: ?

W: 0DW: ?

W: 0DW: ?

W: 0DW: ?

Documents

Class 13 Copyright, Winter, 2010 Fair Use: Parody Randal C. Picker Leffmann Professor of Commercial Law The Law School The University of Chicago 773.702.0864/[email protected]