9th Circuit wrong about parodies and satires in fair use cases
"O, Reason not the need!"
-- King Lear in Shakespeare's play "King Lear"
"Hitler did not need Darwin to devise his heinous plan to exterminate the Jewish people and Darwin and evolutionary theory cannot explain Hitler's genocidal madness."
-- Anti-Defamation League's denunciation of "Expelled"
According to the 9th Circuit Court of Appeals, the above cartoon would not be fair use of Shakespeare's "King Lear" because the cartoon is not a commentary about the play but is a commentary about something else. Another example would be my satirical use of the "best butter" story from the Mad Hatter's Tea Party in Alice in Wonderland (example: judges are not supposed to give legal advice to litigants but Judge Jones' legal advice was OK because it was the "best" legal advice).
Note: These discussions of parody v. satire may be of limited usefulness in the Yoko Ono v. Expelled case because these discussions are mainly about complete works whereas the "Expelled" movie uses just a few seconds -- about 15 -- of "Imagine." However, this issue of parody v. satire could nonetheless arise in the case.
An article titled "Unfair Use: The Lack of Fair Use Protection for Satire under § 107 of the Copyright Act" by Adriana Collado, in the June 2004 issue of the Journal of Technology Law & Policy says,
Modern application of the Fair Use Doctrine to parody and satire has been shaped by two cases: Campbell v. Acuff-Rose Music, Inc.  and Dr. Seuss Enterprises v. Penguin Books USA, Inc.
I discussed Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994), a Supreme Court decision (as indicated by "U.S."), in recent preceding posts ("Issue in Yoko v. Expelled: parody v. satire" and "Parody v. satire II: Footnote 14 of Campbell is the key"). Dr. Seuss Enterprises v. Penguin Books USA, Inc.109 F.3d 1394 (9th Cir. 1997) is, as indicated, a 9th Circuit decision.
The article continues,
The [Supreme] Court examined the Fair Use Doctrine carefully, and rejected the notion that any one of the fair use factors, by itself, would create a presumption against fair use.  In doing so, the Court seemingly left the door open for fair use protection for satiric works. That door was slammed shut by the Ninth Circuit, however, in Dr. Seuss Enterprises v. Penguin Books USA, Inc. [p70] . . . . .
Although the Ninth Circuit cited Campbell when deciding Dr. Seuss, it did not follow Campbell’s interpretation of the Fair Use Doctrine.  In deciding whether the appellants’ use was fair, the circuit court based its ruling on the fact the appellants’ creation was a satire, not a parody.
Note: the article and the Dr. Seuss decision define "parody" as something that ridicules the original work and "satire" as something that ridicules something else -- definitions that I disputed in my previous articles on the subject.
The summary of the Dr. Seuss decision says (the summary, which does not constitute a part of the opinion of the court, is copyrighted C 1994 by Barclays Law Publishers),
 The parodist is permitted a fair use of a copyrighted work if it takes no more than is necessary to "recall" or "conjure up" the object of the parody. The critical issue was whether The Cat NOT in the Hat! was a parody.  Parody must target the original, not just its general style, the genre to which it belongs, or society as a whole. (numbers are item numbers, not footnote numbers)
As for the statements in bold above, the Supreme Court in Campbell says nothing of the kind, as I showed in my two preceding posts on the issue, and Collado's article agrees that Campbell says nothing of the kind.
The court's opinion itself says in Dr. Seuss,
The [Supreme] Court pointed out [in Campbell] the difference between parody (in which the copyrighted work is the target) and satire (in which the copyrighted work is merely a vehicle to poke fun at another target): "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."
Wrong, wrong, wrong. For starters, the Dr. Seuss opinion's above interpretation of the Campbell opinion's statememt is wrong. Furthermore, as I showed in my previous posts, the Supreme Court's interpretations of the meanings of "parody" and "satire" are wrong. The only clear difference between "parody" and "satire" is that "parody" is always an imitation of another work. Both a parody and a satire that is an exact copy of the borrowed work can poke fun at the borrowed work, another target, or both. Anyway, this distinction between parodies or satires that ridicule the borrowed work and those that ridicule only something else is arbitrary, capricious, vague, nitpicking, stupid, and just plain wrong. The titles of two expert legal treatises on the subject, "The Satire/Parody Distinction in Copyright and Trademark Law -- Can Satire Ever be a Fair Use?" (an American Bar Association report) and "Unfair Use: The Lack of Fair Use Protection for Satire under § 107 of the Copyright Act," show that there is considerable alarm over the courts' applications of the fair use law to parodies and satires.
Also, it is surprising that the Dr. Seuss decision was published, considering that it is not a final decision but is only an interlocutory decision on a preliminary injunction:
For the foregoing reasons, we affirm the district court's order granting a preliminary injunction prohibiting the publication and distribution of the infringing work.
The stupidity of the 9th Circuit judges here is no surprise to me -- what can be expected of a bunch of incompetent buffoons who in my lawsuit against the unconstitutional California "smog impact fee" could not understand the simple argument that the state lost its federal-court tax-suit immunity by "[leaving] the sphere that is exclusively its own" (Parden v. Terminal Railway, 377 U.S. 184 (1964)) by basing the fee entirely on the state's special status under federal auto emissions laws and regulations. An expert later testified in state court that the fee required the approval of the US Environmental Protection Agency! And those idiots failed to dismiss a California lawsuit that clearly belonged in the DC Circuit court of appeals.
Here are some excerpts from the book "The Cat NOT in the hat." IMO these excerpts show a lot of creativity and originality and I find them amusing. Also, some definitions of "parody" say that a parody can be merely humorous and not necessarily mocking. "JUICE" is from the fictitious author of the book, "Dr. Juice," an imitation of "Dr. Seuss," where "juice" comes from O.J. Simpson's initials, sometimes interpreted as "orange juice."
A happy town
Where rich folks play
The day away.
But under the moon
The 12th of June.
Two victims flail
Somebody will go to jail!
Who will it be?
Oh my! Oh me!
- - - - - - - - - - - - - - -
A plea went out to Rob Shapiro
Can you save the fallen hero?
And Marcia Clark, hooray, hooray
Was called in with a justice play.
A man this famous
When you're accused of a killing scheme
You need to build a real Dream Team.
Johnnie, won't you join the crew?
The Dream Team needs a victory.
- - - - - - - - - - - - -
Hmm. . . take the word JUICE.
Then add ST.
Between the U and I, you see.
And then you have JUSTICE.
Or maybe you don't.
Maybe we will.
And maybe we won't.
`Cause if the Cat didn't do it?
Then who? Then who?
Was it him?
Was it her?
Was it me?
Was it you?
Oh me! Oh my!
Oh my! Oh me!
The murderer is running free.
IMO the main considerations in fair use cases should be: (1) the risk of "market substitution" and (2) "tarnishment," as defined as "a form of trademark dilution in which a junior mark’s similarity to a famous mark causes consumers to mistakenly associate the famous mark with the junior user’s inferior product or service," 74 Am. Jur. 2d Trademarks and Tradenames § 116.
This could be the only blog on the Internet that has done much legal analysis of the Yoko Ono suit. The Darwinist blogs mostly just say that the "Expelled" producers robbed Yoko.
Labels: Yoko Ono lawsuit