Why We Need Fair Use

Because there just ‘aint enough soul-music-hitler-humor these days…

HT: Andrew Sullivan

Old is New … Satire v. Parody

I’ve always been a bit uncomfortable with how the 9th Circuit dealt with the Cat in the Hat case. Dr. Seuss Enters., L.P., v. Penguin Books USA, Inc., 109 F.3d 1394 (9th Cir. 1997).

I just came across a 1998 article by Santa Clara intellectual property professor, Tyler Ochoa. Ochoa criticizes the 9th’s decision in DR. SEUSS, THE JUICE AND FAIR USE: HOW THE GRINCH SILENCED A PARODY, 45 J. Copyright Soc’y USA 546 (1998)

[The book] it was a satirical account of the O.J. Simpson trial written in the style of Dr. Seuss. Entitled The Cat NOT in the Hat! and labeled “A Parody By Dr. Juice,” the book recounted the events of the trial in simple and repetitive rhyming phrases like those used in The Cat in the Hat and 46 other children’s books written by Theodor S. Geisel under the pseudonym Dr. Seuss. The Cat NOT in the Hat! was illustrated with thirteen depictions of a cartoon caricature of O.J. Simpson, also in the style of Dr. Seuss, wearing the Cat’s distinctive red-and-white stovepipe hat.

Based on a pre-publication advertisement, Dr. Seuss Enterprises filed suit against the authors and publishers of the parody, claiming that it violated the Copyright Act, the Lanham Act, the Federal Trademark Dilution Act, and California Unfair Competition law by using copyrighted expression and registered and unregistered trademarks belonging to the plaintiff. The District Court entered a preliminary injunction against the defendants, holding that the plaintiff had demonstrated a likelihood of success on the merits of its copyright claim, and that the trademark claim presented serious questions for review and the balance of hardships favored the plaintiff. On an interlocutory appeal, the District Court’s rulings were affirmed by the Ninth Circuit in a published opinion.

In this article, I will demonstrate that the Ninth Circuit’s opinion was incorrect, both as a matter of law and as a matter of public policy. In its opinion, the Ninth Circuit misapplied controlling U.S. Supreme Court precedent in holding that The Cat NOT in the Hat! was not a parody and was not a transformative use; in holding that the defendants were limited to that copying necessary to “conjure up” the original; and in presuming that the defendant’s commercial parody would cause harm to the potential market for the original and licensed derivatives.

Part II of this article will discuss the social importance of parody and the related forms of burlesque and satire. Part III will briefly review the development of the parody defense to copyright infringement, with particular attention to the U.S. Supreme Court’s 1994 opinion in Campbell v. Acuff-Rose Music, Inc. [FN5] Part IV will summarize the Ninth Circuit’s opinion in the Dr. Seuss case, while Part V will offer an alternative analysis explaining how the Ninth Circuit erred in enjoining publication of The Cat NOT in the Hat!

I definitely place Ochoa at the top of the hill when it comes to IP professors that have earned and maintained my respect. (He could a bit of tutoring in 1980s pop culture, but that is a private joke). I really wish that I had read this article a long time ago.

Best… Fair… Use… Ever?

Safe for work… I promise.

If you have no idea who Bauhaus was, or if you never saw the movie “The Hunger,” don’t bother clicking.

Everyone else… click.

Fox News Porn - Fair Use Orgy!

This is going to be a fun election for intellectual property wonks. We’ve already seen the Clash of the Anti-Hillaristas!

Now, Fox News finds itself in a fair use maelstrom.

In an effort to criticize the network that brought us eight years of darkness, an anonymous webmaster has created the Fox News Porn website. Apparently the webmaster has detected higher than normal levels of T&A on Fox News.

One of the links brings you to Fox Attacks, a blog that seems to be devoted to tearing down the Fox Network.

Disclaimer, I do occasional legal commentary on Fox. Nevertheless, I don’t allow that to bias my opinion of the network. I do think that Fox is open to plenty of honest criticism, but I find this kind of attack to be more than a little dishonest. Every network dishes up the skin. If these people have a beef with Fox’s content and political leanings, so be it. That is the arena in which they should take on Fox - not some faux morality crusade.

This kind of shrieking is far too reminiscent of the McCarthy-like tactics employed by the religious right.

Lets sit on the sidelines and see if Mr. Murdoch takes the criticism, or if this winds up being a really interesting intellectual property case. The site clearly uses the Fox News logo (trademark infringement) and clearly uses Fox’s copyrighted materials. However, I’m certain that if Fox attempted to bring a claim for either one, the fair use defense would obliterate the claims.

Great Fuck Mashup

Scandalized? Heh.

In Copyright Flap, Dozier Digs Deeper

I was a little flabbergasted by how the law firm that claimed that copyright law prohibits the republication of a cease and desist letter. That issue discussed here: Copyright vs. Free Speech in Cease and Desist Letters.

Watching the firm keep on digging is starting to feel like watching a train wreck.

One commenter said:

Dozier, the more you post the more paranoid you appear… [i]n the end, you’ll make a fool out of yourself and your law firm. (source)

Agreed. But lets unpack the arguments:

In criticizing “liberal ‘free speech’ types” (his words) who believe in fair use, John Dozier gives us this mind boggling twist:

Copyright and Fair Use in Demand Letters

Earlier Post is updated with links to other sources on the subject and additional analysis.

Copyright vs. Free Speech in Cease and Desist Letters

I have seen a lot of laughable cease and desist letters in my career. Usually they come to my attention when the victim of an overreaching cease and desist posts the letters online. The theory behind this practice is that when a small and poorly funded cyber-critic gets an overreaching and bullying cease and desist letter, the best way to react is to share it with everybody. Just as strong sunlight will dry up mold and cause roaches to scurry for the corners, exposing unethically overreaching cease and desist letters to public criticism and comment will make lawyers think twice about how they wield their letterhead — and will make litigants think more carefully about how they choose their legal representation.

J.K. Rowling - Worst British Export Since Rick Astley

The first rule of Harry Potter, you do not write about Harry Potter!

J.K. Rowling filed a copyright infringement suit against the publisher of a Harry Potter Compendium. I used to think that the worst British exports were, in this order, Rick Astley, The Royal Family (the worlds wealthiest welfare recipients), and the Spice Girls. Since the Spice Girls were at least hot, they’re off the list, and J.K. Rowling now tops the list.

Another Family Guy Suit

Seth MacFarlane just can’t seem to keep out of trouble - especially when hypersensitive overreacting IP owners want to stifle creativity in its crib by suing him (bias alert! bias alert!).

In a 2003 episode of Family Guy, When You Wish Upon A Weinstein, Peter Griffin sings a song to the tune of “When You Wish Upon A Star” called “I Need A Jew“.