Fair use is an affirmative defense allowing unauthorized uses of copyrighted material that would otherwise be barred by one or more of a copyright owner's five "exclusive rights" (to copy, adapt, distribute, publicly perform, or display).1 Traditional fair uses include: "criticism, comment, news reporting, teaching...,scholarship or research...."2 For example, fair use permits broadcasters to use film clips during a televised movie review without seeking permission from the studio. It also permits newspapers to use small passages from other publications, such as quoting portions of a presidential candidate's autobiography during a campaign story. However, while typical examples are plentiful, advising a client on whether a use is a fair one often cannot be distilled into a yes or no answer. According to the U.S. Supreme Court in its seminal copyright case, Campbell v. Acuff Rose Music, Inc., fair use "is not to be simplified with bright-line rules, for the statute, like the doctrine it recognizes, calls for case-by-case analysis."3
Overly broad prognostications based on individual court decisions have led to misunderstandings and mischaracterizations about the scope of the doctrine, in part because of the lack of bright-line rules. Rarely has the fair use doctrine been more mischaracterized and misunderstood than in the digital era. For instance, no case law exists to support a broad "right of convenience" that allows the copying of whole works into alternate formats or the sampling of music files from peer-to-peer services--although these types of uses are often treated as fair use in press reports.4 Nevertheless, even without bright-line rules, fair use is generally consistent and predictable. Common sense dictates this is so, given the widespread daily appropriation of copyrighted works and the comparatively limited number of cases or even threats of litigation or objection. In fact, the flexibility of the common law doctrine of fair use--now codified in Section 107 of Title 17 of the U.S. Code--is its strength as well as the reason why this almost 200-year old doctrine has survived all the technological and business changes since its inception.
Popular misconceptions notwithstanding, the greatest direct beneficiaries of fair use are not consumers seeking convenience but copyright creators whose works are ultimately enjoyed by consumers. Rather than being typically passive consumers, users of the fair use doctrine are more likely to be active creators of new copyrighted material that builds upon the existing copyrighted creations of others. As Recording Industry Association of America (RIAA) President Cary Sherman recently noted, "A healthy and robust fair use doctrine is critical to [entertainment companies], since so much of what [they] create is built on the art that came before."5 That notion rightly fits within the constitutional and statutory premise of copyright to promote the creation and dissemination of works. That is also why efforts to scale back fair use have been rebuffed by copyright owners in the guise of users. For example, after a line of early-1990s cases suggested that fair use was nearly per se barred for unpublished works, congressional intervention was sought to right this perceived wrong.6 The change was undertaken at the behest of publishers of biographies, who sought broader access to unpublished letters and other similar materials to produce better and more complete biographical works that would ultimately benefit readers. In fact, examples abound of authors relying on fair use as well as the use of unprotectable ideas for the creation of new works.
In evaluating the legality of new works based on preexisting material, courts have repeatedly wrestled with how to properly balance the exclusive rights of copyright owners against the rights of others to take protectable material by fair use for the creation of unauthorized parodies and satires. Central to the parody and satire fair use defense is the interaction of First Amendment rights (incorporated into the fair use doctrine) to comment on a preexisting work (parody) or to use a preexisting work to make social or political comment (satire) with the monopoly right of the copyright creator to, among other things, create adaptations of his or her work.7 This tension between original and derivative creators is evident in recent cases--most notably, the late-2006 decision of the Second Circuit in Blanch v. Koons.8
The case involved the court-designated "appropriation art" of Jeff Koons, whose works have triggered copyright litigation several times.9 The case-by-case nature of fair use precludes any single decision from providing all the answers to questions about the legality of derivative works. Blanch leaves copyright practitioners as well as artists and distributors of artistic materials with some unresolved issues regarding fair use and the scope of the adaptation right.
History of Fair Use
Fair use began as a common law doctrine more than a century and a half ago. As Justice Story indicated in Folsom v. Marsh (an opinion that is often cited as the first fair use decision), the doctrine was a judicial response to fact patterns raising "intricate and embarrassing questions" that made it difficult "to arrive at any satisfactory conclusion, or to lay down any general principles applicable to all cases."10 For more than 100 years, judges shaped the doctrine without guidance from legislators. This judicial molding created a flexible doctrine that increased copyright law's ability to achieve its constitutional purpose: "to promote the progress of science"11--or, in other words, to spread knowledge--by providing incentives to create and disseminate original works, including those building upon preexisting works, with the techniques of adaptation, comment, and criticism.
In the 1976 Copyright Act, the now venerable common law doctrine of fair use was codified in Section 107. That section contains an explanation of the types of uses (such as "criticism, comment, news reporting, teaching") that Congress intended to address as well as the four nonexhaustive factors that courts must consider when evaluating a fair use defense. The four factors are: 1) the purpose and character of the use, 2) the nature of the copyrighted work used, 3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and 4) the effect of the use upon the potential market for or value of the copyrighted work.
Commentators, practitioners, and judges (including Supreme Court justices) have struggled with the parameters of these factors and the fair use doctrine generally, just as they did before the 1976 codification. Courts and practitioners are reliant on standards regarding the four factors that have varied with time and changing technological, economic, and public policy circumstances. To illustrate the enigmatic nature of fair use, copyright treatise author and professor Melville Nimmer included a drawing in his treatise of a tired traveler who, upon reaching a mountain's summit to speak to a sage, asked with his last breath, "What is ‘fair use'?"12
In one notable reassessment, the Supreme Court, after finding in its 1985 decision in Harper & Row Publishers, Inc. v. Nation Enterprises that the fourth statutory factor reigned supreme, decided in 1994 in Campbell v. Acuff Rose Music, Inc. that, at least in theory, potential market impact should be weighed evenly with the other three factors.13 But while the fourth factor has, to some degree, fallen in importance, the first factor has ascended in attention if not weight.
This treatment of the first factor was spurred by Judge Pierre Leval, currently sitting on the U.S. Court of Appeals for the Second Circuit. In an influential and oft-cited Harvard Law Review article in 1990,14 Judge Leval coined the term "transformative" to describe expressive but unauthorized new uses of copyrighted material that involve the creation of commentary or criticism of an original work. In Judge Leval's analysis, the more the derivative user transforms the original work, the more likely the first factor--and ultimately the other factors as well--will weigh in favor of a fair use. Judge Leval argued that derivative users, by transforming original works, are investing their energy and creativity, and this should be encouraged and viewed as a fair use--especially to the extent that the use is unlikely to interfere with the legitimate interests of copyright owners. As Judge Leval noted, some prior cases had "failed to recognized the need for quotation as a tool of accurate historical method."15 Although in his article Judge Leval was mainly concerned with the taking of textual materials for use in biographical works, his arguments apply for the direct appropriation of all preexisting materials.
In 1994, the Supreme Court adopted Judge Leval's term and applied it to a parody of Roy Orbison's rock ballad "Pretty Woman" by the Florida-based rap group 2 Live Crew in Campbell.16 2 Live Crew was well known at the time for pushing the limits of good taste, and as critics sought to censor the group's works, its notoriety increased.17 2 Live Crew's version of "Pretty Woman" was crass and, to many, offensive and unfunny, but that was beside the point legally and commercially. Campbell was not about whether 2 Live Crew's parody of "Pretty Woman" was obscene or indecent but whether 2 Live Crew infringed Orbison's original song.
The fact that 2 Live Crew copied and adapted Orbison's copyrighted expression without permission was clear, but the Court concluded that 2 Live Crew's parody qualified as a fair use. In reaching this result, the Court relied heavily on its determination that the parody was transformative. Writing for the majority, Justice Souter held that "the central purpose" of the first statutory fair use factor in a case such as Campbell is to determine "whether the new work merely ‘supersede[s] the objects' of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is ‘transformative.'"18 Justice Souter stated that transformative works are "at the heart of the fair use doctrine's guarantee of breathing space within the confines of copyright" because "the goal of copyright...is generally furthered by the creation of transformative works."19
However, the Court did not hold that all transformative works are fair uses of copyrighted material or that all fair uses must involve the creation of a transformative work. To illustrate the former, Justice Souter contrasted the use of copyrighted material in a parody, such as 2 Live Crew's, with satires incorporating copyrighted content. The Court stated that "the heart of any parodist's claim to quote from existing material, is the use of some elements of a prior author's composition to create a new one that, at least in part, comments on that author's works."20 But the Court cautioned that if "the commentary has no critical bearing on the substance of the original composition, which the alleged infringer merely uses to get attention or to avoid the drudgery in working up something fresh, the claim to fairness diminishes accordingly (if it does not vanish), and other factors...loom larger."21
The Supreme Court drew a critical distinction between parody and satire: "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 victim's) imagination, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing."22 So it is easier, although by no means certain, to justify copying for a parody rather than satire.23 A parody that mimics an original and takes from that original only what is necessary to make its point--the third factor--can meet the defense burden for proving fair use, but a satire has a more difficult threshold to overcome. When a derivative author uses an original author's expression to criticize, assail, or ridicule a societal "folly or vice" and grabs an audience's attention with the preexisting work, the result is a use that is less transformative and less easily justified as a fair use. In 2 Live Crew's case, the Court found the group's "Pretty Woman" to be a parody rather than a satire because "2 Live Crew juxtapose[d] the romantic musings of a man whose fantasy comes true, with degrading taunts, a bawdy demand for sex, and a sigh of relief from paternal responsibility."24 The distinction between parodies and satires is important because both abut a copyright owner's right to create or authorize others to create derivations of original works.25 Creating and licensing derivative works are vitally important to copyright creators and owners, including book publishers, filmmakers and theatrical producers, the recording industry, graphic and visual artists, and myriad Internet content creators and users. Recognition of the adaptation right is critical in Hollywood. Studios that adapt underlying material--such as novels, plays, short stories, or memoirs--pay for the right to do so, but they also need to be able to take other preexisting material--such as text, art work, or song--and recast it in a new artistic light as parody, satire, or other social comment.
By clarifying that some transformative works, including some satires, infringe the adaptation right, the Court attempted to preserve the vitality of the U.S. copyright system while also freeing artists and the creative industries that support them to comment, criticize, and build upon the works of others. To a large extent, the Court was successful. Nevertheless, there have been controversial decisions in Campbell's wake.
For example, the U.S. Court of Appeals for the Second Circuit held that a movie poster for Naked Gun 331/3: The Final Insult was a fair use parody of the famous 1991 cover photo from Vanity Fair magazine by Annie Leibovitz of actor Demi Moore as a nude expectant mother.26 Paramount Pictures used a model other than Moore to recreate the photo, superimposed comic actor Leslie Nielsen's mischievously grinning face over the model's, and inserted the caption "Due this March" at the bottom of the poster to promote its film. The court reasoned that "[b]ecause the smirking face of Nielsen contrasts so strikingly with the serious expression on the face of Moore, the ad may reasonably be perceived as commenting on the seriousness, even the pretentiousness, of the original."27 This was so regardless of whether commentary, rather than publicity for the upcoming film, was the central purpose of the transformative use of the original photo.
In another case exploring transformative use, the U.S. Court of Appeals for the Eleventh Circuit considered whether the novel The Wind Done Gone by Alice Randall was a parody of Margaret Mitchell's Gone with the Wind.28 As Randall's publisher, Houghton Mifflin, argues on its Web site:
Randall wrote her book to comment critically on a novel that she feels has harmed generations of African Americans....The goal of parody is to comment critically and to expose and explode the flaws of the original. The goal of a sequel, by contrast, is to continue a story, generally using the principal characters, style, tone, and themes of the original; a sequel might take a slightly different point of view, but it would not overturn or ridicule the basic assumptions of the original. Think of it as the difference between revolution and evolution.29
The court agreed, holding that the novel was a fair use, and stating that "Randall's literary goal is to explode [Gone With the Wind]'s romantic, idealized portrait of the...South during and after the Civil War."30
However, while the Campbell standard for parodies has proven efficient--even if its application has been criticized in some instances--more attention has been directed at its standard regarding satires. A Ninth Circuit case, Dr. Seuss Enterprises v. Penguin Books USA, Inc., focused on the defendant's satirical book, The Cat Not in the Hat! A Parody by Dr. Juice, about the O.J. Simpson murder trial. The book consisted of rhymes reminiscent of those written by Seuss. The Ninth Circuit held that "no effort to create a transformative work with new expression, meaning or message" existed.31 The court applied the parody/satire distinction rigidly by implying that satires cannot qualify as transformative uses. This narrow reading of the transformative standard led some, such as Ninth Circuit Judge Alex Kozinski, to question whether fair use is the best mechanism for handling this type of close case.32
The Potential Impact of Blanch
Another close case was the more recent Second Circuit decision in Blanch.33 A fashion photographer, Andrea Blanch, took a photograph of a model wearing Gucci sandals. The photograph first appeared in Allure magazine. Without permission, the photograph was cut from the magazine, digitally altered, and recast and incorporated into a painting by Jeff Koons that he titled Niagra. Koons, well known as an appropriation artist, had already lost three prior copyright infringement cases involving sculptures that incorporated preexisting copyrighted material--including Odie, the dog from the Garfield comic strip.34
As in his prior cases, Koons asserted a fair use defense. Koons testified that he intended his painting, which depicted fashion models' lower legs and feet dangling over Niagra Falls and assorted junk foods, to "comment on the ways in which some of our most basic appetites--for food, play, and sex--are mediated by popular images."35 In addition, he hoped that "[b]y recontextualizing these fragments...[he could] compel the viewer to break out of the conventional way of experiencing a particular appetite as mediated by mass media." Moreover, Koons explained that he chose Blanch's photograph in particular because he found it "typical" of the type of images of women's legs "in our consumer culture."36
In affirming the lower court's ruling, the Second Circuit found that Koons's use of the photograph was transformative as a satire, not a parody. However, rather than treating the parody/satire distinction as dispositive, the court stated, "The question is whether Koons had a genuine creative rationale for borrowing Blanch's image, rather than using it ‘merely to get attention or avoid the drudgery in working up something fresh.'"37
The court saw such a rationale: "Koons' use of a slick fashion photograph enables him to satirize life as it appears when seen through the prism of slick fashion photography."38 Because Koons's use of Blanch's photograph "advanced his artistic purpose," the Second Circuit found that it was justified under the first factor, and, upon weighing the other factors, it ultimately constituted a fair use.39
Blanch could have a broad impact on artists and the entertainment industry. One question raised by the case is whether the line of demarcation between satire and parody has, or will be, eroded by this ruling and any others that follow the always-influential Second Circuit's fair use treatment. If courts are willing to more liberally sanction the unauthorized use of copyrighted material in satires as well as parodies, and the only threshold that must be met--at least for the first factor--is a justification of the work as social commentary, the realm of content that may be distributed free of liability increases significantly. This is not to suggest that the first factor is considered in a vacuum: The others can swing the balance against a fair use. But given the recent surge in the importance of the first factor, it seems clear that the more this test is eased, the more the pendulum swings toward finding more uses to be fair--and the narrower the scope of the adaptation right becomes.
What parodies such as the Naked Gun poster and The Wind Done Gone have in common is that copyright owners are very unlikely to license such uses. Thus their commentaries on the original works make it easier for courts to declare the parodies fair on social policy grounds. As Judge Richard Posner has argued, "There is an obstruction when the parodied work is a target of the parodist's criticism, for it may be in the private interest of the copyright owner, but not in the social interest, to suppress criticism of the work."40
Satires, on the other hand, may constitute potential licensing opportunities. While some copyright owners may refuse to license the use of their works to ridicule the O.J. Simpson trial, others may be perfectly willing to do so. Should the adaptation right protect a rights holder's ability to approve or disapprove a satirical work?
One commentator recently remarked that "[f]air use is, fundamentally, a balancing of interests. All interests."41 Future courts will determine how the Blanch opinion affects the balance between legal but unauthorized uses of copyrighted materials and the derivative right of authors. But perhaps Judge Leval said it best: "Fair use is not a grudgingly tolerated exception to the copyright owner's rights of private property, but a fundamental policy of the copyright law."42
Popular debate often suggests that appropriation artists, including those working in traditional and new media formats, are in one corner, and original rights holders defending their right to adapt their own works are in the other corner. What is clear, however, is that these are not necessarily mutually exclusive parties. Copyright creators of all stripes are also adaptors of, and commentators on, the works of others. Indeed, some appropriation artists of today will be the rights holders of tomorrow, braying at the thought of their works being further appropriated and derived in unauthorized and ill-conceived ways.
1 17 U.S.C. §106.
2 17 U.S.C. §107.
3 Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577 (1994). See Joseph von Sauers, Fair Is Fair, Los Angeles Lawyer, Apr. 1997, at 37.
4 BMG Music v. Gonzalez, 430 F. 3d 888, 889-90 (7th Cir. 2006) (holding peer-to-peer file sharing via the Kazaa network to be unfair).
5 Cary Sherman, The Farce behind "Digital Freedom" (Nov. 13, 2006), at http://news.com.com/2010-1025 -6134620.html.
6 See Salinger v. Random House, Inc., 811 F. 2d 90 (2d Cir. 1987); New Era Publ'ns Int'l v. Henry Holt & Co., 873 F. 2d 576 (2d Cir. 1989); Floyd Abrams, First Amendment and Copyright: The Seventeenth Annual Donald C. Brace Memorial Lecture, 35 J. Copyright Soc'y 1 (1987); Judge Roger Miner, Exploiting Stolen Text, 37 J. Copyright Soc'y 12 (1989); Judge James Oakes, Copyrights and Copyremedies: Unfair Use and Injunctions, 18 Hofstra L. Rev. 987 (1990); Judge Jon Newman, Not the End of History, 37 J. Copyright Soc'y 12, 15 (1990); Pub. L. No. 102-492 (1992).
7 See Eldred v. Ashcroft, 537 U.S. 186, 219-20 (2003) (noting unprotectability of ideas and fair use as two of the copyright law's "built-in First Amendment accommodations"); see also 17 U.S.C. §106(2).
8 Blanch v. Koons, No. 05-6433-cv, 2006 U.S. App. LEXIS 26786 (2d Cir. Oct. 26, 2006).
9 See Rogers v. Koons, 960 F. 2d 301 (2d Cir. 1992), cert. denied, 506 U.S. 934 (1992) (Koons sculpture appropriating Art Rogers photograph of puppies deemed unfair); Campbell v. Koons, No. 91 Civ. 6055, 1993 U.S. Dist. LEXIS 3957 (S.D. N.Y. Apr. 1, 1993) (Koons appropriation of photograph titled Boys with Pig deemed unfair); United Feature Syndicate v. Koons, 817 F. Supp. 370 (S.D. N.Y. 1993) (Koons appropriation of Garfield comic strip character Odie deemed unfair).
10 Folsom v. Marsh, 9 F. Cas. 342 (C.C.D. Mass. 1841).
11 U.S. Const. art. 1, §8, ¶8.
12 Lloyd L. Weinreb, Donald C. Brace Memorial Lecture on Fair Use, 67 Fordham L. Rev. 1291, 1292 (1999).
13 Compare Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539 (1985), with Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994). See also Castle Rock Entm't Inc. v. Carol Publ'g Group, Inc., 150 F. 3d 132, 145 (1998) (explaining the change).
14 Judge Pierre Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105 (1990).
15 Id. at 1112.
16 Campbell, 510 U.S. at 579.
17 Jon Pareles, Parody, Not Smut, Has Rappers in Court, N.Y. Times, Nov. 13, 1993.
18 Campbell, 510 U.S. at 579.
20 Id. at 580.
22 Id. at 580-81.
23 See Rogers v. Koons, 960 F. 2d 301, 310 (2d Cir. 1992), cert. denied, 506 U.S. 934 (1992) (concluding that in a parody "the copied work must be, at least in part, an object of the parody"); see also Campbell, 510 U.S. at 581 n.15 ("Satire has been defined as a work ‘in which prevalent follies or vices are assailed with ridicule,' 14 Oxford English Dictionary,…at 500, or are ‘attacked through irony, derision, or wit,' American Heritage Dictionary…at 1604.").
24 Campbell, 510 U.S. at 584.
25 17 U.S.C. §106(2).
26 Leibovitz v. Paramount Pictures Corp., 137 F. 3d 109, 114 (2d Cir. 1998).
28 SunTrust Bank v. Houghton Mifflin Co., 268 F. 3d 1257 (11th Cir. 2001).
29 The Wind Done Gone: Questions and Answers about this dispute, at http://www.houghtonmifflinbooks .com/features/randall_url/qandas.shtml.
30 SunTrust Bank, 268 F. 3d at 1270.
31 Dr. Seuss Enters. v. Penguin Books USA, Inc., 109 F. 3d 1394 (9th Cir. 1997).
32 Judge Alex Kozinski & Christopher Newman, What's So Fair about Fair Use?, 46 J. Copyright Soc'y U.S.A. 513 (1999); Carey Lening, Ninth Circuit Judge Would ‘Dump' Fair Use, Injunctive Relief for Derivative Works, 72 Pat. Trademark & Copyright J. (BNA) 643 (2006).
33 Blanch v. Koons, No. 05-66433-cv, 2006 U.S. App. LEXIS 26786 (2d Cir. Oct. 26, 2006).
34 United Feature Syndicate v. Koons, 817 F. Supp. 370 (S.D. N.Y. 1993).
35 Blanch, 2006 U.S. App. LEXIS 26786, at *6.
37 Id. at *29.
39 Id. at *30.
40 Judge Richard Posner, When Is Parody Fair Use?, 21 J. Legal Studies 67, 73 (1992).
41 Sherman, supra note 5.
42 Leval, supra note 14, at 1134.