1. Class 13 Copyright, Spring, 2008 Fair Use: Parody Randal C. Picker Leffmann Professor of Commercial Law The Law School The University of Chicago 773.702.0864/r-picker@uchicago.edu Copyright © 2005-08 Randal C. Picker. All Rights Reserved.

2. October 31, 2015Copyright © 2005-07 Randal C. Picker2 107. 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.

3. October 31, 2015Copyright © 2005-07 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;

4. October 31, 2015Copyright © 2005-07 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.

5. October 31, 2015Copyright © 2005-07 Randal C. Picker5 Framing the Parody Discussion n Key Questions u What is a parody? u Why does classification as parody matter?

6. October 31, 2015Copyright © 2005-07 Randal C. Picker6 Defining Parody n American Heritage Dictionary u a “literary or artistic work that broadly mimics an author’s characteristic style and holds it up to ridicule.” n Sup Ct in Campbell u “Joinder of reference and ridicule”

7. October 31, 2015Copyright © 2005-07 Randal C. Picker7 Three Situations re Parody n Use the prior work u To comment on that work u To get attention for the new work u To create the new work in the best fashion possible w Telling the story using the elements of a shared culture

8. October 31, 2015Copyright © 2005-07 Randal C. Picker8 Parody Videos n 1984 Hillary u http://www.youtube.com/watch?v=6h3G- lMZxjo http://www.youtube.com/watch?v=6h3G- lMZxjo n George Bush/U2 u http://www.youtube.com/watch?v=PXnO_Fx mHes http://www.youtube.com/watch?v=PXnO_Fx mHes

9. October 31, 2015Copyright © 2005-07 Randal C. Picker9 Parody Videos n Brokeback Mountain u Original Trailer: http://www.youtube.com/watch?v=- xuugq7fito http://www.youtube.com/watch?v=- xuugq7fito u Brokeback to the Future: http://www.youtube.com/watch?v=zfODSPI YwpQ http://www.youtube.com/watch?v=zfODSPI YwpQ

10. October 31, 2015Copyright © 2005-07 Randal C. Picker10 Parody Videos u Star Wars: http://www.youtube.com/watch?v=omB18o RsBYg http://www.youtube.com/watch?v=omB18o RsBYg u Hogwarts: http://www.youtube.com/watch?v=PmtP5Az ppO4 http://www.youtube.com/watch?v=PmtP5Az ppO4

11. October 31, 2015Copyright © 2005-07 Randal C. Picker11 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?

12. October 31, 2015Copyright © 2005-07 Randal C. Picker12 Dr. Seuss v. Penguin, 109 F.3d 1394 (9 th Cir. 1997)

13. October 31, 2015Copyright © 2005-07 Randal C. Picker13 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.

14. October 31, 2015Copyright © 2005-07 Randal C. Picker14 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.

15. October 31, 2015Copyright © 2005-07 Randal C. Picker15 Leibovitz v. Paramount, 137 F.3d 109 (2 nd Cir. 1998)

16. October 31, 2015Copyright © 2005-07 Randal C. Picker16 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. …

17. October 31, 2015Copyright © 2005-07 Randal C. Picker17 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.

18. October 31, 2015Copyright © 2005-07 Randal C. Picker18 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.

19. October 31, 2015Copyright © 2005-07 Randal C. Picker19 Playing the Two Songs in Campbell

20. October 31, 2015Copyright © 2005-07 Randal C. Picker20 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.”

21. October 31, 2015Copyright © 2005-07 Randal C. Picker21 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”

22. October 31, 2015Copyright © 2005-07 Randal C. Picker22 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?

23. October 31, 2015Copyright © 2005-07 Randal C. Picker23 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?

24. October 31, 2015Copyright © 2005-07 Randal C. Picker24 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

25. October 31, 2015Copyright © 2005-07 Randal C. Picker25 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

26. October 31, 2015Copyright © 2005-07 Randal C. Picker26 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

27. October 31, 2015Copyright © 2005-07 Randal C. Picker27 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

28. October 31, 2015Copyright © 2005-07 Randal C. Picker28 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

29. October 31, 2015Copyright © 2005-07 Randal C. Picker29 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