Judge Kozinski delivered a lecture for the 1999 Donald C. Brace Memorial at Fordham University School of Law on November 11, 1999. His speech was published in the Journal of the Copyright Society of the USA in the summer of 1999.
In this speech, Kozinski addresses one of the controversial decisions of his court, the Ninth Circuit, about the case Dr. Seuss Enterprises v. Penguin Books. Penguin published a book about the O.J. Simpson trial, which was illustrated and wirtten to resemble a Dr. Seuss picture book. The Court ruled that Penguin's book was not fair use because it was satire rather than parody, meaning that it did not comment on Dr. Seuss's book but only used it as a springboard to comment on the O.J. Simpson trial.
Judge Kozinski, however, indicates that had he delivered the decision, it might have been different; although he does not want to criticize his colleagues, he doubts he "would have decided the case the same way." He examines the tradition of fair use theory in dealing with intellectual property, questioning when its protection starts to defeat the purpose of having it.
The most relevant part of his speech to my topic is when he discusses the importance of form to satire, even if the satire does not necessarily comment on the original work. As Supreme Court pointed out, restraining the form suppresses content; furthermore, he argues with the Supreme Court's decision in Campbell v. Acuff-Rose, who claimed that satire attempts to avoid the drudgery in working up something fresh. Instead, it takes "some creativity and work to write a sustained satirical pastiche that people will enjoy enough to pay money for." The satirist cannot latch onto any work to achieve their purpose, either, because something about the original fits or doesn't fit the subject.
Lastly, Judge Kozinski points out that our fair use laws leave something to be desired: either we deny fair use and enjoin the work out of existence, or we claim fair use and the work remains and the copyright owner has to pay the attorney fees. He suggests a remedy outside of the fair use doctrine, a question of appropriate remedy rather than fair use. In the end, the effect would be to "strip copyright owners of their right to control the uses to which their work is put, while strengthening their right to demand compensation for the value they create."