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Civil Action No. 88-1275
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
1990 U.S. Dist. LEXIS 10895
August 9, 1990, Decided
August 14, 1990, Filed
COUNSEL: [*1]
Deborah Harris, Esq., Irv Acklesberg, Esq., COMMUNITY LEGAL SERVICES, INC., Philadelphia, Pennsylvania.
ALL DEFTS EXCEPT ROBERT J. THOMPSON, David P. Bruton, Esq., Michael Kubacki, Esq., DRINKER BIDDLE & REATH, Philadelphia, Pennsylvania.
JUDGES: Daniel H. Huyett, 3rd, United States District Judge.
OPINION BY: HUYETT
OPINION: MEMORANDUM AND ORDER
In this civil action, plaintiffs n1 allege that the means utilized by defendants n2 to allocate federal subsidies received pursuant to the Urban Mass Transportation Act, 49 U.S.C. §§ 1601-13, has a discriminatory impact upon the black community of Philadelphia in violation of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d. SEPTA has filed a motion for summary judgment, and oral argument was held on October 3, 1989. At the time of oral argument, it appeared that the parties wished to discuss an amicable resolution of this dispute. Therefore, I stayed disposition of SEPTA's motion for summary judgment pending the outcome of settlement negotiations. After several months, the parties advised that negotiations had proved unfruitful and sought disposition of the instant motion. For the reasons stated below, I will now grant SEPTA's motion for summary judgment. [*2]
In LexisNexis, click "Get a Case" and search for case 253 Pa. 422
In The Matter of The Franklin Film Manufacturing Corporation
No.66
Supreme Court of Pennsylvania
253 Pa. 422; 98 A. 623; 1916 Pa. LEXIS 862
March 24, 1916, Argued April 17, 1916
PA State Board of Censors appeals to have a lower court’s reversal of Board’s decision to eliminate certain portions of “Virtue”, mentions Act of 15, May 1915 P.L. 534 that established Board of Censors and guidelines for censorship.
In trying to get Virtue approved to be shown in Philadelphia, the State Board of Censors wanted to remove several portions of the film. Franklin Film appealed to the Court of Common Pleas of Philadelphia, which reversed the censors. The Board then appealed to the state Supreme Court, which decided that, because the Board of Censors did not act arbitrarily, the portions should be removed. By D. Verbofsky
In LexisNexis, click "Get a Case" and search for case 265 Pa. 335
In The Matter of the Goldwyn Distributing Corporation
No. 19
Supreme Court of Pennsylvania
265 Pa. 335; 108 A. 816; 1919 Pa. LEXIS 552
May 20, 1919, Argued June 21, 1919
PA State Board of Censors appeals to have a lower court’s reversal of Board’s decision to eliminate certain portions of “The Brand”, mentions Act of 15, May 1915 P.L. 534 that established Board of Censors and guidelines for censorship. Goldwyn appealed to the Common Pleas Court of Philadelphia because the State Board of Censors to not approve the film “The Brand” for release in Philadelphia, saying that the film was moral and that the Censors were guilty of “arbitrary and oppressive abuse of discretion”. The Philadelphia court approved the film, so the Board of Censors appealed to the state Supreme Court. The PA Supreme court reversed the order, deferring to the initial decision of the Board, causing the film to not be approved. By D. Verbofsky
Walt Disney Productions v. Air Pirates (581 F.2d 751) -- LexisNexis
This Circuit Court case from 1978 involved a suit by Disney alleging copyright infringement of its characters by Air Pirates for its adult counter-culture comic book. Air Pirates mocked Disney’s Silly Symphony books with its own Silly Sympathies line of comics; the defendant also parodied well-known Disney characters such as Toby Tortoise and Max Hare by changing their personalities. Judge Cummings deliberated back and forth over both (1) whether or not a character from an illustrated book could be copyrighted, and (2) whether or not the change in personalities of the characters was enough to warrant a claim to fair use.
Ultimately, Judge Cummings ruled in favor of Disney, writing that
Defendants' assertion that they copied no more than necessary appears to be based on an affidavit, which stated that ‘the humorous effect of parody is best achieved when at first glance the material appears convincingly to be the original, and upon closer examination is discovered to be quite something else.’ The short answer to this assertion, which would also justify substantially verbatim copying, is that when persons are parodying a copyrighted work, the constraints of the existing precedent do not permit them to take as much of a component part as they need to make the "best parody." Instead, their desire to make the ‘best parody’ is balanced against the rights of the copyright owner in his original expressions. [7]
Though he cited as important Air Pirates’ defense that their characters--though similar in appearance and clearly meant to mock Disney’s characters--”parodied [Disney characters’] personalities, their wholesomeness and their innocence,” Judge Cummings’ ruling was ultimately decided primarily by the third copyright factor: the amount and substantiality of the portion taken.
This was an important ruling because it was cited in Original Appalachian Artworks v. TOPPS Chewing Gum, and in that case helped with the ruling that the Garbage Pail Kids were a copyright infringement of the Cabbage Patch Kids. The precedent set here that a parody cannot be the “best parody” without copying more than fair use allows was later overturned in Campbell v. Acuff-Rose Music, which established that sometimes a parody must be the “best” in order for it to qualify for fair use.
ORIGINAL APPALACHIAN ARTWORKS v. TOPPS CHEWING GUM (642 F. Supp. 1031) -- LexisNexis
Following the ruling of copyright infringement against the defendant in Disney v. Air Pirates, the court ruled that TOPPS infringed on the Cabbage Patch Kids with their parodic trading cards, the Garbage Pail Kids. Partially following the precedent set in Disney v. Air Pirates that taking too much in order to make the “best parody” could constitute infringement, Judge Tidwell focused on the first and fourth copyright factors: the purpose and character of the use, and the effect of the use upon the potential market, respectively.
As to the first factor, Judge Tidwell argued that the two products were competing against each other in the same market; however, this ignores the obvious: namely, that the Garbage Pail Kids catered to a wholly different audience than the Cabbage Patch Kids and so, though they might have had similar products in the same market, they were not competing against each other by virtue of the different tastes of their respective audiences. More succinctly, the Cabbage Patch Kids catered to the “wholesome” crowd, while the Garbage Pail Kids catered to the “gruesome” crowd; to argue that they competed against each other is akin to saying that Budweiser competes against Pepsi since both are drinks.
As to the fourth factor, Tidwell makes note of the decision in Sony v. Universal that “There is a presumption that commercial use of a copyrighted product naturally produces harmful effects.” However, this misinterprets the intent of the Sony decision, which was meant to limit complete copying (such as videotaping) for commercial use, not uses that may in fact be transformative.
Finally, Judge Tidwell quotes favorably from DC Comics v. Unlimited Monkey Business, involving parody of Wonder Woman and Superman: "Defendants do not engage in critical comment that constitutes part of the 'free flow of ideas' underlying the doctrine of fair use. Instead, they seek to augment the commercial value of their own property by creating new, and detrimental, associations with plaintiff's property." Tidwell uses this negative language throughout the decision, and makes it clear that he has a low opinion of the Garbage Pail Kids. This is the unofficial fifth fair use consideration: whether you are “good” or “bad.” To Tidwell, the Garbage Pail Kids were clearly “bad” because they were crass commercialized products that took much but added nothing.
What is so astounding about this case and Disney v. Air Pirates is that they seem so blatantly and obviously wrong in retrospect. However, in both cases the judges ruled primarily based on flawed precedent that ended up being perpetuated. It’s hard to the judges too much because precedent is such an important part of the legal process. And if there is one positive to arise from these two decisions it is that, with the ruling in Campbell v. Acuff-Rose Music, fair use and parody were spelled out and handled head-on instead of remaining the nebulous entities they previously had been.