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February 8: Parody and "transformative use" I

 

     This week and next, we are examining courts' turn to considering the transformativeness of allegedly infringing uses, focusing primarily (though not exclusively) on parodies.  We recommend looking at the accused uses and comparing them with the copied works, and have either included images in the edited versions of the opinions or posted excerpts from or links to the accused works.

 

     In Benny, notice what the court focuses on as its metric for determining whether Autolight infringes.  Would it have mattered if the appellant had been able to establish that its use of Gaslight was a burlesque or parody?  Interestingly, the same district court judge (Carter) came to a different conclusion in a similar case Links to an external site. involving Sid Caesar's spoof From Here to Eternity called From Here to Obscurity, in the same year. 

 

     In Air Pirates, the court invokes the "recall or conjure up" standard; how availing is that metric in the court's analysis? Take note of how the court considers Benny versus an analysis more focused on substituting for the original.  In this case does it even matter whether the court consideres Air Pirates to be a parody?   What do you think of the court's treatment of the defendant's preference for the "first glance" standard?  Why isn't this court delving more deeply into the recently codified §107 analysis?

 

      In Steinberg the defendants center their case on their use being a parody that is authorized by fair use.  How does the court, here, decide what is and what is not a parody?  What do you think of the court's factor analysis, here?  What arguments might you make to strengthen the defendant's case?

 

    Campbell is a transformative case (bad pun) that marks a shift in how many courts consider parody going forward.  What has changed?  The litigants don't really differ in their accounting of the facts, so what is the heart of the issue in this case?  How does the Court lean into or away from bright-line rules in its fair use analysis?  The court, in this case, again asserts that fair use is an affirmative defense--does that make sense to you?

 

     Belmore is not a parody case.  But note just how much of plaintiff's original work is included in defendant's work.  How is it possible for the court to come out as it did?  What kinds of arguments might a parodist borrow from this case when it has used a substantial amount of a plaintiff's work?  Where are many parodists likely not to be able to rely on the arguments and public policy in Belmore?