Why is PG posting this?

PG received a query from a non-client this morning asking about creating a parody of another work.

One of the things which wading through this excerpt from the original law review article published in 1990 (no, the excerpt isn’t close to being the whole thing) may convince the intelligent layperson that the law relating to the fair use exception to the protections included in US copyright law is that, while there may be some bright-line situations where fair use applies, where parody is involved, the decisions under copyright law tend to be a sea of gray.

A brief tutorial:

1. Copyright is a federal law in the United States which means that the law applies across the United States regardless of state boundaries.
2. Because copyright is a federal law, federal courts (as opposed to state courts) are where copyright law is litigated and determined.
3. Federal District Courts are the first level of federal courts and hear all sorts of different cases that arise under federal law. (PG won’t discuss the diversity jurisdiction federal courts have. There is too much legal stuff in this post already.)
4. If a litigant in a case heard and decided in a Federal District Court believes the federal judge made an error in the court’s decision, the litigant has the right to appeal the judge’s decision to the US Court of Appeals.
5. There are thirteen different courts of appeal. There are also 13 different “Circuits” into which the courts of appeal are divided. The majority of the Circuits are geographical and handle appeals from the decisions of the Federal District Courts within their geographical boundaries.
6. Those who read through this post will see two Courts of Appeal mentioned.
7. The 2nd Circuit Court sits in New York City handles appeals from district courts located in Connecticut, New York, and Vermont.
8. The 9th Circuit Court sits in courthouses located in San Francisco, Pasadena, Portland and Seattle and hears appeals from district courts in Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Northern Mariana Island, and Washington. As astute observers may have concluded, the boundaries of the 9th Circuit were set many, many years ago when the population in the Circuit was much, much smaller than it is today. The 9th Circuit has a great many judges.
9. Lots of copyright cases are litigated in New York and California because New York has been the center of US print publishing for a long time and California has been the center of motion picture creation and ownership as well as the headquarters for a great many companies that create, market and sell music recordings. PG won’t go into federal jurisdiction and venue rules, but they point most of these cases to the federal courts in those two states. Each circuit court tends to think it’s smarter than any other circuit court, but they don’t always agree with each other.
10. Theoretically, someone who’s dissatisfied with a decision from any circuit court can appeal that court’s decision to the US Supreme Court. However, setting aside appeals that the Supreme Court must hear (a small percentage of all Appeals Court cases), the Supreme Court is free to choose which appeals it accepts from people who aren’t happy with the way the 2nd and 9th Circuits decided their cases. Generally, the Supreme Court accepts 100-150 cases each year. The 9th Circuit decides 10,000-12,000 cases per year. The Supreme Court hears very few copyright cases, so the copyright action is in the Circuit Courts of Appeal.

End of Civics Lesson. PG will have some comments for whoever makes it to the bottom of this post.

From the Fordham Intellectual Property, Media and Entertainment Law Journal (1990):

Musical parody, both as folk art and high satire, has existed as a form of critical and humorous expression for centuries. Its popularity is evidenced by the humorous indulgences of musical giants the likes of Mozart, Gilbert and Sullivan, Spike Jones, and Allan Sherman. Not, however, until recording artist Weird Al Yankovic began making records and music videos like “Living With A Hernia”(sung to the tune of the hit “Living in America”) and “I Lost On Jeopardy” (sung to the melody of “Our Love’s in Jeopardy”), did the American music industry finally reawaken to the reality of just how lucrative music parody can be. In light of Mr. Yankovic’s startling commercial success (well over three million copies of his records have been sold), the issue arises whether such highly marketable song parodies represent “fair uses” of the lampooned underlying musical works, or whether the U.S. Copyright Act’ requires Weird Al and other aspiring musical parodists to secure licenses from the copyright owners of such works prior to plying their trade. This article will consider that question in light of the recent Ninth Circuit Court of Appeals decision in Fisher v. Dees, and the most recent rulings of the Second Circuit Court of Appeals, which have substantially clarified the fair use doctrine’s application to musical parodies.

A WORKING DEFINITION

Parody has been defined as “writing in which the language and style of [another] author or work is closely imitated for comic effect or ridicule, often with certain peculiarities greatly heightened or exaggerated.”‘ In order to be effective, therefore, a parody must draw upon elements of the original work. It has been said that “the parodist utterly fails in his task if his audience does not realize that his work has as its source another author’s work.”

Thus, there is an inherent tension between copyright law (which seeks to protect original works of authorship from infringement) and parody, the legal resolution of which historically rested on a judicial determination of the relative artistic merit and literary value of parody. This would seemingly have placed musical parodists in a particularly unfavorable position, since even a judge sensitive to the value of literary parody might view song parodies as frivolous and deserving of little protection. Interestingly, such has not been the case. To the contrary, musical copyright cases have formed the bedrock of the judicially authored doctrine of parody as “fair use” in the United States, and have served as the basis for that doctrine’s recent judicial expansion.

. . . .

U.S. PARODY DECISIONS

The first American case in which the issue of parody arose was Bloom and Hamlin v. Nixon. In that case, the defendant publicly performed portions of the plaintiff’s copyrighted song without license, as part of her impersonation of a popular actress currently performing the same song in the stage version of The Wizard of Oz. The court ruled in favor of the defendant under the “fair use” doctrine, noting that she acted in good faith by singing just the chorus of the song as an incidental aspect to her mimicry of the actress, and did not attempt to usurp the plaintiff’s market for his copyrighted song through such performances.’ Thus was the precedent established in the United States that parody is an art form deserving of protection, under certain circumstances, from zealous copyright owners seeking absolute control over the uses of their works.

A. The Second Circuit “New York” View

The Second Circuit view of parody has developed through a series of cases dating from the early part of this century, nearly all of which have involved musical satire. Within six years following the Nixon decision, district courts in the Second Circuit ruled on two cases with fact patterns nearly identical to it.

In Green v. Minzenheimer9 (S.D.N.Y. 1909), the defendant prevailed against a copyright owner portions of whose song the defendant had sung incidental to his impersonation of a popular singer. Consistently, it was ruled in Green v. Luby’ (C.C.N.Y. 1909) that the defendant’s use of an entire copyrighted song as part of an impersonation did constitute copyright infringement, since the taking of the whole song was “hardly required” for an effective impersonation.

The next important parody decision in the Second Circuit did not occur until 1963, with the Court of Appeals decision in Berlin v. E.C. Publications Inc. (The Mad Magazine Case). That case involved a suit by copyright owner Irving Berlin against Mad Magazine, which had published a book of parody lyrics to popular, copyrighted songs, many owned by the plaintiff. Mad Magazine did not reproduce the music or lyrics to any of the underlying copyrights, but simply noted next to each of the parodies the legend “to be sung to the tune of . . . ” followed by the title of the particular song involved in the lampoon. Examples of the Mad Magazine brand of humor included the parody “Louella Schwartz Describes Her Malady,” adapted to the tune of Berlin’s “A Pretty Girl Is Like A Melody.”

In affirming the district court’s ruling in favor of the defendant Mad Magazine, Circuit Judge Irving Kaufman stated “we believe that parody and satire are deserving of substantial freedom – both as entertainment and as a form of social and literary criticism.”‘ The court then adopted the two-tiered parody test first set forth in Nixon, focusing on the economic harm to the plaintiff and the substantiality of the defendant’s taking. Judge Kaufman wrote, “where, as here, it is clear that the parody has neither the intent nor the effect of fulfilling the demand for the original, and where the parodist does not appropriate a greater amount of the original work than is necessary to ‘recall or conjure up’ the object of his satire, a finding of infringement would be improper.”‘

The Mad Magazine Case was followed by Walt Disney Productions v. Mature Pictures Corp. (The Mouseketeer Case). In that case, the defendants had used the “Mickey Mouse March,” the theme from the Mickey Mouse Club television program, as background music in their pornographic film. The particular scene involved women performing sexual acts “on or near a pool table” with three men wearing nothing but “Mouseketeer” hats, the background music under which consisted of continuous, repetitive use of the entire Mouse March.

Relying mainly on the Mad Magazine Case, Judge Duffy ruled in favor of the plaintiffs, stating that the defendants had taken far more of the musical composition than was necessary to “recall or conjure up” the object of the satire, a finding of infringement would be improper.” Adding a new wrinkle to the Second Circuit parody test, however, he added that “[w]hile defendants may have been seeking in their display of bestiality to parody life, they did not parody the Mickey Mouse March but sought only to improperly use the copyrighted material.” Thus, Judge Duffy ruled that a parodist has less latitude in utilizing copyrighted music as a mere element of a larger parody than if the music itself was the object of
the satire.

(PG note: Whenever a judge uses the adjective, “mere”, you can easily fill in the remainder of the ruling.)

The Elsmere and Wilson Cases In 1980, the Second Circuit Court of Appeals ruled on the seminal case of E-emere Music, Inc. v. NBC, which concerned a parody of the New York State advertising theme “I Love New York” by the cast of the television show “Saturday Night Live” as “I Love Sodom.” The district court held that even though the defendants’ substantial taking consisted of the very heart of the plaintiff’s musical composition, it was still permissible as fair use since the bonafide social parody did not usurp the market of the original, or make more extensive use of the song than was necessary to conjure it up. Thus, the trial court recognized that song parodies, in particular, often require a substantial taking from the original in order to simply “conjure it up. “

The Court of Appeals (Circuit Judges Feinberg, Newman and Kearse) affirmed, taking the opportunity to further expand the fair use doctrine regarding parody. Stating that “in today’s world of often unrelieved solemnity, copyright law should be hospitable to the humor of parody,” the court commented on the “substantiality” issue as follows:

[The] [c]oncept of “conjuring up” an original came into the copyright law not as a limitation on how much of an original may be used, but as a recognition that parody frequently needs to be more than a fleeting evocation of an original in order to make its humorous point …. [A] parody is entitled at least to “conjure up” the original. Even more extensive use would still be fair use, provid[ed] [the] parody builds upon the original, using [the] original as [a] known element of modern culture and contributing something new for humorous effect or commentary.

This ruling represented a high water mark in the Second Circuit’s liberalization of parody as a fair use defense to copyright infringement.

. . . .

B. The Ninth Circuit “California” View

 The judicial history of parody in the Ninth Circuit has followed a confused route, with no cases involving musical satire having been decided until the 1986 ruling in Fisher v. Dees.5 4

 The Ninth Circuit view of parody had its genesis in two cases decided by District Judge James M. Carter months apart in 1955 –  Loew’s v. Columbia Broadcasting System, Inc. (the Jack Benny Case)” and Columbia Pictures v. National Broadcasting Co. (the Sid Caesar Case) – with incongruous results.

 In the Jack Benny case, decided first, Benny was found guilty of copyright infringement for parodying the film Gaslight on his television show. Judge Carter was extremely hostile to the idea that parody should be treated any differently than any other unauthorized taking, and ruled that because Benny took “substantial” portions of the underlying work, he had committed copyright infringement.

The Ninth Circuit Court of Appeals affirmed the lower court’s ruling based solely on the “substantiality” issue, stating “[tihe fact that a serious dramatic work is copied practically verbatim, and then presented with actors walking on their hands or other grotesqueries, does not avoid infringement …. .” In conclusion, the Appeals Court stated that “[o]ne cannot copy the substance of another’s work without infringing his copyright. A burlesque presentation of such a copy is no defense to an action for infringement. . .

Some months later, bowing to extreme criticism of his holding in Benny, Judge Carter announced a completely different parody test in the Sid Caesar case. Presented with nearly identical facts as in Benny (Caesar had parodied the film From Here To Eternity on his own “Your Show of Shows” television program), the Judge ruled that “[in historical burlesque a part of the content is used to conjure up, at least the general image, of the original. Some limited taking should be permitted under the doctrine of fair use, in the case of burlesque, to bring about this recalling or conjuring up of the original.”

Judge Carter did attempt to square the decision in the Caesar case with his opinion in Benny. He stated that “[u]nlike [the Benny case], here there was a taking of only sufficient [sic] to cause the viewer to recall and conjure up the original.”‘ Clearly, however, he was relying on the Court of Appeals to announce a firm rule for the Ninth Circuit, and went as far as apologizing for the brevity of his opinion due to his desire to “speed this case on its way to the Appellate Court.”

The Sid Caesar case never reached the Appellate Court, however, and so for twenty-three years, until Walt Disney Productions v. The Air Pirates 6 was decided by the Ninth Circuit Court of Appeals in 1979, the law of parody in that Circuit was at best vague.

In the Air Pirates case, the defendants had manufactured comicbooks which depicted accurately drawn Walt Disney cartoon characters such as Mickey Mouse, Minnie Mouse and Donald Duck engaging in sexual activities and using recreational drugs. Far from denying their “verbatim” copying, the defendants asserted that “the humorous effect of parody is best achieved when at first glance the material appears convincingly to be the original, and upon closer examination is discovered to be quite something else.”

District Judge Wollenberg flatly rejected the defendants’ argument, and ignoring Judge Carter’s repentance in the Sid Caesar case, relied on the Ninth Circuit opinion in Benny to hold that any substantial taking, regardless of its satirical nature, constitutes infringement.

On appeal, the Ninth Circuit affirmed judgement against the defendants, but limited the Benny case to a “threshold test” which forbids near verbatim copying (a test which the defendants failed). The Air Pirates Court also went on to adopt as a sec-ondary test the two-tiered conjure up/market usurpation test announced by the Second Circuit in the Mad Magazine case.

Ninth Circuit law on parody was less confused after the Air Pirates decision, but the Benny test had retained substantial validity as the Circuit’s parody litmus test. The Fisher v. Dees’ decision in 1986 finally established a comprehensive parody test for the Ninth Circuit, placing Benny in its proper context.

The Rick Dees Case

In the Rick Dees case, disc jockey Rick Dees recorded and released a comedy record album containing a parody of the copyrighted song “When Sunny Gets Blue” which he lampooned as “When Sonny Sniffs Glue.” The parody consisted of the first six bars of the original song (basically one half of the well known first verse), and ran for about twenty-nine seconds. Dees changed the lyrics from “When Sunny Gets Blue, her eyes get grey and cloudy, then the rain begins to fall” to “When Sonny sniffs glue, her eyes get red and bulgy, then her hair begins to fall.” The parody was also sung in a style mimicking the distinctive voice of Johnny Mathis, whose version of the original is the best known. At the conclusion of twenty-nine seconds, Dee’s recorded performance degenerates into laughter.
Prior to recording the album, Dees had applied to the plaintiff copyright owner for a license to do the parody, but was vehemently refused permission. The songwriters Marvin Fisher and Jack Segal sued Dees for infringement upon the recording’s release, but the district court granted summary judgment in favor of the defendants without opinion.

In a comprehensive and thoughtful appellate opinion, Judge Sneed, speaking for Judges Wallace and Kozinski, affirmed the district court’s decision.

The Dees opinion first affirmed the Circuit’s view that Congress, in enacting section 107 of the U.S. Copyright Act66 had in the legislative notes accompanying the section specifically enumerated “parody” as one of the examples of an activity subject to fair use. Thus, the court ruled, the four factors set forth as criteria for determining fair use in section 107 are to be applied in parody cases.6 7
Prior to commencing its fair use analysis, however, the court turned its attention to three allegations by the plaintiffs which asserted that the fair use defense was not available to the defendants.
First, Judge Sneed considered the plaintiff’s claim that since the parody was not directed at least in part at the plaintiff’s song, the fair use defense should be denied. Without rejecting the principle set forth in the Second Circuit’s decision in Wilson (adopted by the Ninth Circuit in Air Pirates) that there is no justification for conjuring up an original if it is not at least partly the target of the parody, Judge Sneed ruled that Dees’ parody was intended to poke fun at the song and Johnny Mathis’ singing style, and was not unrelated “to the song, its place and time.”
In their second allegation, plaintiffs asserted that Dees was barred from resorting to the fair use doctrine, which “presupposes good faith,” because he acted in bad faith by going ahead with the parody after the plaintiffs had denied him permission to do so.

In response, Judge Sneed ruled, as previously noted that: [tihe parody defense to copyright infringement exists precisely to make possible a use that generally cannot be bought …. Moreover, to consider Dees blameworthy because he asked permission would penalize him for this modest show of consideration … [which] we refuse to discourage ….

Finally, the court considered the plaintiff’s allegation that because Dees’ parody was “immoral,” it could not be protected by fair use. While refusing to decide whether or not an “obscene” or “immoral”
parody could be a fair use, the court ruled that although Dees’ parody was “silly” and “innocuous,” it was not obscene.

In its analysis of the first fair use factor, “the purpose and character of the use,” the court acknowledged the 1984 ruling by the U.S. Supreme Court in the Betamax case that “every commercial use of copyrighted material is presumptively… unfair. Judge Sneed noted, however, that when the parody is “more in the nature of an editorial or social commentary than … an attempt to capitalize financially on the plaintiff’s original work,”‘ the presumption may be overcome by the defendant if the parody does not unfairly diminish the economic value of the original.

The court, therefore, turned to analysis of the fourth fair use factor (“the effect of the use upon the potential market for or value of the copyrighted work”), taking note of the 1985 U.S. Supreme Court ruling in the Nation case that the fourth factor “is undoubtedly the single most important element of fair use.” Pointing out that this economic inquiry regards only whether the parody supplants and fills the demand of the original, not whether it diminishes the original’s market potential (“any bad review can have that effect”), Judge Sneed ruled that Dees’ twenty-nine second parody could not possibly be considered a threat to supplant the plaintiff’s famous love song.74 Consequently, the court ruled that factors one and four supported a finding of fair use.

The court then considered factor three – “the amount and substantiality of the taking” – which it noted had been the central focus of the Ninth Circuit in parody cases since Benny. After affirming that the Circuit still recognized that near-verbatim copying could not be fair use, Judge Sneed clarified that substantial copying is not necessarily
unfair in all circumstances. As such, he reformulated the “conjure up” standard announced in the Sid Caesar case to include the Second Circuit’s holding in Elsmere that conjuring up was the minimum measure of freedom extended to parodists.

Judge Sneed then devised a three prong test based on the holding in Air Pirates to judge whether a particular satirical taking is excessive. These three criteria, which incorporate the Copyright Act’s second fair use factor – “the nature of the copyrighted work,” are

(1) the degree of public recognition of the work,
(2) the ease of conjuring up the original work in the parodist’s chosen medium, and
(3) the focus of the parody.

In ruling that defendant Dees had not exceeded the fair use standard, Judge Sneed wrote: Like a speech, a song is difficult to parody effectively without exact or near-exact copying. If the would-be parodist varies the music
or meter of the original substantially, it simply will not be recognizable to the general audience. This ‘special need for accuracy’ provides some license for ‘closer’ parody.

In essence, therefore, Judge Sneed’s statement limits application of Benny in musical parody cases to only the most excessive examples of verbatim copying. Since application of all four fair use factors yielded a balance in favor of the defendant, the court ruled in favor of Dees.

Link to the rest at the Fordham Intellectual Property, Media and Entertainment Law Journal (1990)

PG’s comments (not legal opinions):

1. If you publish a parody of a work produced by a large movie studio, a major publisher or a major music label, the chances of you being sued for copyright infringement are higher than they otherwise might be.
2. While PG can’t say that no attorney will give the creator of a parody of a work created/published/distributed, etc., by a large media company a formal opinion about whether the parody is protected by Fair Use, PG suspects any attorney who is competent in the field will charge a great deal of money for such an opinion and that the opinion will include ten zillion qualifiers such that the opinion won’t provide a clear and understandable path for the creator of the parody.
3. But PG could be wrong.
4. If anyone has obtained such an opinion relating to the legality of a parody and is willing to share a copy with PG on a private basis, PG would love to see it.
5. If anyone knows of an attorney who is willing to provide such opinions, PG would be interested in knowing who that attorney is.
6. As usual, feel free to share comments, opinions, information, etc., in the comments to this post. If someone wishes to share anything with PG on a private basis (no attorney/client privilege, however), please click on the Contact PG button at the top of the blog.