Professor Rebecca Tushnet of Georgetown Law School has published in 15 American University's Journal of Gender, Social, Policy & The Law a new article entitled, "My Fair Ladies: Sex, Gender, and Fair Use in Copyright," available here. Professor Tushnet is a careful thoughtful scholar, and her thesis needs to be examined in a careful, thoughtful way, something antithetical to the nature of blogs. My comments here are this tentative, more in the fashion of raising questions.
The availability of fair use for sexually-themed works has had a mixed reception in the courts. In MCA, Inc. v. Wilson, 677 F.2d 180 (2d Cir. 1981) defendant’s off-off Broadway show entitled Let My People Come—A Sexual Musical" was described as an “erotic nude show” with “sex content raunchy enough to satisfy the most jaded porno palate." Despite that remark, fair use was rejected, the majority holding: “We are not prepared to hold that a commercial composer can plagiarize a competitor’s copyrighted song, substitute dirty lyrics of his own, perform it for commercial gain, and then escape liability by calling the end result a parody or satire on the mores of society.” Judge Mansfield dissented, 677 F.2d at 191: "In my view the defendant’s use of ‘dirty lyrics’ or of language and allusions that I might personally find distasteful or even offensive is wholly irrelevant to the issue before us, which is whether the defendant’s use, obscene or not, is permissible under the fair use doctrine as it has evolved over the year. We cannot, under the guise of deciding a copyright issue, act as a board of censors outlawing Xrated performances." In Walt Disney Prods. v. Air Pirates, 581 F.2d 751, 753 (9th Cir. 1978), involving a parody of Mickey and Minnie Mouse engaging in explicit activity, fair use was again rejected with the court making explicit its disapproval of defendant's depiction of Mickey and Minne. In Pillsbury Co. v. Milky Way Prod., 215 USPQ 124, 131 (N.D. Ga. 1981) Screw magazine’s parody of the Pillsbury doughboy and doughgirl engaging in sexual activity was rejected, as it was in DC Comics, Inc. v. Unlimited Monkey Business, Inc., 598 F. Supp. 110 (N.D. Ga. 1984) where a singing telegram service did an obscene take-off on Superman and Wonder Woman. On the other hand, in Elsmere Music, Inc. v. NBC, 482F. Supp. 741 (S.D.N.Y) aff’d per curiam, 623 F.2d 252 (2d Cir. 1980) an “I Love Sodom” skit on Saturday Night Live parodying the "I Love New York" ad campaign was approved.
And then there are the more recent cases Professor Tushnet discusses, including 2 Live Crew, the Leslie Nielson/Demi Moore parody (Leibowitz), Blanch v. Koons, and two of the Barbie cases (Walking Mountain, Pitt). Professor Tushnet argues that "non-sexual transformativeness arguments are noticeably less likely to succeed," and that "Judges see parody more readily when parodists use female bodies to show the uncontrollable multiplicity of interpretation." I don't see the empirical evidence behind those assertions; indeed, at least in the past, as noted above, sexual-themed works have historically been less likely to be held fair use: for example, fair use claims for use of Minnie Mouse and Wonder Woman were rejected. And, it might be noted that in Mattel, Inc. v. Pitt, 229 F. Supp.2d 315 (S.D.N.Y. 2002), involving a very sexualized take-off on Barbie, the parodist was a woman and the judge was a woman.
In supporting her argument, she contrasts two Koons cases from the Second Circuit, the Puppies case (Rogers v. Koons), Blanch v. Koons (Niagra), and a third district court opinion involving the cartoon dog "Odie." The Puppies and Odie cases were pre-2 Live Crew. The point of the alleged parodies in those cases was, as Professor Tuhsnet points out, the alleged banality that Koons sees around him (look within I say). Both courts properly rejected fair use for lack of a transformative effort. The Blanch case did involve a transformative effort and I say this not just as a conclusion: Koons in that case used only part of the original, altered the way the original appeared, and combined it with other compositional elements. That, I believe accounts for the different results, and not the content of the subject matter appropriated. (Nor do I credit in the least his explanation for his works, so that is not a factor in my opinion).
Professor Tushnet's thesis is, I believe, to the contrary, and she may rejoin that my emphasis on a value-free transformative test blinds me to the ways in which sex and gender play a role in the decision making process. As noted above, her thesis deserves more attention than I have given it in this posting, and I intend to study her article in depth before coming to an actual conclusion.