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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.
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.
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.
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.
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.
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:
Although most would find 2 Live Crew's version of Pretty Woman to be at least mildly amusing, the Supreme Court made it very clear that the work's humorous component was not what made the song a fair use. Instead, it was primarily the song's transformative character coupled with the fact that it commented on or criticized the original. Both of these characteristics that won the song fair use protection are only tangentially related to the traditional definition of parody. Similarly, in its decision in SunTrust Bank, the Eleventh Circuit established that "judges need not set themselves up as arbiters of whether the product is funny. (V.A)
Fox then goes on to list ways in which copyright law can be changed to curtail the possibility that courts will grow too lenient with parodies. “Although commercial parodies are deserving of protection from a First Amendment perspective,” Fox writes, “their strong commercial status renders their position in the realm of copyright law decidedly more suspect” (VI).
Fox makes the pertinent observation that legal definitions need to conform to dictionary ones, or else it leaves future courts with little ability to analyze and apply precedent. Furthermore, he argues that that if parodists are all but immunized from infringement suits, then it has the possibility to negatively affect the progress of arts and science by curbing the creation of new works--after all, it would essentially negate the purpose of copyrights, to give security to authors that their work will not be stolen, if all anyone has to do to copy it is to claim fair use through parody.
THE CAT IN THE HAT'S LATEST BAD TRICK: THE NINTH CIRCUIT'S NARROWING OF THE PARODY DEFENSE TO COPYRIGHT INFRINGEMENT IN DR. SEUSS ENTERPRISES v. PENGUIN BOOKS USA, INC. -- Jason M. Vogel, 20 Cardozo L. Rev. 287, September 1998
This article analyzes the decision of infringement against the publisher of the book The Cat NOT in the Hat!, a satiric account of the OJ Simpson double murder trial, written in the style of Dr. Seuss. The case was ruled an infringement because The Cat NOT in the Hat! used Dr. Seuss conventions as a vehicle for commenting on OJ Simpson; Campbell v. Acuff-Rose established that to be considered parody and not satire (which is not covered under fair use--see “Unfair Use”), a work must criticize of comment on the work it is copying. The problems with this is that:
The argument that the commentary element should be an absolute prerequisite to fair use, thereby dispositively disqualifying satires, suffers four significant shortcomings, however. First, distinguishing between parodies and satires involves arbitrary judicial line-drawing, as there is no clear standard for how closely the work must focus on the original to qualify under "parody" status. ... A second significant shortcoming to the parody/satire dichotomy is the fact that satiric works causing inherently offensive associations to be drawn to the underlying work are as unlikely to be licensed as those that directly criticize the underlying work. ... A third flaw of the parody/satire rule is the notion that should the copyright owner refuse to license a satire, the satirist will be able to find other copyright owners who are more amenable to his use of their works. ... Finally, it is unreasonable to suggest that potential authors will be dissuaded from creating new works solely because their product may later be used as "unpermitted" and uncompensated elements of a satire. To the extent that the satire does not serve as a market substitute for the original, its presence will result in no cognizable economic loss to the original author. (B.III)
Vogel proposes that all satires fall under fair use consideration, much like parodies. This is because satires behave in much the same way that parodies do, and should be afforded the same rights: “Because inherently offensive satires implicitly analogize the external target of their criticism to the material being borrowed, a reciprocal analogy can be inferred. For example, The Cat NOT in the Hat! implicitly asserts that, in some respects, O.J. Simpson is like the Cat in the Hat. This creates a reciprocal implication that the Cat in the Hat is somewhat like O.J. Simpson” (IV). He goes on to outline many of the arguments for satire as fair use discussed in “Unfair Use.”
This article makes some good points that fit in nicely with the narrative for this project that satire is not only commentary--and thus falls under free speech and fair use protections--but that it meets the other prerequisites for fair use by virtue of its similarity to parody. The courts are beginning to take note of this, as evidenced by the Campbell decision, and it is probably only a matter of time before they rule thata satire is substantially similar to parody.
SUNTRUST BANK v. HOUGHTON MIFFLIN COMPANY (268 F.3d 1257) -- LexisNexis
This is the Eleventh Circuit appeal of the of the case brought by Suntrust against Houghton Mifflin charging infringement on Margaret Mitchell’s Gone With the Wind by Alice Randall’s The Wind Done Gone. In this case, Judge Birch ruled in favor of Houghton Mifflin by virtue of First Amendment rights. Interesting, he writes in a footnote:
I believe that fair use should be considered an affirmative right under the 1976 Act, rather than merely an affirmative defense, as it is defined in the Act as a use that is not a violation of copyright. ... However, fair use is commonly referred to an affirmative defense, see Campbell v. Acuff-Rose Music, Inc. ... Nevertheless, the fact that the fair use right must be procedurally asserted as an affirmative defense does not detract from its constitutional significance as a guarantor to access and use for First Amendment purposes. (n3)
Birch rules that The Wind Done Gone had value beyond what fair use laws afforded it because the nature of the work was a social commentary meant to create dialogue and end the myths about the Antebellum South. “Freedom of speech requires the preservation of a meaningful public or democratic dialogue,” he writes (II.B). In essence, Birch held that Randall was merely continuing a discussion that Mitchell had established; by adding her own expression, Randall was free to “use or discuss the idea” (II.B.1).
This was a landmark, but controversial decision, as discussed more in “ The Wind Done Gone, the Law Done Wrong?” and tangentially in “Fair Use Commercial Parody Defense.” I agree with the outcome, though I’m undecided about the rationale. Instead, I think a less controversial justification for ruling for fair use would be to allow satires--which The Wind Done Gone is more of than a parody--the same protections afforded to parodies. This is discussed further in “Unfair Use.”
Unfair Use: The Lack of Fair Use Protection for Satire Under § 107 of the Copyright Act -- Adriana Collado, Journal of Technology: Law & Policy (June 2004)
This article gives a summary of fair use and parody decisions and attempts to show how satire should be protected under fair use because it is transformative. The primary argument against protecting satire under fair use is that “owners are likelier to allow use of their works in satire because satires do not target the copyrighted works directly” (II.A). This, of course, ignores the problem encountered in cases such as Dr. Seuss Enterprises v. Penguin Books USA, where, for instance, “satirists that propose using copyrighted works to criticize something else in an offensive manner are not likely to be granted licenses because copyright owners may fear the use will reflect negatively on their works” (IV.A). That is, courts have reasoned that because specific copyright holders aren’t being directly targeted by satirists, they will gladly license their work.
This line of reasoning willfully ignores reality; however, this reasoning still should not preclude fair use of satire, as, Collado notes, “reputational harm is not an interest that copyright law is designed to protect” (IV.A). Certain copyright holders, such as Disney and Dr. Seuss, notoriously guard their property against parody. Yet because of the rich nature of these works, they are ripe for parody and satire; by disallowing fair use of satire, the law in effect stifles the free speech and creativity of new authors. “The assumption,” writes Collado, “a satirist can ‘shop around’ for copyrighted works to employ in his satire ignores the nature of the creative process” (IV.C).
Finally, we may be headed towards a future where a court will rule that satire is protected under fair use. As Collado notes, “In Campbell [v. Acuff-Rose Music], the Supreme Court defined satire as ‘commentary.’ In turn, the Fair Use Doctrine states ‘fair use of a copyrighted work ... for purposes such as criticism [and] comment ... is not an infringement of copyright’” (V). If a court were to acknowledge this--and the Supreme Court has nearly already done so with Campbell--then it would place satire under the fair use umbrella alongside parody. This would have an enormous impact on society; however, because most satire, like parody, does not compete in the same market as the original work, there can be little argument besides greed and prudishness against this result. Yet, as noted before, prudishness cannot be a legal justification for stifling free speech; as for the competing markets: satires and parodies, by their very natures, nearly never compete in the same markets as their progenitors, which would render moot the main argument against their fair use.