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.


Eion said...

I'm not at all sure that Air Pirates still stands in light of Campbell v. Acuff-Rose. The court in Air Pirates seemed to be focussing on the amount taken, saying that if you copy too much, the fair use defense is precluded; whereas Acuff-Rose said that the four statutory factors "shall" be considered. That would seem to imply that courts cannot look to one factor alone in ruling on a fair use defence.

The court in Air Pirates also seems to conflate parody and satire (at 758), although clearly the line can become blurred with some works (and some works may be part satire and part parody). "Yiddish with Dick & Jane", however, I would certainly describe as satire (and the Dr. Seuss case was the one that first came to mind in relation to it).

The lack of market harm analysis was covered pretty thoroughly in Acuff-Rose, I believe (although reasonable minds can differ as to what the relevant market is). Based on Acuff-Rose, "Yiddish with Dick & Jane" wins on the market harm factor; Dick & Jane books were generally purchased as children's books, and I suspect that the kind of people who would buy Dick & Jane books for their children would not buy "Yiddish with Dick & Jane" for their children.

In Harpers & Row v. Nation, the crucial factor was that the manuscript was unpublished. This, of course, does not apply to the publishers of Dick & Jane books, and so they've already chosen not to exercise their First Amendment right not to speak. Allowing them to do so now would in effect be giving them moral right of withdrawal (which of course the US does not recognize).

I'll just comment on the previous post while I'm here - sorry to be off-topic.
First: surely if US civil procedure prevented non-citizens from suing each other for infringement in the US, it would be a violation of Berne et al.?
Second: I would really like to hear more of your thoughts on Grokster.

And finishing up (sorry for the long post): great blog! I learned much of what I know of copyright law from your treatise, so it's quite something to be able to hear your thoughts directly.

William Patry said...

Dear Eion: Excellent and careful discussion. My reference to Air Pirates was a factual one; that is, I think that as in Air Pirates, defendant in Dick and Jane are using well-known cultural figures to make a broader, cultural point (and pretty much the same one).That being the case, Acuff-Rose's more restrictive satire approach, rather than parody approach would govern. I agreed in the original posting that there is no harm to the market from Dick and Jane because the markets are different, but what does that mean? As I said, that will almost always be the case with parody/satire: lack of market harm should not by itself result in fair use. BTW, I once bought a house in DC from a guy who had been a law clerk to the judge who wrote Air Pirates; he thought the use was fair, but couldn't convince his judge.
Harper & Row did turn entirely, I think, on the unpublished nature of the work. The last question Justice O'Connor asked at oral argument was whether the analysis would be different if the work was published, and Harper & Row's counsel answered yes. My friend Eugene Volokh disagrees with my successful argument in H&R about a Wooley v. New Hanpshire right (or really interest) authors have to remain silent, but I and H&R were only referring to the limited situation there of an unpublished work. Here's alink to Eugene's article,
As for the civil procedure question, yes, I do think it would violate Berne.

Ampersand said...

I'm not persuaded by your discussion of Wind Done Gone. The claim that the decision was motivated by political correctness seems an ad hominem attack on the judges; the implication is that they made an unsupportable legal decision because they are personally liberal. You also state that the 11th circuit would have come to the opposite decision were the politics of the case reversed but you don't cite any cases or other evidence to support your claim.

It would be more civil, and also more intellectually sound, to argue that decisions you disagree with happen not because the 11th circuit judges are so corrupt that they ignore the law and merely rule each case in favor of whichever side is more "PC," but because it is possible for people of good faith to disagree on the correct outcome of fair use cases.

The primary disagreement between you and the 11th circuit regarding Wind Done Gone seems to be if WDG is genuinely "transformative." To me, to alter an un-self consciously racist work to an over-the-top and rather obvious indictment of racism is self-evidently a significant transformative change. You disagree, but you don't explain the basis for your disagreement.

It goes without saying that you're not obliged to explain any of your opinions. But if you should see fit, I'd welcome a more detailed discussion from you of why you think WDG was incorrectly decided - preferably one that concentrated on substantive legal issues, rather than on dubious allegations of political correctness.

LBandlow said...

Shades of trademark infringement thinking creap into the analysis of "parody" fair uses in copyright law. That is, if courts think there is a liklihood that consumers will think that the vehicle of the "parody" is endorsed, sponsored or affiliated with the person from whom the work was taken, then less likely a fair use. When the work that is doing the taking directly targets the work that is taken from, then consumers are less likely to think there is some sponsorship or affiliation (why would you permit something that is hammering you?). This also ties into the thinking in the law that the less likely it is that you could get a license to do it (i.e., nobody permits their work to get slammed), the more likely it is fair.

Great new site - looking forward to reading it each day.

William Patry said...

Ampersand: Here's my reply. I didn't intend an ad hominem attack on the author of the 11th Circuit's Wind Done Gone opinion. Judge Birch is, in fact, a conservative Republican, and I am the one who is quite liberal. And obviously, I don't think any of the panel are corrupt in any sense. Judge Birch has a very high regard for the rule of law, as witnessed in his quite lengthy and unusual opinion in the Schiavo case criticizing the legislation as unconstitutional.

I do, however, think the decision was motivated by a desire, reflected in other of Judge Birch's opinions (and at length in TWDG), to advance a very particular view of fair use as a proxy for the First Amendment. His views on copyright, shaped by his association with the late Prof. Ray Patterson, are, many copyright lawyers believe, to be fringe and historically wrong: that's not ad hominen; it is analytical and I had debates with Patterson about specifics.

Indeed, Birch's opinion is, I believe, grounded not so much in fair use as the First Amendment. In fact, the vacatur of the distict court was on First Amendment grounds. In Birch's opinion we are told that it is good to "destroy the perspective, judgments, and mythology of GTW," he decries the alleged record evidence that "SunTrust makes a practice of requiring its authors of licensed derivatives to make no references to homosexuality." that sounds fairly political to me.

Considerable evidence of the author's and publisher's shifting representations about the purpose for the book was ignored or played down. the book was not, I believe, described as a parody until the suit was filed.

You are correct that I don't think the book was transformative, and that alone condemns it for me. I may be one of the few who have read it; it stinks, but even that isn't a reason not to find fair use. In my opinion it stinks because the author was incapable of writing even an amateurish work, much less a parody/satire on the exalted level the opinion and favorable commentary have ascribed to it: in my opinion, having read it and not ad hominem, that justification was after the fact, just like the very label parody.

The political correctness label then stems from excusing an atrocious work that wasn't conceived of or capable of being a parody, because we like its attack on racism and it makes us feel like we are liberal folk for doing so. I will add that I am hardly alone in this view: at my panel, staunch supporters of the book agreed that if the tables had been turned, they would have argued against fair use: that's at least candid political correctness.

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