Class 13 Copyright, Spring, 2008 Fair Use: Parody Randal C. Picker Leffmann Professor of Commercial...

Class 13Copyright, Spring, 2008

Fair Use: ParodyRandal C. PickerLeffmann Professor of Commercial Law

The Law School

The University of Chicago

773.702.0864/[email protected] © 2005-08 Randal C. Picker. All Rights Reserved.

April 20, 2023 Copyright © 2005-07 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.


Framing the Parody Discussion

Key Questions What is a parody? Why does classification as parody matter?


Defining Parody

American Heritage Dictionary a “literary or artistic work that broadly

mimics an author’s characteristic style and holds it up to ridicule.”

Sup Ct in Campbell “Joinder of reference and ridicule”


Three Situations re Parody

Use the prior work To comment on that work To get attention for the new work To create the new work in the best fashion

possible Telling the story using the elements of a

shared culture


Parody Videos

1984 Hillary http://www.youtube.com/watch?v=6h3G-

lMZxjo George Bush/U2

http://www.youtube.com/watch?v=PXnO_FxmHes


Parody Videos

Brokeback Mountain Original Trailer:

http://www.youtube.com/watch?v=-xuugq7fito

Brokeback to the Future: http://www.youtube.com/watch?v=zfODSPIYwpQ


Parody Videos

Star Wars: http://www.youtube.com/watch?v=omB18oRsBYg

Hogwarts: http://www.youtube.com/watch?v=PmtP5AzppO4


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?


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.


Playing the Two Songs in Campbell


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

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