Klarinet Archive - Posting 000173.txt from 2009/02
From: "Kevin Fay" <kevin.fay.home@-----.net>
Subj: RE: [kl] Fair Use
Date: Sun, 08 Feb 2009 14:18:19 -0500
Jonathan Cohler posted:
<<<The Supreme Court wrote:
"It was error for the Court of Appeals to conclude that the commercial
nature of 2 Live Crew's parody of 'Oh, Pretty Woman' rendered it
presumptively unfair. No such evidentiary presumption is available to
address either the first factor, the character and purpose of the use, or
the fourth, market harm, in determining whether a transformative use, such
as parody, is a fair one. The court also erred in holding that 2 Live Crew
had necessarily copied excessively from the Orbison original, considering
the parodic purpose of the use."
And while they noted that 2 Live Crew had failed to present any evidence to
prove that their parody would not damage the market for the original,
instead of finding against them for failing to present their "affirmative
defense", they remanded and noted the following:
"Contrary to each treatment, it is impossible to deal with the fourth factor
except by recognizing that a silent record on an important factor bearing on
fair use disentitled the proponent of the defense, 2 Live Crew, to summary
judgement. The evidentiary hole will doubtless be plugged on remand."
So the fact that they did not present a complete affirmative defense was not
sufficient to find them responsible. In other words, there is not a total
black-and-white (or bright line, if you will) presumption that they are
responsible for infringement despite the fact that they failed to present
their affirmative defense in full. The court simply said, go back and try
again...>>>
You're reading Acuff-Rose as a victory for fair use. It ain't necessarily
so.
Again, Section 107 of the 1976 Copyright Act revisions is a poor
codification of prior case law. Although not specifically mentioned in the
statute, parody - as an offshoot of criticism - has long been a slam-dunk
affirmative defense to copyright infringement here in the United States. In
Acuff-Rose, the Supremes analyzed the traditional parody defense against
Section 107's four-factor test. The good news is that parody was held to be
criticism, so that it could meet the first of the four factors. The bad
news is that the fourth factor - market harm - is now to be included in the
analysis of whether parody is fair use or not. This is not necessarily good
news - the parodist must now prove that their parody will not harm the
market for the original copyrighted work.
2 Live Crew was presumed to be able to meet this, since "O Pretty Woman" had
been a Big Hit for a long time. Suppose, however, that Saturday Night Live
does an anti-Scientology parody of a new film starring Tom Cruise or John
Travolta, with the subtext that the movie sucks. It could well hurt the
movie at the box office; should this be a factor in determining fair use?
Back in the day, parody *was* pretty much a bright line test (Parody = Fair
Use). Now, judges get to fool around with a "balancing test" of four
factors. The cynical amongst us might look at this as license for judges to
do whatever they want, as long as the "balancing" in their opinion holds up
on appeal.
One of my favorite parodies both illustrates and educates on this - and has
a good amount of nose-tweaking to a particular company that is protective of
its IP. You can see it at http://www.youtube.com/watch?v=CJn_jC4FNDo. It's
funny, too.
Two points of caution:
1) Parody is a very special form of derivative work, with a unique and
narrow protection under U.S. law. You cannot take the Acuff-Rose decision
as a protection of any sort of general right to make derivative works from
copyrighted materials (like an arrangement of the Prokofiev flute sonata,
for example). Without satirical criticism of the original work, it just
doesn't apply.
2) Parody is a long-standing defense to copyright infringement here in the
U.S. In Europe and most of the rest of the world, parody conflicts with an
author's/artist's "moral rights" and is therefore not protected. U.S. IP
law doesn't recognize moral rights except for some visual art (paintings) so
far.
kjf
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