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Allen according to Copeland is “not as cinematically knowledgeable” as his counterparts from the era. However, he discusses all of the points from Allen’s films in which he references other great films of the past. He discusses the references to Bergman, Eisenstein and Bogart in his various films from the seventies. The references in films to other films trickle down into our daily lives, which creates a world where not all of our actions are necessarily original. In some ways, many of us emulate our favorite characters in films; it’s not just great directors copying other directors, but people copying their favorite characters. Past artwork has become the foundation for which new artists can build. These ideas being recycled through film and our daily lives creates a new mythology.
Woody Allen draws from the ideas of past works to mold them into his films. Love and Death is no exception. It builds upon ideas of past filmmakers and intertwines them into parody. Even though many of the ideas and scenes in the film seem ridiculous, it takes an intelligent viewer to read beyond the laughs and into the past artists that shaped them.
Schein analyzes the qualities of humor and tactics used by such film humorists as Tati, Chaplin and the Marx brothers. Of all of their styles he seems to enjoy Tati’s the most. Schein comments that the film’s humor works with predominantly visual material that seems to be purely intellectual at the same time. Every sequence in the movies also contains many formal associations. Tati combines these factors with “a casual nonchalance that is master proof of a humorist.”(32)
Harry Schein would have liked the humor in Love and Death for a variety of reasons. The film does not simply make the viewer smile to himself, but it contains many moments of hilarity that force the viewer into convulsions of laughter. Allen’s film never loses its tempo and provides many situations in which the viewer is able to relate to Boris as a victim. Tati’s style of comedy is emulated by Love and Death. The film at its base contains the visuals of Tolstoy’s Russia and uses this as a springboard for intellectual conversation and humor. These factors combined with the references and associations that Allen makes to many other works yield what would be “master proof” to Schein that the film is a great work of humor.
Once Kiremidjian establishes that parody is indeed an art form that can be benefited from he examines what makes for a good parody. He states that an artist “must grasp the essentials of the style of a given author or a school of authors, and then proceed to concoct an outlandish episode which is expressed in that style.”(235) Parody must then act as a critique of some sort of the original work. This can only be done effectively, if the artist has a strong grasp of the original work(s) and has a purpose for creating the parody.
Following the philosophical logic of Kiremidjian, Allen’s Love and Death indeed qualifies as art and as a parody. The film manages to provide the viewer with the impression that Allen has a strong grasp for every facet of the works he is parodying. The references to a multitude of works are clear. His critique of these works emanate a sense of purpose with humor that is clearly outlandish in its content.
Mast claims that while some film comics like Mel Brooks simply move from one parody to the next, Allen has transformed his comedic style from the purely parodic to a more personal, psychological and emotional film style. Allen’s films are more “French than American” in that they are “very conscious of themselves as conceptions for the film medium.”(313) According to Mast, Allen’s films are a mix between the “anarchic clown tradition” of the American style and the “ironic tradition”(313) of the French. Allen balances the line between “intellectual awareness, psychological astuteness” and the bizarre gag and parody. Mast argues that each of the main characters in Allen’s films, are essentially all the same because they display those same features no matter what situation they are thrown into.
Recurring themes in Allen’s films include, neuroticism, sexual desire and self-discovery. Each of these themes get examined from a serious tone, but in films such as Love and Death, these serious ideas become the butt of many jokes. Mast continues to say that these topics continually develop in Allen’s later films as the director continues to explore himself. The psychoanalysis that Allen undertakes and his new understanding of himself provides for more humorous and profound ideas in his later films.
Allen’s Love and Death intelligently uses many of the ideas from Tolstoy’s novel. The film is a clever parody that is able to incorporate obvious ideas such as the title and war with Napoleon. It explores further though to include Napoleon’s role in the war and the decisions at hand for the general. There is a scene at the beginning of the film in which Allen parodies the lack of free will Boris has in his decision to go to war along with the exhilaration of his brothers at the prospect of fighting.
At many points in the film, Boris uses syllogisms to examine and parody life’s supposed truths. For example, “A. Socrates is a man. B. All men are mortal. C. All men are Socrates. That means all men are homosexuals.” This ridiculous logic mocking syllogisms comes right after a much more coherent moral predicament in which Boris weighs the idea of murder on his conscience. Allen manages to mock and satire different aspects of the writings of Tolstoy, even to the point of slapstick humor, but he combines the intelligence with comedy.
As Ivan Ilych (the title character of Tolstoy’s The Death of Ivan Ilych) nears the end of his own life he wonders, “What is the right thing?” After a life full of experience he realizes that he has not come close to understanding the meaning of life. Before Ivan neared his untimely death, he lived an ordinary life that “flowed pleasantly.” He never dealt with adversity and simply followed the path that was set out for him by his parents and society. “Tolstoy shows that Ivan’s life, though simple and ordinary, was truly terrible because he had no sense of the tragic dimension of life.”(8) The reader comes to understand that failure and inexplicable suffering happen whether a person has behaved rightly or not. As Ivan lies in bed slowly dying of his illness he has two visitors. His servant comes to visit him and teaches the reader that a common peasant is able to help Ivan even more than any doctor. His son also comes to visit him and portrays how no one should have to suffer such a painful, unwarranted death. This moment raises great questions about God’s will, destiny and justice.
As should be expected with a parody of Russian literature, Love and Death examines and satirizes many of these ideas. Many scenes in the film analyze theories on death and dying, but after the death of Boris the viewer gains a glimpse into what life and death have taught the hero. In The Death of Ivan Ilych the main character comes to the realization that he has learned nothing about morals or the true meaning of life. In contrast, the parody these ideas show a character, Boris, with seeming omniscience flaunts such tidbits of knowledge like, “there are worse things in life than death…I mean if you’ve ever spent an evening with an insurance salesman, you know exactly what I mean.” This film also provides a satire on the bedside drama that takes place in Tolstoy’s novels. As opposed to meaningful events taking place that enlighten the hero to life’s truths; Boris encounters ridiculous people from his past. One such person is Boris’s father who produces a package size parcel of land with a monopoly sized house on it and exclaims that he has finally built.
Some works have stated that all works of fiction are in fact parodies, while others claim that parodies are simply different methods and forms of satire. The parody can vary in simplicity from the “Darwin” Jesus fish to complex literary juxtapositions of ideas or sentences from one work into another. These parodies can be intelligent word games and puns or even serve as a vehicle for inappropriate and sometimes vulgar imitations. Chatman does clarify however that in his opinion parody does not need to ridicule the original. He replaces the term ridicule with irony, which serves as his definition for something parodies try to achieve. The author concludes by stating that good parodies are at their core imitations. These imitations can pervade into the style of the new piece in anything from the rhythm to the broadest subject matter of the original piece.
Love and Death indeed embodies Chatman’s idea of the parody in many ways. Allen’s film is homage to many areas of study ranging from literature to philosophy to film. The film captures the broader aspects of plotline from Russian literature, but retains many smaller nuances that imitate more obscure images such as the juxtaposition of the faces at the end of the film to parody Bergman’s Persona. The film achieves an artistic level that serves to capture parody with irony as opposed to ridicule.
This work analyzes the various themes that seem to be emulated in many of Woody Allen’s films. Love and Death is an interesting film for this analysis because of how obviously he meant to parody Tolstoy’s War and Peace. This theme gets fleshed out immediately in the title and Allen expounds on this idea amongst many others as the film progresses. Lee points out that while the film is comedic at its core, (even slapstick at some points) it tackles many deep philosophical questions. Allen clearly understands the philosophical contributions of many philosophers such as Hegel, Kant, Nietzsche and Kierkegaard. In spite of this, Allen uses complex jargon to essentially say nothing. The conversations are reminiscent of the great thinkers, but on their own the conversations boil down to “clever gibberish.”(31)
Lee claims that Allen is trying to illustrate in Love and Death and many of his other films that it is impossible to resolve the fundamental questions of human existence through abstract argument and theorizing. These questions that Lee is referring to are common themes in Allen films including, the existence of God, death, ethics and relationships. In this film Allen addresses each of these issues, but he never truly gives a coherent opinion on any one of them. The only point at which Allen makes a moral decision is when he decides to not kill Napoleon – which would trigger the end of many wars and countless deaths. The viewer never learns the reasoning behind his change of heart, but he is sentenced to death for his singular moral stand of the movie.
After being put to death Boris offers a final monologue about what he has learned through the whole dying experience. The viewer soon learns, that Boris has no more compelling insight into life or death than he did while he was alive. He leaves the viewer dancing away with Death himself.
The author begins by exclaiming that they are both filmmakers, as opposed to directors who control all aspects of the film. Their films largely focus on dialogue, many times infused with philosophical ideas that can unravel the source of a main characters current situation. The films of both artists focus largely on women and family interactions. At many points in each of their films, large family meals and gatherings are portrayed that at many times contain a grand showing of family members singing, dancing or playing music. The films tend to take place in the everyday lives of the characters. The “normal” days of these characters get caught up in the happenings of mass culture where the main character gets thrown into situations that look more like fantasies as opposed to realistic depictions of the events.
Love and Death is a film that clearly derives inspiration from Bergman films including The Seventh Seal and Persona. Boris has an early encounter with Death as an actual character early on in the film as a boy and at the end of the film we see Boris again dancing with Death; both of these are clear references to The Seventh Seal. Allen also uses many other aspects of Bergman films mentioned above. There is a large family meal, with eating, singing and dancing. Boris then finds himself caught in many realistic events (fighting in the war) with fantastic outcomes (being the most inept, cowardly soldier, yet being the only survivor.)
Allen continues to discuss the more intellectual aspects of the film including composer selection, his various inspirations and his general attitudes on country life versus urban life. Stravinsky was Allen’s first choice for the film’s score, but he found the music to be too “heavy” which made the film “seem unfunny.” They decided to switch to Prokofiev which “lightened the whole mood, it was brilliant and gay.”(71) In regards to his humor style, Allen wants his characters to always be speaking in jokes like Groucho Marx and Bob Hope. There are purposeful parodies to major films by Bergman and Eisenstein along with a general plot that he claims takes place in the world of Russian literature. A parody in Allen’s mind, is a work “done out of affection”(72) for an artist.
This chapter on Love and Death helps the viewer enter the mind of the director. It enables them to understand the basic processes of producing a film along with the numerous and purposeful places in which Woody Allen finds his inspiration.
CAMPBELL v. ACUFF-ROSE MUSIC, INC (1994)
Acuff-Rose Music, Inc. filed lawsuit against the members of the rap music group 2 Live Crew and their record company, claiming that 2 Live Crew's song, "Pretty Woman," infringed Acuff-Rose's copyright in Roy Orbison's rock ballad, "Oh Pretty Woman." The District Court had ruled that 2 Live Crew’s song was a parody of the original; however, appeals reversed and remanded, holding that the commercial nature of the parody rendered it presumptively unfair for the purpose of the parody (first factor of the fair use doctrine), that by taking the "heart" of the original and making it the "heart" of a new work, 2 Live Crew had taken too much (third factor), and that market harm for (fourth factor) had been established by a presumption attaching to commercial uses. The courts decided that the song fell into the proper categories of fair use, detailing the four different aspects of fair use and how the song accomplishes each of them. 2 Live Crew’s version was transformative and would not harm the reputation or financial gain of the original work. The final decision of Campbell v. Acuff-Rose, ruling the work as parody and therefore satisfying fair use judgment, leads me to believe that my transformation of the South Park’s narrative through film clips will be considered fair use and a parody of the original work.
Rogers V Koons. No. 234, 388 and 235. United States Court of Appeals, Second Circuit. 2 Apr. 1992.
This is the 2nd Circuit's appellate ruling on Rogers v Koons. The introduction states that the "key" to the suit "brought by a plaintiff photographer against a defendant sculptor and the gallery representing him, is defendants' borrowing of plaintiff's expression of a typical American scene — a smiling husband and wife holding a litter of charming puppies." It calls the copying deliberate goes on to give the background facts of the case. It first describes Rogers' work and reputation, followed by an account of how the "Puppies" photograph was created. It then does the same for Koons and the creation of "String of Puppies." It goes back over the "prior proceedings," giving the history of litigation between the two parties and affirms the district court initial ruling.
Moving on to the discussion section, the court eleaborates on the ownership of copyright in an original work of art, which Rogers has, discusses unauthorized copying by defendant, which Koons is held guilty of, and defines the fair use doctrine. It then enumerates the four criteria required to satisfactorily pass as fair use. Under the Purpose and Character of Use criterion, the court says, "Relevant to this issue is Koons' conduct, especially his action in tearing the copyright mark off of a Rogers notecard prior to sending it to the Italian artisans. This action suggests bad faith in defendant's use of plaintiff's work, and militates against a finding of fair use." Essentially, they are saying that he was underhanded about his method of copying. As far as Parody or Satire as Fair Use is concerned, the court says "that even given that "String of Puppies" is a satirical critique of our materialistic society, it is difficult to discern any parody of the photograph "Puppies" itself." They argue that Koons was motivated more by profit than satire. The court also holds that Koons copied far more of Puppies than necessary to convey his point. "Koons went well beyond the factual subject matter of the photograph to incorporate the very expression of the work created by Rogers," says the court. Lastly, the court orders that the effect of the use on the market value of the original has been harmed, and "there is simply nothing in the record to support a view that Koons produced "String of Puppies" for anything other than sale as high-priced art. Hence, the likelihood of future harm to Rogers' photograph is presumed, and plaintiff's market for his work has been prejudiced."
April 30, 1997 Copyright Infringement Dr. Seuss Enterprises v. Penguin Books USA
Penguin Books distributed 12,000 copies of a book done in the style of Dr. Seuss's The Cat in the Hat (Titled: The Cat NOT in the Hat! by Dr. Juice, a tonguein-cheek rhyming summary of the O.J. Simpson double murder trial). Penguin Books USA and Dove Audio Inc. were sued by Dr. Seuss Enterprises Inc., the owner of the copyrights and trademarks in the works of Dr. Seuss (aka the late Theodor S. Geisel) for copyright and trademark infringement. The Ninth Circuit U.S. Court of Appeals found that the book is not a parody of The Cat in the Hate, but is rather a satire and therefore does not qualify as a fair use under the fair use exemption of the 1976 Copyright Act. In its examination of the four fair use factors articulated in the Copyright Act, the circuit court found that all of them tipped the scale away from a finding of fair use. On the issue of the purpose and character of the work, the court cited to the U.S. Supreme Court's decision in Campbell v. Acuff-Rose Music Inc., 114 S. Ct. 1164, 1171 (1994), in which the court drew a sharp distinction between parody, which is exempt under the fair use exception, and satire, which is not. “A parody needs to mimic the original because it is commenting on that work, but a satire can stand on its own two feet and so requires justification for the act of borrowing,” the Supreme Court said. This court ruling shows that parody and satire undergo distinct ramifications, and that it is important to distinguish the two when the legal system comes into play.
"Koons Affirmed (Don't Blanch)." The Patry Copyright Blog. 26 Oct. 2006. 28 Nov. 2006 <http://williampatry.blogspot.com/2006/10/koons-affirmed-dont-blanch.html>.
This article is a guide to the Koons v Blanch ruling and takes us through the courts' decisions regarding the four criteria that constitute fair use step by step. Fundementally, he says, the case boils down to two points, that "Koons' use was highly transformative and the copyright owner suffered no harm to her market; the rest is window dressing." He summarizes the background of the case (Blanch paid $750 for original ad in Allure magazine, Koons incorperates exact image in his work "Niagra" in order to comment on the way popular images appeal to our most basic instincts and desires.)
Party thinks the majority's distinction between parody and satire is helpful and shows that "Koons had a genuine creative rationale for borrowing Blanch's image, rather than merely using it merely 'to get attention or to avoid the drudgery in working something fresh up.'" He also brings up the issue of bad faith, which has not been mentioned in the two other cases. I think this comes out of Blanch's claims that its pratically a matter of etiquette, she's been quoted as saying something along the lines of "if the artist is still alive, you should at least ask for permission to use their work." I am also interested in the comment posted in reply to this blog in which the author writes, "A major factor in the difference between Rogers and Blanch appears to be that the court found the use of the feet from the Blanch photograph transformative because they were recast in a different position and that the important background elements (man’s lap, aircraft cabin) were not copied. In other words, the Blanch photograph was used more as a reference than as the foundation for the painting."
"When is Parody Fair Use?" - Robert Posner
A parody takes parts or aspects of another expressive work. If that work is copyrighted, why isn’t the parodist an infringer? Parody is considered ‘fair use’ under copyrighted law and is therefore considered lawful. It takes from a piece of work but injects creativity into it—taking characters, incidents, dialogue, or other aspects and creates a new work. The risk of infringement arises when the parodist extracts certain copyrighted elements of the original work—the parody is a derivative work and the copyright holder controls it. However, the fair use doctrine stipulates, in economic terms, that when the “costs of transacting with the copyright owner over permission to use the copyrighted work would exceed the benefits of transacting,” the derivative work is considered fair use. This includes economizing on other transactions and stimulating the production of intellectual property, e.g., arousing public interest through use of book reviews. Parody is a form of limited criticism, may supply a part of demand for the original work, and does not always ridicule or criticize the original work. It is different from a book review in that it does not introduce new material to the public; audience acquaintance with the work renders the need to steal much less. Within terms of fair use, parody should use the parodied work as a target and not a weapon, should not take a large fraction of the original work so as to reproduce it entirely, and the relative minimum work taken will not redeem the infringement. Often parodies achieve a common effect and not at the expense of the original work of art. In relation to my project, I will create a parody of the popular show South Park by virtue of a video mashup, and we will see how this translates into fair use.
Greenberg, Lynne A. "THE ART OF APPROPRIATION: PUPPIES, PIRACY, AND POST-MODERNISM." Cardozo Arts & Entertainment Law Journal 11 (1992): 1.
Greenberg calls appropriation art a “wide-reaching trend which has arisen as a response to post-modernist criticism.” She says its reaction to the formalism and aesthetics of a media-saturated society. Most importantly, echoing Koons claims about the school of thought he belongs to, Greenberg says, “Aggressively and self-consciously derivative in its ideology, post-modernist art critiques the very attributes that copyright law uses to define art: namely, artistic creativity and originality.”
In the introduction, she says the article will focus on the challenges postmodernist art poses on copyright law and argues, like the Columbia Law Review editorial that visual art requires a different set of rules than other copyrightable entities. In the section of her piece about the infringement vulnerability of photography, and “its relationship to the originality requirement” she uses Rogers v. Koons to illustrate her point that we need a different way to interpret copyright as it interferes with the objectives of postmodern art. In her analysis of the case, Greenberg maintains that the court’s perspective is skewed because Koons’ work is so expensive. She says that although the court claims that Koons’ work has an economic impact on Rogers, “It seems farfetched to imagine that Koons's "high-priced" kitsch, sold in the elite world of the art gallery, could even tangentially affect the market for either Rogers's commissioned photographs or Rogers's postcards, sold predominantly in gift shops”. Basically, she concludes, the court ruled fairly according to current laws, this case shows that these doctrines are in need of revision in order to make allowances for appropriation art. “The recent decision of Rogers v. Koons simultaneously underscores the precarious position occupied by artists practicing radical appropriation strategies, and accentuates the consequences of so rigorously enforcing the limited monopoly rights granted by copyright law,” she explains.
Campbell v. Acuff-Rose Music (92-1292), 510 U.S. 569 (1994)
The rap group 2 Live Crew used a sample of Roy Orbison and William Dees' "Oh, Pretty Woman" for their track, "Pretty Woman", on their album As Clean As They Wanna Be without Orbison's permission. This led to a copyright infringement case being filed by Orbison and a ruling by the Supreme Court which has great implications for both rap and music as a whole. 2 Live Crew's defense was that their song was a parody, and as such should be seen as fair use since a parody must borrow heavily from the original artwork in order to spoof it.
The court went through the 4 factors that typically determine fair use as outlined by the Copyright Act of 1976. On the first factor (The purpose and character of the use) the court determined that since 2 Live Crew's version of the song was fairly transformative, this outweighed the commercialism that would rule against fair use. As for the second factor (the nature of the copyrighted work), the Supreme Court decided that because the song is a parody, it intrinsically borrows heavily from a public, copyrighted work, and thus does not put too much weight on this factor for determining fair use. The third factor, (the amount and substantiality of the portion of the original work used), the court decided that as a parody, it was necessary for 2 Live Crew to borrow the "heart" of the work, however they differentiated their song enough from Orbison's by changing the lyrics heavily. For the fourth factor, (the effect of the use upon the market (or potential market) for the original work), they determined that it is unlikely for this work to substitute the original, and thus would not harm Sony's market.
This case is very important to music because it was one of the earliest to set down guidelines as for sampling in music, though it was a parody. Also, at this point, these types of cases were rare for courts to see, so the legislation for ruling on them was ill-defined. It was determined that parodies can not be automatically determined by an aggregate set of laws and must be tried on a case to case basis. Since rap music often samples in ways like 2 Live Crew did, this ruling essentially let the reigns free for other artists to sample music by diminishing their fears of it not being fair use. However, this is a parody and majority of rap songs are not, meaning that they are given less leeway when it comes to fair use.
By Judge Alex Kozinski and Christopher Newman. Published in the Journal of the Copyright Society of the USA, Volume 46, No. 4, Summer 1999, pages 513-530
This article is a speech given by Judge Kozinski, a member of the Ninth Circuit Court of Appeals. While the speech is an overall discussion about the legitimacy of fair use, there is a significant portion devoted towards the idea of satire and parody and its place in fair use.
Kozinski disagrees with Seuss's thought that "The Cat NOT in the Hat!" is an attempt "to avoid the drudgery in working up something fresh." Instead, Kozinski feels that "It’s easy enough to spew a few lines of impromptu Seussian doggerel, but it takes some creativity and work to write a sustained satirical pastiche that people will enjoy enough to pay money for and recommend to their friends."
In general, Kozinski disagrees with the Bisceglia thought that a satirist can just pick a new work to focus on if he cannot acquire a license to the original work. He states:
"Even if the original work is used only as a vehicle, not just any vehicle will get you where you want to go. You can only get so many chuckles by mimicking something familiar. When this kind of satire really works well, it’s because there is something about the original that fits - or pointedly doesn’t fit - the subject"
Kozinski's stance demonstrates a willingness to grant more freedom to satirists. Similar to the Collado article, Kozinski is cognizant of the creative process and is aware that there are not always other options for satirists to choose from to make their point. In fact, Kozinski adds that "the fundamental premise of our copyright law is that the best way to encourage creation of valuable works is to let authors capture the market value of those works." It is the point of satire to create a different view on a well known material, and by restricting it too much, the spirit of copyright law will be broken.
Overall, Kozinski is a strong supporter of more fair use for satire and disagrees with his colleagues of the Ninth Circuit regarding the Seuss case.
"BEYOND ROGERS V. KOONS: a FAIR USE STANDARD FOR APPROPRIATION." Editorial. The Columbia Law Review Oct. 1993: 1473.
This article gives some background to the case, describing how Koons found a postcard bearing Art Rogers' "Puppies" photograph, sent to it a foundry in Italy and instructed them to make four sculptures that looked exactly like it (with some slight variation in coloring), showed the work in an exhibited entitled "Banality Show" and sold three of the sculptures for a total of $367,000, whereafter Art Rogers sued him for copyright infringement. The court's position was: "The copying was so deliberate as to suggest that Koons and Sonnabend Gallery resolved so long as they were significant players in the art business, and the copies they produced bettered the price of the copied work by a thousand to one, their piracy of a less well-known artist's work would escape being sullied by an accusation of plagiarism."
Koons is accused of plagerizing just because he can. He defended the works as parodic in nature, but despite his stated intent to comment on the banality of much commericial art, the both the district and appelate courts ruled in favor of Rogers. This article quotes Koons as saying that he belongs to the school of American artists who believe the mass production of commodities and media images has caused a deterioration in the quality of society, and this artistic tradition of which he is a member proposes through incorporating these images into works of art to comment critically both on the incorporated object and the political and economic system that created it. It also argues that art that stems from found images is a "valid form of criticism and comment" and that failing to protect artists from infringement stifles expression. It calls for a revised fair use policy tailored to the specific conditions of visual art.
As noted in the introduction, the first part discusses the development appropriation art form within a philosophical and conceptual framework and describes how subject matter is affected by the threat of legal consequences. The article then covers the current definition of parody and fair use, identifies their weaknesses in the “context of appropriation,” and reviews and analyzes academic attempts to develop standards protecting artists’ creativity and their plausibility. It then goes on to suggest a better solution to the problem of parody and fair use that tries to accommodate both the originating and borrowing artists based on preserving the copyright owner’s “economic incentives for further creation” without prohibiting all possible infringements, which reflects of the “unlikelihood that the copyright holder would suffer substantial economic harm to the value of or the market for her work because of the appropriator's activity.” It reflects the idea that any minor harm is “outweighed by the strong public interest in fostering the creation of artworks that speak critically about social norms and constructs.” Ultimately, this article claims, “Appropriation is an art form and a method of creation conceived and defined as a critical force - as such, it is deserving of liberal protection from copyright infringement suits.”
By Adriana Collado. Published in Journal of Technology, Law, and Policy, Vol. 9, Issue 1, June 2004.
Collado's article goes through the differences between parody and satire as stated by various court cases. This analysis includes a look into the Campbell and Seuss cases. With regards to the Seuss case, Collado states that the Ninth Circuit "unnecessarily narrowed the Campbell holding and set a precedent inconsistent with the goals of copyright law and with the Campbell decision itself" reaching the same conclusion as the Tushnet article.
Collado then analyzes satire as a fair use and how Seuss was inconsistent with Campbell. Specifically, Collado takes issue with the conclusion that there would be significant market harm from "The Cat NOT in the Hat!"
"[I]t seems unlikely readers would regard “The Cat NOT in the Hat!” as a substitute for the original, especially since the works target different audiences. While the original Dr. Seuss work is sold in the children’s section of the bookstore, “The Cat NOT in the Hat!” would likely be sold in the adult humor section. Furthermore, the fact “The Cat NOT in the Hat!” was labeled as a parody on its front cover and the author’s name was clearly depicted reduced the possibility readers would confuse or substitute the secondary work for the original."
By Footnote 14 of the Campbell decision (cited above), Collado concludes, there should have been fair use protection for this satire as the potential for market harm was slight.
Collado is a proponent of more freedom for satires. She disagrees with the Bisceglia opinion that satirists can "shop around" for other material if they cannot find a way to make a comment on the original work. Instead, Collado feels that a satirist's ideas are "often intertwined with their underlying source material" and if a satirist must look elsewhere for material, "the idea might not be created at all, thus generating a result...contrary to the goals of copyright law." Finally, Collado argues that satires not only do not displace the market, but could even "increase demand for the copyrighted work" by increasing interest in the original .
Overall, Collado's article provides a well-reasoned insight into the reasons why satire should be given fuller fair use protection as opposed to the Seuss case.
Tyson, Kimball. "The Illegal Art Exhibit: Art or Exploitation? a Look At the Fair Use Doctrine in Relation to Corporate Degenerate Art." Southern Methodist University School of Law Computer Law Review & Technology Review 9 (2005): 425.
This article responds to the "Illegal Art" exhibit that toured the country and features Forsythe's work. The author (who repeatedly spells the artist's name "Forsyth") wants to assess whether or not Food Chain Barbie is fair use--even though the court has already ruled it is. She contends the artists are not sincere in their parodies, and thinks they are actually using art to serve their personal "greedy" objectives. After an abbreviated history of art, Tyson says these works are "an ancillary to Pop Art of the 1960's that take corporate images and use them in their works to convey a parodic message not only of the image itself but of the larger societal scheme of which it reflects." She also summarizes the Copyright Act and defines Fair Use. Instead of actually analyzing what the court said about Forsythe's work, she merely repeats it, and it seems, decides to agree with their ruling. One of the few useful things about this article is her comparison of Forsythe and Koons:
"In the Rogers case, there is no doubt that Koons' use of the original work would compromise Rogers' market of the "Puppies" and "would prejudice the market for the sale of "Puppies" notecards or any other derivative uses he might plan." 247 However, in Forsyth's situation, his photographs seem to have little to no effect on the commercial gain of Mattel based on their copyrighted Barbie Doll. Photographs of Barbie in a blender or in a casserole dish are not really going to have a significant chilling effect on Mattel's market; [this] weighs in his favor."
Tyson allows that the Barbie series is a fair use, but remains suspicious of Forsythe's motives. She writes, "The idea of using art and distorting already existing images to convey a message, to illustrate the absurdity of our times, seems very vulnerable to exploitation. In Mattel Inc. v. Forsyth, the artist had very distinct aims in his creation. Call this a derivative work, call it exploitation. Regardless, perhaps these artists used the well-known corporate images as a way to make money. Just as Volkswagen manipulated the automobile market and somehow made consumers feel as though they were really stepping out of conformity in buying a VW, so these artists, under the pretense of satire and art as corporate parody, had an objective no different than that of the corporations and consumer crazed society which they mocked: personal gain motivated by greed, selfishness, and envy." To me, her argument falls flat given that Forsythe did not profit hugely from the works. Art is his profession, his means of making a living, and to charge $400 for a work that he spent time creating does not seem greedy or unreasonable. She contradicts herself, but this piece is valuable to my research because it takes a position I haven't yet encountered and deals with the concept of artists' "worthiness" so to speak and the merit of their intentions.
By Rebecca Tushnet and Bruce Keller
Tushnet and Keller's article discusses the nature of parody and satire and the issues that can arise with making a clear distinction between the two. While the article involves copyright, trademark, and right of publicity cases, it is copyright that applies specifically to this discussion.
In their analysis, Tushnet and Keller applaud the "nuanced" reasoning employed by Justice Souter regarding the approach to satire. Specifically, they cite footnote 14 from the Campbell case (cited above) as a correct approach towards satire and parody.
The article then looks at the case of Seuss v. Penguin and proceeds to explain where the court made a mistake. In their opinion, the court was making a decision on "aesthetics" which the court should not be allowed to do. To determine that a work makes no comment on the original work involves passing "literary judgement" which goes beyond the scope of the courts. Also, if the case comes down to a distinction between parody and satire, anyone will be able to make legal arguments for both possibilities. Tushnet and Keller caution that with such a clear line between parody and satire, there is a large potential for the court to inadvertently suppress speech by making the "wrong" characterization of the work.
The article's conclusion is that the concept of a line between parody and satire should be "abandoned in favor of a fair use analysis that finds addition of critical insights...to be favored uses without judging the merits of those insights." The article is incredibly favorable to satire's ability to claim fair use from both a legal perspective and the general cultural perspective of protected speech.
Zando-Dennis, Julie. "NOT PLAYING AROUND: THE CHILLING POWER OF THE FEDERAL TRADEMARK DILUTION ACT OF 1995." Cardozo Women's Law Journal 11 (2005): 599.
This article is about the Dilution Act of 1995, which is relevant to the Forsythe case because Mattel claimed that his use of their trademark could both blur and tarnish it, meaning, confuse consumers or damage the product’s image/reputation. Zando-Dennis explains that works of satire and parody are most likely to be accused of causing dilution. Mattel has a history of filing suit as soon as they get wind of any unauthorized use of the Barbie name or image, says Zando-Dennis, who points to the website www.trademarks.org (devoted to criticizing Mattel) as evidence of the loathing their lawsuits have engendered amoung advocates of free speech. She delves further into the definitions of blurring and tarnishing, giving useful and clear examples how they can be both beneficial and harmful.
The second section of her article is dedicated to “Subversive Activities that Parody Mattel’s Barbie Doll,” including Mark Napier, an internet artist who produced digitally altered images of Barbie and the band Aqua, famous for their song "Barbie Girl" that all resulted in litigation. "Another artist, Paul Hansen, sold 150 modified Barbies as art works, on which he made a profit of around $ 2,000. Mattel sued for damages of $ 1.2 billion," she writes illustrating how rediculous Mattel makes itself appear. Forsythe's case is discussed in the section "Current Trends, Successes and Remaining Challenges." Zando-Dennis quotes Forsythe's lawyer as saying "This case is about insisting that a corporate giant can't stop an artist from using one of their products to create art and to comment on our society. If we were to allow that to happen, the content of our culture would be greatly reduced and emptied. We cannot allow Mattel to do that." Clearly, Zando-Dennis vigorusly agrees with the ruling in Forsythe's favor. She admires the way the case has "significantly liberalized trademark law" and hopes other circuits (the 8th in particular) will follow the 9th's lead.
Mattel Inc V Walking Mountain Productions. No. 01-56695, 01-57193. US Court of Appeals for the Ninth Circuit. 6 Mar. 2003.
Filed December 29, 2003. Opinion by Judge Pregerson. This appellate ruling confirms the district court’s grant of summary judgment to Tom Forsythe and dismisses Mattel’s claims that he infringed on their copyrights. Because this article contains a “background” section that details the previous trial extensively, I am going to use this case instead of the first one. It is more comprehensive and recent. The document begins by describing the nature of Forsythe’s work: “a series of 78 photos entitled ‘Food Chain Barbie’ in which he depicted Barbie in various absurd and often sexualized positions…For example, ‘Fondue a la Barbie’ depicts Barbie heads in a fondue pot.’” It talks about the series’ limited market success which amounted to an income of $3,659, half of which came from purchases made by Mattel investigators. The court notes his self-given title of “Artsurdist” and concedes that his work attempts to communicate a “serious message with an element of humor” that intends to critique and ridicule Barbie. It then goes over the various motions and actions that lead up to this particular appeal before reaching the “discussion” section.
This is really the heart of the case, where Pregerson explains why “Food Chain Barbie” is considered fair use. He confirms the three reasons cited by the district court which are that 1) his use was a parody criticizing Barbie 2) he only copied what was necessary for this purpose 3) his photos couldn’t affect the market demand for Mattel’s products. He argues that Forsythe’s work is transformative because it “presents the viewer with a different set of associations and a different context” than Mattel does. Forsythe did not display the entire Barbie in his pictures, and only showed what he needed to in order to convey his message. “We do not require that parodic works to take the absolute minimum amount of the copyrighted work possible,” Pregerson says. And although the works were intended to be sold commercially, the fact that they were unsuccessful shows that he’s not taking any business from Mattel because they appeal to different markets; Mattel to children’s toys, and Forsythe to adult-oriented artistic photographs.
Forsythe, Tom. "Food Chain Barbie & the Fight for Free Speech." National Coalition Against Censorship. 10 Aug. 2004. 27 Nov. 2006 <www.ncac.org/art/20040810~USA~Tom_Forsythe_Food_Chain_Barbie.cfm>.
Forsythe posted this statement on August 10, 2004 as a follow-up to the District Court’s June 24th ruling ordering Mattel to pay his legal fees, which amounted to $2.1 million over the course of five years of litigation, from 1999-2004. In this piece, he maintains that Mattel’s only tactical strategy was to overwhelm him with the cost of his defense and essentially bankrupt him into submission. He calls his case precedent-setting and says it should will discourage corporations from filing suit against artists who criticize their product and will encourage lawyers to work for other artists that get sued because they are more likely to be compensated, like Forsythe’s counsel was.
The rest of the statement details the Mattel v Walking Mountain productions saga from start to finish. He was served with a copyright and trademark complaint from Mattel, decided to fight back, searched unsuccessfully for representation, finally got some help from the ACLU of Southern California who petitioned a San Francisco firm (Howard, Rice, Nemerovsky, Canady, Falk & Rabin) to take the case pro bono. He defends his work as an “obvious” example of fair use—“political and social criticism presented with humor and parody.” Forsythe calls the trial “an essential fight” and says that free speech is paramount to our free society. He argues that it is not the government that censors us, but corporations. “They make their brand ubiquitous and then complain if anyone uses the brands to criticize the resulting crass consumerism,” he writes.
Because we are so sensitive to the threat of official censorship, we don’t notice when it is privately exercised by powerful companies with unlimited funds at their disposal. Forsythe calls the legal system a “boxing ring for the rich.” “I created the Food Chain Barbie series as a seriously funny stab at mindless consumerism, the impossible beauty myth and the advertising that brings it all into our lives,” he explains. The artist’s responsibility is thus to comment on the brands that dominate our lives in order to communicate with the world.
By Julie Bisceglia. Found in ASCAP Copyright Law Symposium, Volume 34, pages 1-34, 1987.
Bisceglia's article discusses in great detail the legal standing of parody by analyzing numerous cases that involve parody and/or satire. After concluding that there are contradictions and inconsistencies regarding the nature of fair use as it applies to parody, Bisceglia offers her own legal definition of parody, which includes "the parody must criticize the source text"
Assuming that the definition of satire is a work that uses a copyrighted work to comment on something else, Bisceglia takes a view that satire should not have protection under fair use. Bisceglia says that "a parodist must have good reason for encroaching on a copyright owner's territory...using a copyrighted work to snipe at other targets does not involve the same urgency."
Furthermore, Bisceglia does not see her view as a matter of restricting creativity. In her opinion, satire or parody "does not depend on a single text" and if the author cannot acquire the necessary license he should be able to find some other source for his work.
Bisceglia's overall point is very restrictive of satire. Under her definition, most satire would have no legal standing to claim fair use.
CAMPBELL v. ACUFF-ROSE MUSIC, INC. (510 US 569, Supreme Court, 1994)
Widely regarded as the landmark case for parodist, Campbell v. Acuff-Rose gave the law a better definition where parody and satire stand in fair use. In brief, the case involves the rap group 2 Live Crew parodizing Roy Orbison's song "Oh Pretty Woman" for a rap version called "Pretty Woman". Specifically, 2 Live Crew used the opening bass riff and the phrase "Pretty Woman". Orbison sued for infringement, 2 Live Crew claimed fair use. The district court ruled in favor of Campbell, the appeals court ruled in favor of Acuff-Rose, and the Supreme Court ruled in favor of Campbell.
There is insufficient space to discuss in full the Court's view on parody, satire, and the fair use clause. But a few things are worth noting:
1) The Court draws a line between parody and satires and how they have different abilities to claim fair use.
"If, on the contrary, the commentary has no critical bearing on the substance or style of the original composition,...the claim to fairness in borrowing from another's work diminishes accordingly (if it does not vanish)...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."
This statement implies severe limitations on satire's ability for fair use, but does not shut it down entirely. This is a further narrowing of the Elsmere ruling and actually narrows further than Rogers.
2) The Court does provide an out for satire to have a stronger claim to fair use protection. Specifically, footnote 14 (which is actually refering to the previous paragraph)
"[W]hen there is little or no risk of market substitution...taking parodic aim at an original is a less critical factor in the analysis, and looser forms of parody may be found to be fair use, as may satire with lesser justification for the borrowing than would otherwise be required."
Thus, if there is little market competition between the satiric version and the original, satire has a much stronger claim to fair use.
3) In a case where a work has both "satiric" and parodic work, the satiric part does not impact the fair use defense.
"The Act has no hint of an evidentiary preference for parodists over their victims, and no workable presumption for parody could take account of the fact that parody often shades into satire when society is lampooned through its creative artifacts, or that a work may contain both parodic and nonparodic elements."
Thus, in keeping in line with Rogers, if even a part of the work can stand as commentary on the original, it has a stronger ability to claim fair use, even if the majority of the work is satiric.
In summary, while the Supreme Court does place more limitations on satire and less on parody, there are many means by which satire can claim fair use successfully.
Richard A. Posner, The Journal of Legal Studies, Vol. 21, No. 1. (Jan., 1992), pp. 67-78.
In this article, which was published shortly before the Supreme Court heard the case of Campbell v. Acuff-Rose, Posner lays out an argument for how parody can be considered fair use. While Posner focuses heavily on the market and economic impacts of a parodic work (which is relevant to the fourth factor of 17 USC 107) he also considers the definition of parody. Posner states that for a parody to be considered fair use, there must be three qualifications:
1) That the parody uses the parodied work only as a target not weapon. It is from here that Posner divides parody into two categories: "weapon" parodies, where the target isn't the original work but rather uses the copyrighted work to comment on something else; and "target" parodies, which comment on the original work itself. The latter should be allowed to claim fair use (assuming it meets the other two qualifications) but the former should not.
2) The parodist should not be allowed to take a portion of the copyrighted work such that the parody becomes "a substitute for that work". Posner admits that this is a "vague criterion."
3) The fact that a parodist only takes a small amount of copyrighted material should not be relevant to fair use.
It is the first factor that is the most relevant to this argument. Posner's definition of a "weapon" parody is very similar to the definition of satire. This means that Posner is opposed to satire's ability to claim a fair-use defense as it should immediately be considered infringement.
In Chapter 5 of Free Culture, Lawrence Lessig lays out anecdotes and archetypes of all manner of piracy. The duplication of copyrighted CDs and DVDs in foreign markets is touched upon, but one of the main salient points is his defense of Peer-to-Peer file sharing networks, the groundbreaking networks and servers which made Section 512 absolutely necessary and the rulings on which still protect YouTube from harm.
One of Lessig’s major talking points is his attribution of the four archetypal uses of P2P networking: stealing music, sampling music before buying, access to abandonware or other copyrighted content that is no longer available by traditional means, and those who search for content that has no copyright or a Creative Commons license and is meant to be shared.
This is a highly utopian view of both P2P networking and the internet, but at the very least interesting to consider. Lessig goes on to discuss drops in CD sales and later Jack Valenti’s ridiculous claims about VCRs as “tapeworms,” just waiting to drive the industry down. If anything, the VCR and file-sharing networks both paved the way for the kind of content generation and also server networks that my final project will use and draw attention to.
This letter shows how simply ludicrous copyright holders can be concerning their properties. This letter was sent in 1996 to a Manuel J. Perez, who displayed on his MIT homepage an image including characters from the then-lucrative children’s series, Mighty Morphin’ Power Rangers. The letter was sent by legal representatives of Saban Entertainment, Inc.
I mention this letter because it displays a highly ridiculous side to the way that copyright holders will sometimes deal with new technologies, and specifically with internet culture. Disregarding any quality of judgment, Saban sends a cease and desist order to a member of the world wide web who is certainly not, as they deem, practicing any “unfair competition.”
In fact, at the very least all that Perez’s sit was doing was adding a very small amount of free advertising for the Power Rangers brand and intellectual property. This is an oft-overlooked factor of the YouTube debate. When a rogue parodist concocts a transformative trailer for The Shining, for instance, it has only a positive effect on our view of both Stanley Kubrick’s opus and even Peter Gabriel’s “Salisbury Hill.”
Similarly, the media that I will sample could, upon a strike of popularity, only benefit all parties.
In this case, the Supreme Court rules 2 Live Crew’s commercial parody of a Roy Orbison song is protected under the auspices of fair use. The court found the new song to be significantly transformative, both building upon the earlier work as a new entity and sufficiently parodying the original in a way that was ruled as fair use. The court also found a portion of Section 107, “the amount and substantiality of the portion used in relation the copyrighted work as a whole” to be a key factor, deciding that the small amount of the song actually used was significantly small enough, even if that portion displayed the heart of the work. “Even if 2 Live Crew's copying of the original's first line of lyrics and characteristic opening bass riff may be said to go to the original's 'heart,' that heart is what most readily conjures up the song for parody, and it is the heart at which parody takes aim.”
I reference this case in relation to my project because this case deals with two important factors: parody, and what is said to be the “heart of the work.” My project will be clearly defined as parody, while at the same time drawing from key thematic elements of the original works, which creates the potential for the project to be deemed as taking the heart of the work.
This is also an issue as the audio track of my project will be a continuous copyrighted work, taking the original in its entirety and transforming it to a new medium of video.
FISHER V. DEES (794 F.2d 432, 9th Circuit, 1986)
The case of Fisher v. Dees provides an example of the duality of satire and parody. The case was brought by Marvin Fisher and Jack Segal, who created and composed a song called "When Sunny Gets Blue", described by the court as "a romantic and nostalgic ballad". In 1984, Rick Dees, a comedian, contacted Fisher for permission to make a parody of the song for a comedy album. When Fisher declined, Dees went ahead and recorded the song anyway. Fisher sued, and the District Court ruled in favor of Dees. On appeal, the 9th circuit upheld the district court's ruling.
In the ruling, the Court reaffirms the statement made in Elsmere v. National Broadcasting Company with regards to the "conjure up" test. As with Elsmere, the court decided that a parody is entitled to use at least enough material to "conjure up" the original. This concept is quoted again in the
THE FAIR USE COMMERCIAL PARODY DEFENSE AND HOW TO IMPROVE IT -- Jonathan M. Fox, 46 IDEA 619, 2006 (LexisNexis -- SEARCH IN “LAW REVIEWS” USING THE TITLE IN THE “KEYWORD” FIELD)
In this article, Fox lays out the divergence between the dictionary definition of parody and the legal one, and concludes that “Supreme Court's current definition of parody has allowed certain works, completely devoid of the elements of literary parody, to qualify as fair use parodies” (I). This is because he argues that the court has given parodists too much flexibility by interpreting too broadly what a “parody” is.
Fox writes, “It appears that the purpose of fair use is to be fair to the party accused by the copyright holder of infringement” (V). This is because of the disconnect between what dictionaries say is “parody” versus what the courts say it is: