Friday, April 29, 2005

Parody, Political Correctness, and the First Amendment

For Hanukkah, my sister-in-law gave me "Yiddish with Dick and Jane," a book by Ellis Weiner and Barbara Davilman, with illustrations by Gabi Payn. (Here's a link to Little Brown's website offering the book: (Little Brown) There is also a 2 minute and 45 second web audiovisual trailer at: (Vidlit).
The book, based on the well-known children's primers, is stated to be a parody. In the authors' eyes, and that of their publisher, Little Brown & Co., that's the end of the matter. The copyright owner of the original series (quite successfully reprinted in retro versions in 2004), Pearson Education, disagrees, having filed a copyright and trademark infringement suit in January in the Central District of California.
Parody cases are among the most popular of copyright cases raising the fair use defense statutorily recognized in 17 USC 107. Parody cases are also quite popular with journalists, who find in them a vehicle to cast nuanced inquiries into a battle between good and evil, a battle between the evil, humorless copyright owner and the good, funny, creative parodist. This typecasting (and running roughshod over a more complicated matter) is particularly endemic when political correctness rears its ugly head.
Political correctness was at the heart of the Eleventh Circuit's decision in the "Wind Done Gone" case, SunTrust Bank v. Houghton Mifflin, 268 F.3d 1257 (11th Cir. 2001). The excruciatingly bad book at issue there was an unauthorized derivative work of "Gone With the Wind." Defendant copied numerous characters, huge swathes of plot, and the most famous scenes in the first part of defendant's book. When the appropriation from GWTW ceased in the second half of the book, there was, as Gertrude Stein said, about Oakland, California, "No there there." The many disgusting examples of racism in GWTW provided an after-the-fact platform for rationalizing an infringing book that was not conceived of, nor originally marketed as, a parody. Had the defendant's book been a cherished work in the liberal firmament, and the "parody" a right-wing attack, say on gays, such an excessive, non-transformative taking would have been swiftly and sanctimoniously enjoined.

Which brings us to "Yiddish with Dick and Jane." As a Yiddish (and Hebrew) speaker, I thought there might be some use of the original to criticize the original, to build upon the original (ironically, of course). I was quite disappointed. Little Brown's own description states: "Oy vey - a primer like no other! What better (or funnier) language than Yiddish to express those shades of feeling and nuances of meaning that boring English just can't deliver? And who better than our old friends Dick and Jane, and their little sister, Sally, to teach us? The text uses the familiar rhythms of the original "Dick and Jane" primers, along with 40 all-new illustrations, to tell a timeless and classic story that everyone can relate to: what its like to grow up in a perfect world and then come to terms with reality."

That reality is drugs, adultery, and gay sex, and it is portrayed as a good reality. The timeless and classic story is attempting to suppress that reality, hence the ostensible need to use the classic to tell reality. The legal question in "Yiddish with Dick and Jane" is not where you sit on this cultural divide, but whether the particular use of the original copyright series qualifies as a fair use. Contrary to the thrust of news report, there is no parody exemption; that is, merely saying your work is a parody doesn't get you off the hook.

The ground rules in parody cases are fairly well-established, thanks to Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994). An initial question is whether a use is a parody. In Campbell, Justice Souter defined a parody as a "literary or artistic work that imitates the characteristic style of an author or a work for comic effect or ridicule." A satire was defined as a work "in which prevalent follies or vices are assailed with ridicule ... or attacked with irony or derision." The distinction is between making fun of the work itself (parody), or using the book to make fun of something else (satire). The difference is critical: "Parody needs to mimic an original to make its point, and so has some claim to use the creation of its victim's (or collective victims') imagination, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing."

Under these definitions, "Yiddish with Dick and Jane" is a satire: it does not specifically make fun of the original, but uses the original to tell what it describes as an attack on the "timeless and classic" story. Here's where my disappointment set it. I didn't get it. Is the mere use of Yiddish funny? Why? Are Jews are supposed to be inherently funny? Are we supposed to make a connection between the goyim in both the original and in "Yiddish with Dick and Jane" with the use of Yiddish to make fun of the goyim? To me, the case more resembles the Ninth Circuit's Air Pirates case, Walt Disney Prods. v. Air Pirates, 581 F.2d 751 (9th Cir. 1978) than 2 Live Crew, or maybe the "OJ Cat in the Hat" case, Dr. Suess Enters., L.P. v. Penguin Books USA, Inc., 109 F.3d 1394 (9th Cir. 1997).

A second ground rule is that while a parody may take enough of the original to conjure it up (you can't make fun of it otherwise), but you can't make the "best" parody. The space between these poles is where the advocacy and fact-finding comes in.

Another ground rule is that the type of harm that is taken into account in the fourth fair use factor is not reputational harm, but displacement of sales. "Yiddish with Dick and Jane" does not take away sales from the original, and it is hard to see how any parody would, since few copyright owners license parodies. Is this the lack of market harm enough?
The role of the First Amendment is also important. Discussions of First Amendment and copyright tend to be unilateral: users have recourse to it, but why not the copyright owner. In Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985), the Supreme Court, agreeing with a treatise I wrote on fair use, held that authors have a First Amendment right to remain silent. Might not this apply to the copyright owners of "Dick and Jane?" If not, why not?
The discussions to date on the case have been far too simplified. And to win, in court, rather than in the court of public opinion, Little Brown and its authors will have to do more. On the copyright claim, it might very well be the case that no expression was taken: if, as seems to be the case, the authors created their own visual images and text, from a copyright perspective, nothing protectible was taken. As an affirmative defense, fair use would be unnecessary, and the above debate would be rendered moot.

Thursday, April 28, 2005

The Patry Copyright Blog

This is the first posting for what I hope will become a non-ideological place for people interested in copyright to discuss topics of common interest. A few items to set the tone. Here's a short, trenchant opinion issued yesterday by SDNY Judge Miriam Cedarbaum (who knows more than a thing or two about copyright), denying a motion to dismiss for lack of subject matter jurisdiction. The apparent basis for the motion was a belief that two non-citizens cannot bring an infringement action for alleged acts of copyright and trademark infringement that occurred in the United States. While Judge Cedarbaum cites 28 USC 1331, it is not clear to me why she doesn't rely on the specific provision in 28 USC 1338(a). In any event, her rebuke is a good warning to do one's own homework. Here's the opinion in full in Hopeton Overton Browne v. Greensleeves Records, Ltd., 2005 U.S. Dist. LEXIS 7177 (S.D.N.Y. April. 27, 2005).

"This is an action for damages and injunctive relief arising principally under the United States Copyright Act, 17 U.S.C. 101 et seq., and section 43 of the Lanham Act, 15 U.S.C. 1125. Plaintiff settled his claims against defendants Take-Two Interactive Software, Inc. and Rockstar Games, Inc. On the eve of trial, the remaining defendant, Greensleeves Records, Ltd. ("Greensleeves"), moved to dismiss for lack of subject matter jurisdiction.Greensleeves' attorney, Louis S. Ederer, contends that this court is without subject matter jurisdiction to entertain a suit between Browne, a Jamaican national, and Greensleeves, [*2] a United Kingdom corporation. Specifically, Mr. Ederer argues that:
while it is clear that the federal courts cannot entertain a suit between two aliens based upon diversity jurisdiction, it is not entirely clear whether the same rule applies to a case involving rights arising under the U.S. Copyright Act, i.e., where the jurisdictional basis is a federal question. Specifically, Greensleeves could locate no case where a court denied a motion to dismiss an action between two aliens because the jurisdictional basis was a federal question. Accordingly, it is respectfully suggested that the Court examine this issue, and if it believes that [there is no subject matter jurisdiction,] it should dismiss this action..." Defendant's Memorandum of Law at 12.The Judiciary Act of the United States, 28 U.S.C. § 1331, provides as follows: "The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. Every member of the Bar of this Court is expected to read the Judiciary Act before moving to dismiss for lack of subject matter jurisdiction. [*3] Moreover, every member of the Bar of this Court is expected to examine the law conscientiously and not to abdicate that important duty to his client by delegating it to the Court. This frivolous motion is denied."

If I understand the matter, her decision is correct: so long as the alleged infringement occurred in the Untied States and national eligibility exists under Section 104, it matters not at all whether the parties are foreign. Indeed, if the work is of foreign origin, it need not have been registered (although the lack of registration will result in loss of statutory damages and attorney's fees).

Also yesterday, President Bush signed into law the first piece of copyright legislation in the 109th Congress (P.L. 109-9). Here's a link to the GPO's version of the bill (

The Act has four titles. The first is a new criminal provision in 18 USC 2319B for unauthorized recording of motion pictures in theatres. The second is the "Family Movie Act of 2005," a provision amending section 110 of the Copyright Act and inserted on behalf of Utah-based ClearPlay. The provision exempts ClearPlay from liability for selling filters that parents may use to automatically skip over or mute passages deemed offensive. Title III reauthorizes the National Film Preservation Board, thereby permitting the Librarian of Congress to continue to pick his top 25 movies. Title IV makes corrections to Section 108(i) of the Copyright Act to permit libraries to make copies of so-called "orphan works" under certain circumstances.

The legislation is a mixed blessing for the motion picture industry, which badly wanted title I but badly wanted deletion of title II. But that's horse-trading: you ride the one that's leaving the stable, not the one you want. There are also on-going efforts to cobble together a larger legislative effort directed at issues surrounding digital music licensing, with House IP Subcommittee Chairman Lamar Smith beng reported as wanting something before the Supreme Court's Grokster opinion is handed down, presumably in June. That may be difficult given all the interests involved.

After Grokster is handed down (here's a link to the transcript of the oral argument:,) there may be a push by the losing party to recoup its loss legislatively. That may not be so easy though, especially given the anticipated battles in the Senate over judicial nominees and the likelihood of a Supreme Court vacancy which will consume the "Upper Body" for the summer and possibly beyond. At a Copyright Office NY State Bar Association panel on Grokster that I moderated last Thursday, I asked a representative for the content owners what a realistic "victory" would be in Grokster. He replied remand for trial on the "Sony" part of the case. That sounds reasonable as a wish, but even so one cannot rule out language on Sony that might knock out the particular defendants in that case but be helpful to future P2P providers who use the opinion as a roadmap to avoid liability. One also cannot rule out, and some anticipate, an affirmance but with rejection on the Ninth Circuit's clear misreading of Sony.

In any event, it should be a long, interesting summer on the copyright front.

Bill, April 28th