I Was a maid In a Porno Store II

Back in March, I did a post about a suit filed by Carol Burnett over Fox's evocation of her "Charwoman" character on the TV show "Family Guy." The wheels of justice have moved very swiftly indeed, with a June 4th opinion, granting a rare FRCP 12(b)(6) motion to dismiss for failure to state a claim on fair use grounds, Burnett v. Twentieth Century Fox Film Corporation, 2007 WL 1662343 (C.D. Cal. June 4, 2007). For those unfamiliar with the protagonists, here is a brief summary by the court:

Family Guy is a half-hour, animated, comedy television program broadcast on primetime and geared toward an adult audience. The show borrows heavily from popular culture, following the exploits of the Griffin family and friends in the fictional suburb of Quahog, Rhode Island. Family Guy routinely puts cartoon versions of celebrities in awkward, ridiculous, and absurd situations in order to lampoon and parody those public figures and to poke fun at society's general fascination with celebrity and pop culture. On or about April 23, 2006, Fox aired an episode of “Family Guy” entitled “Peterotica.” Near the beginning of the episode, the Griffin family patriarch, Peter Griffin, an “Archie Bunker”-like character, enters a porn shop with his friends. Upon entering, Peter remarks that the porn shop is cleaner than he expected. One of Peter's friends explains that “Carol Burnett works part time as a janitor.” The screen then switches for less than five seconds to an animated figure resembling the “Charwoman” from the Carol Burnett Show, mopping the floor next to seven “blow-up dolls,” a rack of “XXX” movies, and a curtained room with a sign above it reading “Video Booths.” As the “Charwoman” mops, a “slightly altered version of Carol's Theme from The Carol Burnett Show is playing.”
Judge Pregerson's discussion of the first factor and parody is instructive:

In their opposition to the motion to dismiss, plaintiffs argue that Family Guy's use of the Charwoman in the Peterotica episode “does not constitute parody in the strict legal sense” and thus cannot be considered “transformative.” In support of this argument, plaintiffs assert that the target of the Family Guy parody was not the Charwoman character as such, but Carol Burnett herself. In fact, the Family Guy characters explain that the porn shop is clean because “Carol Burnett works part-time as a janitor” and make reference to Carol Burnett's signature ear tug. Plaintiffs point out that the Charwoman never tugged her ear in The Carol Burnett Show; rather, Carol Burnett playing herself tugged at her ear in the closing segment of the show as a salute to her grandmother. Furthermore, plaintiffs assert that the act of placing the Charwoman in the role of a janitor in an erotic store is neither “absurd” nor “transformative” because “one could easily imagine a charwoman cleaning the floor of a porn shop.” Secondarily, plaintiffs argue that a comparison of the Family Guy's Charwoman and Burnett's Charwoman demonstrates that the Family Guy version is virtually a literal copy of Burnett's, which is another indication that the use of the Charwoman is not “sufficiently transformative.” In sum, the crux of plaintiffs' argument is that the target of the “Family Guy's crude joke” appears to be Burnett, her family, and her wholesome image as opposed to the Charwoman. However, as the Supreme Court has pointed out, the correct inquiry is not whether the use of the material constitutes parody in a “strict legal sense.” Rather, the “threshold question when fair use is raised in defense of parody is whether a parodic character may reasonably be perceived” and “[w]hether ... parody is in good taste or bad taste does not and should not matter to fair use.” ... As defendant correctly notes, it is immaterial whether the target of Family Guy's “crude joke” was Burnett, the Carol Burnett Show, the Charwoman, Carol's Theme Music or all four. The eighteen-second clip of the animated figure resembling the “Charwoman,” mopping the floor next to “blow-up dolls,” a rack of “XXX” movies, and “video booths” in a porn shop is clearly designed to “imitate[ ] the characteristic style of an author or a work for comic effort or ridicule,” and is executed in such a manner that “the characteristic turns of thought and phrase or class of authors are imitated in such a way as to make them appear ridiculous.”. Criticism of figures as universally recognized as Carol Burnett “will not always be reasoned or moderate,” and may come in the form of “ ‘vehement, caustic, and sometimes unpleasantly sharp attacks.” ... Here, Family Guy put a cartoon version of Carol Burnett/the Charwoman in an awkward, ridiculous, crude, and absurd situation in order to lampoon and parody her as a public figure. Therefore, the Court finds that a parodic character may reasonably be perceived in the Family Guy's use of the Charwoman because it is a “literary or artistic work that broadly mimics an author's characteristic style and holds it up to ridicule.” ... The episode at issue put a cartoon version of Carol Burnett/the Charwoman in an awkward, ridiculous, crude, and absurd situation in order to lampoon and parody her as a public figure. Accordingly, the Court finds this factor weighs in favor of fair use.

What I find so wholesome in these remarks are their disregard for the parody/satire dichotomy that threatened fair use in the wake of Justice Souter's distinction between the two in Campbell. Some, including I believe Professor Rebecca Tushnet, have cautioned that Justice Souter did not mean to create a binary world - one in which parody has a leg up and satire has an uphill battle - and this decision as well as a few earlier ones are of great help. The court's discussion of the remaining factors is also excellent). Bravo, Judge Pregerson.