Class 13 Copyright, Winter, 2010 Fair Use: Parody Randal C. Picker Leffmann Professor of Commercial Law The Law School The University of Chicago Copyright © Randal C. Picker. All Rights Reserved.

December 7, 2015Copyright © Randal C. Picker Limitations on exclusive rights: Fair use n 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.

December 7, 2015Copyright © Randal C. Picker3 107 (Cont.) n In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include ‑‑ u (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

December 7, 2015Copyright © Randal C. Picker4 107 (Cont.) u (2) the nature of the copyrighted work; u (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and u (4) the effect of the use upon the potential market for or value of the copyrighted work.

December 7, 2015Copyright © Randal C. Picker5 Dr. Seuss v. Penguin, 109 F.3d 1394 (9 th Cir. 1997)

December 7, 2015Copyright © Randal C. Picker6 Says the Court n Not Fair Use u 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.

December 7, 2015Copyright © Randal C. Picker7 Says the Court u 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.

December 7, 2015Copyright © Randal C. Picker8 Leibovitz v. Paramount, 137 F.3d 109 (2 nd Cir. 1998)

December 7, 2015Copyright © Randal C. Picker9 Says the Court n Fair Use u 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. …

December 7, 2015Copyright © Randal C. Picker10 Says the Court u 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.

December 7, 2015Copyright © Randal C. Picker11 Says the Court u 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.

December 7, 2015Copyright © Randal C. Picker12 Parody Videos? n 1984 Hillary u Original 1984 Apple commercialcommercial u Obama campaign adad n George Bush/U2 u U2 livelive u The George Bush versionversion

December 7, 2015Copyright © Randal C. Picker13 Doing the Legal Analysis n Key Questions u Which copyrighted works are implicated in each video? u Is the work being used to conjure it so as to criticize it?

December 7, 2015Copyright © Randal C. Picker14 Playing the Two Songs in Campbell

Campbell on Parody n Says the Court u “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,’” December 7, 2015Copyright © Randal C. Picker15

Campbell on Parody n Says the Court u “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.’ ” December 7, 2015Copyright © Randal C. Picker16

December 7, 2015Copyright © Randal C. Picker17 Sup Ct’s Analysis in Campbell n Distinguishing Parody and Satire u “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.”

December 7, 2015Copyright © Randal C. Picker18 Sup Ct’s Analysis in Campbell n Definition of Satire u OED w a work “in which prevalent follies or vices are assailed with ridicule”

December 7, 2015Copyright © Randal C. Picker19 The Need for Control? n Applying Copyright’s Incentive Theory u 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? u How many authors won’t create if they can’t control subsequent parodies? n Does this mean that the fair use analysis is too ex post and insufficiently ex ante?

December 7, 2015Copyright © Randal C. Picker20 Trying to be Welfarists n The Voluntary Licensing Baseline u Campbell approached Acuff-Rose for a voluntary license of the work u Campbell wasn’t willing to pay a price that AR was willing to accept n Does this mean that Campbell values the use less than AR did? n Does the use reduce welfare?

December 7, 2015Copyright © Randal C. Picker21 Analysis n Doing Numbers u Assume AR values no parody at $50; Campbell will make $40 from doing parody u Campbell can’t buy parody right from AR u Consumer Surplus? w If consumer surplus > $10, parody increases welfare CS + $40 - $50 w Campbell and AR ignore that in their deal

December 7, 2015Copyright © Randal C. Picker22 Trying to be Coasians n Two Alternative Worlds u 1: Author controls parody right u 2: Author doesn’t control parody right n Hypo in Alternative 1 u Campbell approaches AR, offers too little, no parody produced

December 7, 2015Copyright © Randal C. Picker23 Trying to be Coasians n Hypo in Alternative 2 u Campbell is going to make parody; AR approaches Campbell and offers to pay him not to do so u Problem is universe of potential Campbells exist and AR would have to pay each not to make parody n Assignment of property right matters

December 7, 2015Copyright © Randal C. Picker24 Applying the Four Factors in Sec. 107 n The Four Factors u (1) Purpose and Character of the Use u (2) The Nature of the Copyrighted Work u (3) The Amount Used u (4) The Effect on the Market/Value of the Work

December 7, 2015Copyright © Randal C. Picker25 Applying the Four Factors in Sec. 107 n (1) Purpose and Character of the Use u Commercial use doesn’t necessarily result in unfair use n (2) The Nature of the Copyrighted Work u Music is core copyright expression

December 7, 2015Copyright © Randal C. Picker26 Applying the Four Factors in Sec. 107 n (3) Amount Used u Lyrics OK, remand on question of “whether repetition of the bass riff is excessive copying” n (4) Market for Work u Includes market for derivative work; remand for info on market for rap versions of Pretty Woman

December 7, 2015Copyright © Randal C. Picker27 Screen Capture Slide

December 7, 2015Copyright © Randal C. Picker28 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.

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December 7, 2015Copyright © Randal C. Picker34 Screen Capture Slide Copyright © 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 n The OpinionOpinion n Understanding Parody u “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.” December 7, 2015Copyright © Randal C. Picker35

Suntrust Bank n Continuing u “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.” December 7, 2015Copyright © Randal C. Picker36

Suntrust Bank n Continuing u “Under this definition, the parodic character ofTWDG is clear.” December 7, 2015Copyright © Randal C. Picker37

Six Cases, Four Factors December 7, 2015Copyright © Randal C. Picker38 OJ Cat in the Hat Naked Gun Demi 1984 Hillary Bush U22 Live Crew Wind Done Gone Use MadeNot to criticize original; attention? Attention; criticize original (transfor mation) Not to criticize original; storytelling; attention? Not to criticize original; attention; storytelling Criticize original (transform ation); storytelling Attention; criticize original (transform ation); storytelling Nature of Work CoreCore?PeripheryCore ExtentSubstantialAlmost total Total M: Heart? L: Some Substantial Mkt EffectWork: 0 Deriv Works: ? W: 0 DW: ? W: 0 DW: ? W: 0 DW: ? W: 0 DW: ? W: 0 DW: ?