Burnett's language is X-rated now, due to use of her character in a very different setting in Fox's animated series "Family Guy." The segment in which her character appears is said to be only 18 seonds long. Here is the story from ABC:
Carol Burnett Sues Fox for 'Family Guy' Copyright Infringement
Charwoman Portrayed as Porno Shop Maid
LOS ANGELES, Mar. 15, 2007 - Comedian Carol Burnett sued 20th Century Fox Thursday, seeking more than $2 million in damages for her portrayal on an episode of the Fox Broadcasting animated series "Family Guy."
Burnett's copyright infringement lawsuit states the show's creators did not have her consent to include her cleaning woman character -- known as the Charwoman -- in an April 2006 episode.In the episode, the Charwoman is the maid in a pornography shop. The segment also incorporated an "altered version" of Burnett's theme music, and the characters in the show perform Burnett's signatur ear tug, her suit states.
In addition to her copyright infringement claim, Burnett, 73, alleges 20th Century Fox violated her publicity rights.
The studio has been quoted as follows:
"`Family Guy,' like `The Carol Burnett Show,' is famous for its pop culture parodies and satirical jabs at celebrities. We are surprised that Ms. Burnett, who has made a career of spoofing others on television, would go so far as to sue `Family Guy' for a simple bit of comedy," said 20th Century Fox Television spokesman Chris Alexander.
A trifecta for Tushnet: female subject; porno content in a fair use defense; female litigant against decidedly male dominated humor-mill!
ReplyDeleteI do think that the Charwoman dispute supports Professor Tushnet's larger thesis. For those fair use cases that do involve sexualization, it is, I think, a sad commentary on our society that women are overwhelmingly the target of demeaning treatment, and that the demeaning is regarded as transofromative. My departure from her comes in her arguing (as I understand it) beyond that to say that fair use is less likely to be found in other contexts.
ReplyDeleteMs. Burnett's lawsuit is doomed and it should be.
ReplyDeleteWhy it is doomed:
Family Guy's portrayal is protected by the doctrine of Fair Use. In the copyright context, this is well established by Campbell v. Acuff Rose. In the trademark context, it is somewhat less developed, but the principles are the same.
Why it should be:
This is a cornerstone of free expression. Whether you like Family Guy or not, the First Amendment protects your right to criticize, parody, and ridicule. Yes, even if the subject of that parody or ridicule does not particularly care for the result. Hustler Magazine v. Falwell, while not a copyright case, illustrates the principles at play. In that case, Jerry Falwell (a minister no less) was portrayed in a fake Campari ad as having had sex with his mother in an outhouse. Not surprisingly, this offended him. He sued for libel and intentional infliction of emotional distress. The Supreme Court held that the First Amendment protected this parody.
In the Burnett v. Family Guy case, Burnett is attempting to make an end run around the First Amendment values that Hustler v. Falwell protects.
Therefore, not only will her suit fail, but no matter how much you like Carol Burnett or hate Family Guy, that failure should be embraced as a victory for all of us, because a contrary result would be a terrible dimunition of all of our Constitutional rights.
I think the key fact in this case is that Burnett's permission was sought, and McFarland proceeded without it.
ReplyDeleteI am routinely in the position of having to decide to seek permission or not. And it's a cornerstone of our analysis that if one asks, and is told no, that the final product will have to be "more different" than if we had never asked at all.
And that's on top of the weird and ultimately wrong-headed practice of even seeking permission for uses that are clearly fair use, which is fast becoming a commonplace in Hollywood. Soon, there will be Lanham Act claims based on the pro sports lobby's theory that any mention of something without permission must be misleading, since consumers have been taught that such uses are always with permission.
Since Family Guy has a longstanding tradition of being full of pop cultural references of this sort, without any indication that they are authorized, it would seem to be a difficult stretch for Burnett to argue that the use of her name and likeness implies any sort of endorsement on her part. That would speak to the publicity-rights part of the case, which seems like the stronger of the parts; the copyright case is much weaker since no substantial amount of a copyrighted work was copied. Publicity and trademark rights would seem more applicable.
ReplyDeleteFox was pretty gentle in its response to the press, but I think they could have a field day deposing Burnett if it gets that far. She made a career out of parodying popular culture, and I'd be curious to see her try and explain how Family Guy riduculing her was different from what she did to Gone With The Wind, Sunset Boulevard, etc. Certainly there's the pornography angle, but that shouldn't affect the fair use analysis, no?
ReplyDeleteI respectfully disagree with Mr. Pharo.
ReplyDeleteI think the key fact in this case is that Burnett's permission was sought, and McFarland proceeded without it.
As a matter of practice, I see no harm in asking permission, even if it is not required to do so.
It shows respect: This is something that is far too often forgotten in the practice of law. One can never suffer from showing respect to the creator of a work. Imagine if your neighbor had every right to force an easement over your property. How would you prefer to be dealt with? By your neighbor asking for your consent, or by your neighbor simply using the compulsory easement? Parodying Burnett might not seem like a respectful point of departure, but respect for the artist as a creator is different from respect for the artist's work or even their person.
It has the potential to stave off a legal battle: Even if it is fair use, there can still be an expensive battle over that issue. Why not seek assurances in the beginning and stave off any such fight? Nobody loses in that situation.
Potential cooperation: It is always possible that the parodied person will actually enjoy the parody or otherwise consent in a constructive way.
There is no harm in receiving a rejection: If it is fair use, then fair use is not magically dispelled because the parodier sought permission and it was denied. Fair use is there to protect free expression for all of us, not to protect just the parodier (or other fair-user).