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July 31, 2004

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David Giacalone

I'll let others worry about definitive copyright law answers. It does seem unfair that a business could take advantage of a well-known, popular copyrighted song, remold the lyrics to sell its own product, but not pay for the privilege.

On the other hand, the test under the law surely should not simply be whether the new use "puts a completely different spin on the song." That's what parody and satire is all about.

Abnu

After this post was written, a guest blogger over at Overlawyered linked to the "cease and desist letter" (pdf) sent to JibJab. It was found on the website of the Electronic Frontier Foundation, which is Defending Freedom in the Digital World and taking up the cause of JibJab in this dispute. The EFF response (pdf) to the cease and desist letter tells the lawyers for Ludlow Music, "Your letter, quite frankly, misses the forest for the trees..."

Abnu

David: I agree that the complaint of Ludlow Music's director of copyright licensing doesn't properly frame the copyright issue. It does, however, address the "licensing" considerations, which is her bailiwick, and suggests that permission would not have been granted for this use by JibJab. Money talks, of course.

In the case of the use of "Light My Fire" for the "Run Linspire" advertisement, I'd like to think Jim Morrison would rock and roll in his grave, if music publishers ever licensed the song to sell software, like the Rolling Stones did with "Start Me Up."

Evan

I normally think of "parody" as a piece that mocks an author by imitating another, such as when Ernest Hemingway parodied Sherwood Anderson with The Torrents of Spring. The JibJab piece doesn't mock Woody Guthrie, so is it really a parody? To find out, I pulled A Handbook to Literature (Thrall, Hibbard and Holman, 1936, 1960) off my shelf of English-major books, and learned that a parody can also be directed at the subject matter of the original composition:

Parody: A composition burlesquing or imitating another, usually serious, piece of work. It is designed to ridicule in nonsensical fashion, or to criticize by brilliant treatment, an original piece of work or its author. When the parody is directed against an author or his style, it is likely to fall simply into barbed witticisms, often venting personal antagonisms of the parodist against the one parodied. When the subject matter of the original composition is parodied, however, it may prove to be a valuable indirect criticism or it may even imply a flattering tribute to the original writer. Often a parody is more powerful in its influence on affairs of current importance--politics, for example--than an original composition.

Those last two sentences are quite pertinent to the present dispute. Setting aside copyright law, the JibJab piece is a flattering tribute to Woody Guthrie, and celebrates his work by drawing a contrast between his high vision of a land shared by all and the current low political reality of our divided country. When Kathryn Ostien says, "The damage to the song is huge," she's talking complete and utter nonsense.

Evan

Oh, and I'm available as an expert witness for the defense. $750/hour.

Abnu

I'm available as an anonymous lawyer for the plaintiff for 33 1/3 percent. Get it?

David Giacalone

Quotes from the Mattel v. Walking Mountain "Blender Barbie" decision seem relevant to this discussion (9th Cir. Ct. App., Dkt. 01-56695, 12-29-03):

[T]he public benefit in allowing artistic creativity and social criticism to flourish is great. The fair use exception recognizes this important limitation on the rights of the owners of copyrights. No doubt, Mattel would be less likely to grant a license to an artist that intends to create art that criticizes and reflects negatively on Barbie’s image. It is not in the public’s interest to allow Mattel complete control over the kinds of artistic works that use Barbie as a reference for criticism and comment.

" In Campbell, the Court clearly stated, “as to parody pure and simple, it is more likely that the new work will not affect the market for the original in a way cognizable under this factor.” Campbell, 510 U.S. at 591. Nor is it likely that Mattel would license an artist to create a work that is so critical of Barbie.

"As to Mattel’s claim that Forsythe has impaired Barbie’s value, this fourth factor does not recognize a decrease in value of a copyrighted work that may result from a particularly powerful critical work. Id. at 593."

Judge Posner also has relevant thoughts in his Ty "Beanie Baby" decision, Ty, Inc.v. Publications Int'l Ltd., 292 F.3d 512 (7th Cir. 2002):

"Generalizing from this example in economic terminology that has become orthodox in fair-use case law, we may say that copying that is complementary to the copyrighted work (in the sense that nails are complements of hammers) is fair use, but copying that is a substitute for the copyrighted work (in the sense that nails are substitutes for pegs or screws), or for derivative works from the copyrighted work (cites omitted]), is not fair use.

"The distinction between complementary and substitutional copying (sometimes -- though as it seems to us, confusingly -- said to be between "transformative" and "superseding" copies, see, e.g., Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994)) is illustrated not only by the difference between quotations from a book in a book review and the book itself, . . . but also by the difference between parody (fair use) and burlesque (often not fair use). A parody, which is a form of criticism (good-natured or otherwise), is not intended as a substitute for the work parodied. But it must quote enough of that work to make the parody recognizable as such, and that amount of quotation is deemed fair use.. . . A burlesque, however, is often just a humorous substitute for the original and so cuts into the demand for it: one might choose to see Abbott and Costello Meet Frankenstein or Young Frankenstein rather than Frankenstein, or Love at First Bite rather than Dracula, or even Clueless rather than Emma. Burlesques of that character, catering to the humor-loving segment of the original's market, are not fair use. . . . The distinction is implicit in the proposition, affirmed in all the cases we have cited, that the parodist must not take more from the original than is necessary to conjure it up and thus make clear to the audience that his work is indeed a parody. If he takes much more, he may begin to attract the audience away from the work parodied, not by convincing them that the work is no good (for that is not a substitution effect) but by providing a substitute for it. . . . . .

"Factor (4) at least glances at the distinction we noted earlier between substitute and complementary copying, since the latter does not impair the potential market or value of the copyrighted work except insofar as it criticizes the work, which is the opposite of taking a free ride on its value."

As I said in my only serious attempt to learn copyright law (an Essay on Fair Use and Haiku):

[A]lthough having a commercial purpose does not exclude a finding of fair use or necessarily even weigh against it, having no commercial purpose (or little commercial expectation) is another important advantage. The Sundeman court, citing the Supreme Court's Campbell opinion (the "Pretty Woman"/2 Live Crew case), noted: "If, indeed, commerciality carried presumptive force against a finding of fairness, the presumption would swallow nearly all of the illustrative uses listed in the preamble paragraph of § 107, including news reporting, comment, criticism, teaching, scholarship and research, since these activities are generally conducted for profit in this country. Campbell, 510 U.S. at 584."

Kevin J. Heller

David and Abnu,

I think you both do an excellent job discussing the parody issues; but does it affect your arguments at all that Guthrie's work may have been subject to a 28 year copyright and borrowed heavily from a prior work (JibJab, Guthrie & Carter)?

David Giacalone

Thanks, Kevin. I wasn't trying to resolve the JibJab infringement question -- people far more knowledgeable and interested can join that debate. It does seem, however, that weaknesses in a copyright should be factored into the sensitive balancing determination of fair use, even if the copyright is not actually overturned.

In the Mattel Blender Barbie case, the 9th Circuit discusses the debt that all works have to prior efforts MATTEL INC. v WALKING MOUNTAIN (9th Cir. Ct. App., Dkt. 01-56695, 12-29-03):

[1] Consistent with its policy goals, however, the Copyright Act recognizes certain statutory exceptions to protections on copyrights. At its core, the Act seeks to promote the progress of science and art by protecting artistic and scientific works while encouraging the development and evolution of new works. See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 575-76 (1994). Recognizing that science and art generally rely on works that came before them and rarely spring forth in a vacuum, the Act limits the rights of a copyright owner regarding works that build upon, reinterpret, and reconceive existing works. See id. at 575-77 (“[F]ew, if any, things . . . are strictly new and original throughout. Every book in literature, science and art, borrows, and must necessarily borrow . . . .” (quoting Emerson v. Davies, 8 F. Cas. 615, 619 (C.C.D. Mass. 1845) (No. 4,436)). The fair use exception excludes from copyright restrictions certain works, such as those that criticize and comment on another work. 17 U.S.C. § 107. See also Dr. Suess Enters., L.P. v. Penguin Books USA, Inc., 109 F.3d 1394, 1399 (9th Cir.) (holding that fair use “permits courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster”), cert. dismissed, 521 U.S. 1146 (1997).

Abnu

Kevin: In answer to your question, I can do no better in this short space than to refer you to David Kipen's entertaining review of Professor Lessig's book Free Culture -- How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity. In the review, titled "Confessions of a copyright warrior The Bono factor: Is a dead musician's legacy interfering with free speech?" he writes:

So why should we, or anybody else besides constitutional lawyer-scholars like Lessig, care about this? Because creativity, like evolution, advances by adapting. Look at some of the greatest English-language writers of the last century. Virginia Woolf borrowed from James Joyce. Joyce borrowed from everybody since Homer, and not a few people before. Virtually nobody creates in a vacuum. Writers create by tinkering with their precursors, by forever working variations, by introducing the chance elements that make a thing new. Take what comes to you, and fiddle with it at every chance -- for art, has there ever been a more reliable combination?

Unfortunately, according to Lessig, tinkerers with copyright legislation work the same way. The framers of the Constitution adapted an existing British law and limited the original American copyright term to 14 years, but Congress has been extending it ever since -- sparingly at first, later much less so. In just the past four decades, American law has enlarged the term and dominion of copyright 11 times. Every time copyright is extended, the public domain is correspondingly diminished.

A brief history of copyright in America, a timeline of legislative and judicial tinkering with the law, can be found here in a review of how copyright protection has extended from 14 years, to 28 years, to something approaching "forever, less a day" as Lessig fears.

As David says, greater minds will sort out how the law and legal precedents apply to the JibJab case that has received so much discussion in the blawgosphere. And lots of media attention. There's a variety of opinions and reasoned arguments on both sides of that dispute.

But, what about The Doors? Unfortunately, the judiciary can give us opinions only for facts that come before the courts. Fortunately, we are not under any judicial constraint on this weblog. I really wanted to learn something from smart intellectual property lawyers and law professors who might offer opinions or speculation on the legality of the "Run Linspire" advertisement, because it seems less likely that this example will be litigated. If such a so-called parody were legal, would it ever make sense for an advertiser to pay for the use of creative work like Microsoft did for "Start Me Up" -- if they could "create" a parody of the song without permission or compensation?

David Giacalone

In the absence of answers from smart IP lawyers, or even suave PI lawyers, I will opine that "Run Linspire" seems far more like expropriating the familiarity/goodwill of an existing work for purely commercial purposes, than like adding to the prior work by parodying the work or using it as the basis for satire. I don't think the copyright holder should be able to prevent such a use, but good policy and fairness suggest that some reasonable compensation should be paid.

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