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February 15: Parody and "transformative use" II

This week we continue our discussion of transformative use and parody.  We begin with an excerpt from a presentation by Judge Pierre Leval, twenty-five after his seminal article Links to an external site. that strove to organize a primary approach to thinking about fair use through the lens of transformative use.  As he revisits the same discussion, he is able to use Campbell, a parody case, as an anchoring feature.  

 

Read the following edited cases:

 

  • Next we have another case involving the use of an iconic image to sell a major motion picture.  Compare the outcome of Leibovitz with Steinberg v. Columbia Pictures. Even the court in this case acknowledges that the Paramount disparagement or comment upon Leibovitz/Moore is attenuated, yet it still finds the use a parody and noninfringing.  And the use, as the court acknowledges, is substantially commercial. How do we end up with different results in Leibovitz and Steinberg? 

 

  • In Suntrust, the Margaret Mitchell estate is seeking to enjoin the publication of Alice Randall's The Wind Done Gone, a book based on Mitchell's Gone with the Wind.  Approximately the first half of Randall's work makes robust uses of Mitchell's characters, fictional locations, and storyline to comment on Mitchell's story from a different perspective.  Is this a parody?  How does the commercial nature of the use play a role here?  How do we know how much of Mitchell's work Randall is needed to conjure up Mitchell's perspectives on Civil War-/Reconstruction-Era Georgia?  Also, the First Amendment plays a more obtrusive role in this case than some of the other cases--what is the court's point?

 

  • In Lombardo, the court considers whether a play (Who's Holiday!) about the ongoing life and travails of Seuss's character, Cindy-Lou Who, should be enjoined as an infringing work.  The court focuses heavily on the transformative and critical nature of Lombardo's play.  In particular, note the court's explicit relationship between being a parody and being transformative.  Is it possible to have a parody that is not transformative?  Note how the court looks at market substitution in this case.  (If you're interested in getting a sense of the performance style of this play, search youtube.com for "Who's Holiday play".)

 

  • With ComicMix, we are back in the 9th Circuit with another book hoping to use Dr. Seuss in parody. This is the heart of the problem for ComicMix because the 9th Circuit has already staked out a lot of ground in this space in the The Cat NOT in the Hat case.  Do you think that Oh, the Places You'll Boldly Go! is a parody?  What do you think about ComicMix's "mash-up" argument, i.e., mash-ups are transformative by nature and should be noninfringing?  This case takes a look at potential markets Dr. Seuss might exploit, especially because Dr. Seuss has worked with other brands in the past to make products that use copyrighted elements from two brands.  Does this mean that there can be no independent use of this space by third parties like ComicMix?