Monday, March 19, 2007

Ear-Tugging Actually Means "Call The Lawyers."

So it seems Carol Burnett is suing the necessary parties behind Family Guy because they appropriated her cartoon "charwoman" character and for disparaging her personally, etc. (Hat tip to Ron Coleman, here.)

It takes little imagination to anticipate that the studio will claim parody as a defense, at least in part. But it's clear that the studio still has its PR people doing the talking, instead of its lawyers, because the reported statement by the studio does a nice job of making the lawyers' jobs much harder: "'Family Guy,' like the 'Carol Burnett Show,' is famous for its pop culture parodies and satirical jabs at celebrities."

You can just hear the lawyers groaning.
If it's a pop culture parody, then there's an arguable defense; if it's a satirical jab at a celebrity, then you've got a problem.

That distinction, made by courts and practitioners alike and premised on the
Campbell v. Acuff-Rose decision, is actually a pretty fair one, to a point. The reasoning starts with the eminently reasonable assertion that if I'm going to make fun of (comment on, disparage, analyze, play on, whatever) Work X, I need to be able to "conjure up" Work X sufficiently. The point of a joke is that it builds on and then subverts expectations; in the case of parody the expectations in question is the original work.

Once I move away from commenting on the work itself, though, that rationale breaks down. If I want to make fun of {anything NOT Work X}, I should be able to do so without calling on someone else's copyright-protected work; I certainly can't say that I need Work X.

It's not uncommon (and there's an example of litotes right there) to see accused infringers raise the parody defense - more often than not inappropriately - and it drives me up the wall. Yiddish mit Dick and Jane and the JibJab video are two examples that spring to mind, but there are myriad others. (And quite honestly, I think the Supremes decision concerning Big Hairy Woman was a stretch, as well.)

The way to think of it is to ask if there's another work besides the allegedly infringED work that could serve the purposes of the allegedly infringING work just as well. So if I wanted to point out some inherent flaw or hypocrisy in the Dick and Jane books I would have to use the Dick and Jane characters, scenarios, cadence -- I would have to evoke Dick and Jane. But if I want to make a point about teaching Yiddish in little-kid-book terms, then my ends would be served as well by evoking Dick and Jane as by evoking Thomas the Tank Engine or Poky Little Puppy.

Similarly, This Land is Your Land speaks to a certain unity of Americans across social or cultural divides, and set the JibJab animation up nicely since it addressed a certain animosity and divisiveness across social/cultural divides, while at the same time making a more subtle point about citizens being united in their disdain for the politicians in question. The song was a great choice, but certainly not the only choice possible to serve that purpose.

So too, in the instant case. You have to ask, "what's the joke?" If the point is that Carol Burnett presents herself to the world as particularly moral or upright, and the gag is directed to undermining that, then you've got a parody. Family Guy couldn't make that point about Carol Burnett unless they evoked Carol Burnett. (A little back-story: according to The Smoking Gun the Family Guy had asked to use Carol Burnett's theme song in an episode, and she refused.)

On the other hand, if Family Guy was just making a point about... well, it's hard to think of it out of context. If Family Guy was making a point about how celebrities of the past had fallen, under this analysis then that's satire and that's not protected. Sort of.

"Sort of" because of
footnote 14 in Campbell v. Acuff-Rose, which is so exquisite as to merit quotation in full:
A parody that more loosely targets an original than the parody presented here may still be sufficiently aimed at an original work to come within our analysis of parody. If a parody whose wide dissemination in the market runs the risk of serving as a substitute for the original or licensed derivatives (see infra, discussing factor four), it is more incumbent on one claiming fair use to establish the extent of transformation and the parody's critical relationship to the original. By contrast, when there is little or no risk of market substitution, whether because of the large extent of transformation of the earlier work, the new work's minimal distribution in the market, the small extent to which it borrows from an original, or other factors, 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.
At one level, the footnote is nicely in line with the rest of the analysis and contemporary thinking on Fair Use, in which the fourth statutory factor is considered first among equals. The Court here saying, essentially, that where there's less market substitution the requirements are more relaxed, and when there's more risk of market substitution it is "more incumbent on one claiming fair use to establish . . . the parody's critical relationship to the original."

(Sidebar: Some argue that the Campbell decision steps back from seeing factor four as first-among-equals. I don't read the opinion -- especially footnote 14 -- that way, and in any case at least one Circuit has held that factor four is still primary, and that's the way Professor Hughes teaches it.)

Read closely, however, footnote 14 opens the door to satire being fair use. "[W
]hen there is little or no risk of market substitution . . . 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." (emphasis mine).

I call this exquisite because there's a huge problem with the parody/satire distinction and how parodic fair use doctrine has evolved. At first blush, the parody/satire distinction makes sense, and seems to leave plenty of room for the free speech that is the raison d'etre of Fair Use in the first place.

But on closer analysis it becomes clear that parody is far too narrow a defense. Looking at each case individually, the parody/satire distinction works. That is to say, the 'real' Dick and Jane people claim (rightly) that the Yiddish with Dick and Jane book isn't a parody of Dick and Jane, but a satire or social commentary (or just a joke or other expression) that leverages Dick and Jane to make a broader point, and they
can point to Poky Little Puppy and Thomas the Tank Engine to make their case, claiming that those would serve just as well.

Similarly, the Guthrie estate could make the same claims about the JibJab video, pointing to some other song that approximates the underlying message of This Land is Your Land. And Carol Burnett could make the same argument, as well. If the message is that celebrities of the past have been brought low. . . I'm sure somewhere there's a relevant animation of Gallagher out there somewhere.

The problem arises when the situation is looked at globally. Because Dick and Jane points to Poky Little Puppy, but Poky Little Puppy is protected by copyright, too. And so is Thomas, and so are most songs that would serve instead of This Land, and so is that Gallagher animation, and so on.

We live in an incredibly referential world, where a huge chunk of our lexicon points to and leverages the expression of others, the vast majority of which is legally protected (by copyright and/or trademark). There's an ongoing conversation threading its way through our culture, and it's becoming more and more difficult to participate meaningfully in that conversation without stepping a little bit over the lines that have apparently been drawn.

How many times, for instance, have you heard or read a poem that takes a
mostly octameter acatalectic trochaic poem -- which describes adequately for these purposes The Raven by Poe -- and applies it to some light subject such as cats or hardware malfunctions (or even a not-so-light subject like bombs in Italy)?

Now, okay. The Raven is in the public domain, but pretend for a minute that it was still protected.
The linked poems could at least arguably infringe, or at least come close to infringing, and a more comprehensive search could probably turn up so-called parodies that hew more to the line set by The Raven than these do. As well, those poems are emphatically NOT parodies of Poe's poem. They say nothing about, and are not intended to say anything about Poe's poems or Poe himself.

What they do, though, is use the cultural currency that inheres in Poe's poem - the fact that it's so well known, the fact that it's so dark and so effective at communicating that darkness. The poems use that currency as a launching point for their own contributions to the hum of creativity, taking something light and treating it with too much seriousness, or (in the case of that last one) taking something serious and recasting it in terms more readily available to a reader.

It's those contributions that are being stifled under the current proprietarization (there's probably a better word for that) of culture and expression. When we think of the phrase "fair use" without out lawyers' hats on, we think that kind of use should be allowed, because it's fair. Fair to the creator, because it's only taking that which they already sent out into the world, and fair to the world because it allows us to have richer, more subtle, more complex interactions within it. When we put our lawyers' hats back on, though, that expression is disallowed.

Fair use is supposed to be the safety valve for exactly that sort of problem, but the way fair use has been limited -- particularly by the current understanding in practice of parody/satire -- is limiting the doctrine's ability to serve that purpose. Footnote 14 begins to address that issue, by opening the door for "satire," for which I want to read {NOT parody}, where the economic harm to the original creator is minimal.

I don't think the Caroll Burnett - Family Guy case will take us there, but you never know. In any event it will be interesting to see where and how the doctrine develops, and if Footnote 14 is ever given its due.

--Ben D. Manevitz

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