The Jewish blogosphere (and the Huffington Post, too) was lately abuzz over the Maccabeat’s new single, Candlelight (YouTube video, iTunes).
As noted on the Jewish Insights blog, the song is
Based on Taio Cruz’s “Dynamite” and Mike Tompkins’ a cappella version.
That’s for sure – the Maccabeats are certainly indebted to Cruz (YouTube) for the lyrics and melody, and to Tompkins (YouTube) for both the idea of an a capella version as well as the basic concept of their video.
We are not concerned here with assessing the relative (or absolute) artistic merits of any of these three musical productions, but merely with the question of whether the Maccabeats would have a valid fair use defense against a claim of copyright infringement by any of the rights-holders of Cruz’s and Tompkins’s work (assuming that they have not obtained the appropriate permissions). [The same question, of course, applies to other parodies, such as another just released Hanukkah music video, the NCSY / Six13 I Light It, and the Shlock Rock series, including the recently released A Shabbat in Liverpool, comprising “[t]wenty Seven songs from the Beatles set to Shabbat Songs and Prayers”.]
This basic question was at the heart of a controversy of several months ago, when YouTube decided to respect a claim of copyright infringement against Caroline Glick’s (Latma’s) We Con the World, a satire on the Gaza Flotilla raid, and removed the video. She, and her supporters, argued that her parody / satire was covered under the fair use doctrine. Is this so?
While the Supreme Court established, in Campbell v. Acuff-Rose Music, Inc., that even a commercial parody can qualify as fair use, it also made very clear that a claim of parody does not automatically grant a work such status:
This Court has only once before even considered whether parody may be fair use, and that time issued no opinion because of the Court’s equal division. Benny v. Loew’s Inc., 239 F. 2d 532 (CA9 1956), aff’d sub nom. Columbia Broadcasting System, Inc. v. Loew’s Inc., 356 U.S. 43 (1958). Suffice it to say now that parody has an obvious claim to transformative value, as Acuff Rose itself does not deny. Like less ostensibly humorous forms of criticism, it can provide social benefit, by shedding light on an earlier work, and, in the process, creating a new one. We thus line up with the courts that have held that parody, like other comment or criticism, may claim fair use under § 107. See, e. g., Fisher v. Dees, 794 F. 2d 432 (CA9 1986) (“When Sonny Sniffs Glue,” a parody of “When Sunny Gets Blue,” is fair use); Elsmere Music, Inc. v. National Broadcasting Co., 482 F. Supp. 741 (SDNY), aff’d, 623 F. 2d 252 (CA2 1980) (“I Love Sodom,” a “Saturday Night Live” television parody of “I Love New York” is fair use); see also House Report, p. 65; Senate Report, p. 61 (“[U]se in a parody of some of the content of the work parodied” may be fair use).
The germ of parody lies in the definition of the Greek parodeia, quoted in Judge Nelson’s Court of Appeals dissent, as “a song sung alongside another.” 972 F. 2d, at 1440, quoting 7 Encyclopedia Britannica 768 (15th ed. 1975). Modern dictionaries accordingly describe a parody as a “literary or artistic work that imitates the characteristic style of an author or a work for comic effect or ridicule,” [n.12] or as a “composition in prose or verse in which the characteristic turns of thought and phrase in an author or class of authors are imitated in such a way as to make them appear ridiculous.” [n.13] For the purposes of copyright law, the nub of the definitions, and 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. See, e. g., Fisher v. Dees, supra, at 437; MCA, Inc. v. Wilson, 677 F. 2d 180, 185 (CA2 1981). If, on the contrary, the commentary has no critical bearing on the substance or style 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 in borrowing from another’s work diminishes accordingly (if it does not vanish), and other factors, like the extent of its commerciality, loom larger. [n.14] 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. [n.15] See Ibid.; Bisceglia, Parody and Copyright Protection: Turning the Balancing Act Into a Juggling Act, in ASCAP, Copyright Law Symposium, No. 34, p. 25 (1987).
The fact that parody can claim legitimacy for some appropriation does not, of course, tell either parodist or judge much about where to draw the line. Like a book review quoting the copyrighted material criticized, parody may or may not be fair use, and petitioner’s suggestion that any parodic use is presumptively fair has no more justification in law or fact than the equally hopeful claim that any use for news reporting should be presumed fair, see Harper & Row, 471 U. S., at 561. The Act has no hint of an evidentiary preference for parodists over their victims, and no workable presumption for parody could take account of the fact that parody often shades into satire when society is lampooned through its creative artifacts, or that a work may contain both parodic and non parodic elements. Accordingly, parody, like any other use, has to work its way through the relevant factors, and be judged case by case, in light of the ends of the copyright law.
In Suntrust v. Houghton Mifflin, the United States Court of Appeals for the Eleventh Circuit applied the principles of Campbell to a dispute between the owners of Margaret Mitchell’s Gone With the Wind and the publisher of Alice Randall’s The Wind Done Gone:
Houghton Mifflin argues that TWDG is entitled to fair-use protection as a parody of GWTW. In Campbell, the Supreme Court held that parody, although not specifically listed in § 107, is a form of comment and criticism that may constitute a fair use of the copyrighted work being parodied. Id. at 579, 114 S.Ct. at 1171. Parody, which is directed toward a particular literary or artistic work, is distinguishable from satire, which more broadly addresses the institutions and mores of a slice of society. Id. at 580-81, 581 n. 15, 114 S.Ct. at 1172, 1172 n. 15. Thus, “[p]arody needs to mimic an original to make its point, and so has some claim to use the creation of its victim’s … imagination, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing.” Id. at 580-81, 114 S.Ct. at 1172.
The fact that parody by definition must borrow elements from an existing work, however, does not mean that every parody is shielded from a claim of copyright infringement as a fair use. “The [Copyright] Act has no hint of an evidentiary preference for parodists over their victims, and no workable presumption for parody could take account of the fact that parody often shades into satire when society is lampooned through its creative artifacts, or that a work may contain both parodic and nonparodic elements.” Id. at 581, 114 S.Ct. at 1172. Therefore, Houghton Mifflin’s fair-use defense of parody, like any other claim of fair use, must be evaluated in light of the factors set out in § 107 and the constitutional purposes of copyright law. Id., 114 S.Ct. at 1172.
[8] Before considering a claimed fair-use defense based on parody, however, the Supreme Court has required that we ensure that “a parodic character may reasonably be perceived” in the allegedly infringing work. Id. at 582, 114 S.Ct. at 1173. The Supreme Court’s definition of parody in Campbell, however, is somewhat vague. On the one hand, the Court suggests that the aim of parody is “comic effect or ridicule,” but it then proceeds to discuss parody more expansively in terms of its “commentary” on the original. Id. at 580, 114 S.Ct. at 1172. In light of the admonition in Campbell that courts should not judge the quality of the work or the success of the attempted humor in discerning its parodic character, we choose to take the broader view. For purposes of our fair-use analysis, we will treat a work as a parody if its aim is to comment upon or criticize a prior work by appropriating elements *1269 of the original in creating a new artistic, as opposed to scholarly or journalistic, work. [FN23] Under this definition, the parodic character of TWDG is clear. TWDG is not a general commentary upon the Civil- War-era American South, but a specific criticism of and rejoinder to the depiction of slavery and the relationships between blacks and whites in GWTW. The fact that Randall chose to convey her criticisms of GWTW through a work of fiction, which she contends is a more powerful vehicle for her message than a scholarly article, does not, in and of itself, deprive TWDG of fair-use protection. We therefore proceed to an analysis of the four fair-use factors.
FN23. The benefit of our approach to “parody,” which requires no assessment of whether or not a work is humorous, is apparent from the arguments made by the parties in this case. Suntrust quotes Michiko Kakutani’s review of TWDG in the New York Times, in which she states that the work is “decidedly unfunny.” Houghton Mifflin, on the other hand, claims that TWDG is an example of “African-American humor,” which, Houghton Mifflin strongly implies, non-African-American judges are not permitted to evaluate without assistance from “experts.” Under our approach, we may ignore Houghton Mifflin’s questionable argument and simply bypass what would always be a wholly subjective inquiry.
An even more acute analysis of the our basic question appears in another application of Campbell, the United States Court of Appeals for the Ninth Circuit’s decision in Dr. Seuss Enterprises v. Penguin Books:
We must decide whether a poetic account of the O.J. Simpson double murder trial entitled The Cat NOT in the Hat! A Parody by Dr. Juice, presents a sufficient showing of copyright and trademark infringement of the well-known The Cat in the Hat by Dr. Seuss.
Penguin Books USA, Inc. (“Penguin”) and Dove Audio, Inc. (“Dove”) interlocutorily appeal the district court’s preliminary injunction prohibiting the publication and distribution of The Cat NOT in the Hat! A Parody by Dr. Juice, a rhyming summary of highlights from the O.J. Simpson double murder trial, as violating copyrights and trademarks owned by Dr. Seuss Enterprises, L.P. (“Seuss”), particularly from the book The Cat in the Hat.
Seuss, a California limited partnership, owns most of the copyrights and trademarks to the works of the late Theodor S. Geisel, the author and illustrator of the famous children’s educational books written under the pseudonym “Dr. Seuss.” Between 1931 and 1991, Geisel wrote, illustrated and published at least 47 books that resulted in approximately 35 million copies currently in print worldwide. He authored and illustrated the books in simple, rhyming, repetitive language, accompanied by characters that are recognizable by and appealing to children. The characters are often animals with human-like characteristics.
In The Cat in the Hat, first published in 1957, Geisel created a mischievous but well meaning character, the Cat, who continues to be among the most famous and well recognized of the Dr. Seuss creations. The Cat is almost always depicted with his distinctive scrunched and somewhat shabby red and white stove-pipe hat. Seuss owns the common law trademark rights to the words “Dr. Seuss” and “Cat in the Hat,” as well as the character illustration of the Cat’s stove-pipe hat. Seuss also owns the copyright registrations for the books The Cat in the Hat, The Cat in the Hat Comes Back, The Cat in the Hat Beginner Book Dictionary, The Cat in the Hat Songbook, and The Cat’s Quizzer. In addition, Seuss has trademark registrations for the marks currently pending with the United States Trademark Office. Seuss has licensed the Dr. Seuss marks, including The Cat in the Hat character, for use on clothing, in interactive software, and in a theme park.
In 1995, Alan Katz and Chris Wrinn, respectively, wrote and illustrated The Cat NOT in the Hat! satirizing the O.J. Simpson double murder trial. Penguin and Dove, the publishers and distributors, were not licensed or authorized to use any of the works, characters or illustrations owned by Seuss. They also did not seek permission from. Seuss to use these properties. …
The first factor in a fair use inquiry is “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.” While this inquiry does not specify which purpose might render a given use “fair,” the preamble to @ 107 provides an illustrative, though not limitative, listing which includes “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.” Under this factor, the inquiry is whether The Cat NOT in the Hat! merely supersedes the Dr. Seuss creations, or whether and to what extent the new work is “transformative,” i.e., altering The Cat in the Hat with new expression, meaning or message.
Parody is regarded as a form of social and literary criticism, having a socially significant value as free speech under the First Amendment. This court has adopted the “conjure up” test where the parodist is permitted a fair use of a copyrighted work if it takes no more than is necessary to 11recall” or “conjure up” the object of his parody. Accordingly, the critical issue under this factor is whether The Cat NOT in the Hat! is a parody.
We first examine the definition of parody. The parties disagree over the appropriate interpretation of Acuff-Rose’s holding with respect to the definition of parody under the fair use exception. The Supreme Court of the United States in the Acuff-Rose case held that a rap group’s version of Ray Orbison’s song “Oh, Pretty Woman” was a candidate for a parody fair use defense. Justice Souter, the opinion’s author, defined parody:
For the purposes of copyright law, the nub of the definitions, and 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 authors works…. If, on the contrary, the commentary has no critical bearing on the substance or style of the original composition, which the alleged infringe merely uses to get attention or to avoid the drudgery in working up something fresh, the claim to fairness in borrowing from another’s work diminishes accordingly (if it does not vanish), and other factors, like the extent of its commerciality, loom larger.
The Court pointed out the difference between parody (in which the copyrighted work is the target) and satire (in which the copyrighted work is merely a vehicle to poke fun at another target): “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.” As Justice Kennedy put it in his concurrence: “The parody must target the original, and not just its general style, the genre of art to which it belongs, or society as a whole (although if it targets the original, it may target those features as well).”
We now turn our attention to The Cat NOT in the Hat! itself The first two pages present a view of Los Angeles, with particular emphasis on the connection with Brentwood, given the depiction of the news camera lights. The story begins as follows:
A happy town
Inside L.A.
Where rich folks play
The day away.
But under the moon
The 12th of June.
Two victims flail
Assault! Assail!
Somebody will go to jail!
Who will it be?
Oh my! Oh me!
The third page reads: “One Knife? Two Knife? Red Knife Dead Wife. This stanza no doubt mimics the first poem in Dr. Seuss’ One Fish Two Fish Red Fish Blue Fish: “One fish / two fish red fish / blue fish. Black fish / blue fish / old fish / new fish. ” For the next eighteen pages, Katz writes about Simpsons trip to Chicago, the noise outside Kato Kaelin’s room, the bloody glove found by Mark Fuhrman, the Bronco chase, the booking, the hiring of lawyers, the assignment of Judge Ito, the talk show interest, the comment on DNA, and the selection of a jury. On the hiring of lawyers for Simpson, Katz writes:
A plea went out to Rob Shapiro
Can you save the fallen hero?
And Marcia Clark, hooray, hooray
Was called in with a justice play.
A man this famous
Never hires
Lawyers like
Jacoby-Meyers.
When you’re accused of a killing scheme
You need to build a real Dream Team.
Cochran! Cochran!
Doodle-doo
Johnnie, won’t you join the crew?
Cochran! Cochran!
Deedle-dee
The Dream Team needs a victory.
These stanzas and the illustrations simply retell the Simpson tale. Although The Cat NOT in the Hat! does broadly mimic Dr. Seuss’ characteristic style, it does not hold his style up to ridicule. The stanzas have “no critical bearing on the substance or style of’ The Cat in the Hat. Katz and Wrinn merely use the Cat’s stove-pipe hat, the narrator (“Dr. Juice), and the title (The Cat NOT in the Hat!) “to get attention” or maybe even “to avoid the drudgery in working up something fresh.” While Simpson is depicted 13 times in the Cat’s distinctively scrunched and somewhat shabby red and white stove-pipe hat, the substance and content of The Cat in the Hat is not conjured up by the focus on the Brown-Goldman murders or the O.J. Simpson trial. Because there is no effort to create a transformative work with “new expression, meaning, or message,” the infringing works commercial use further cuts against the fair use defense. …
In their Opening Brief, Penguin and Dove characterize The Cat NOT in the Hat! (“Parody”) as follows:
The Parody is a commentary about the events surrounding the Brown/Goldman murders and the O.J. Simpson trial, in the form of a Dr. Seuss parody that transposes the childish style and moral content of the classic works of Dr. Seuss to the world of adult concerns. The Parody’s author felt that, by evoking the world of The Cat in the Hat, he could: (1) comment on the mix of frivolousness and moral gravity that characterized the culture’s reaction to the events surrounding the Brown/Goldman murders, (2) parody the mix of whimsy and moral dilemma created by Seuss works such as The Cat in the Hat in a way that implied that the work was too limited to conceive the possibility of a real trickster “cat” who creates mayhem along with his friends Thing I and Thing 2, and then magically cleans it up at the end, leaving a moral dilemma in his wake.
We completely agree with the district court that Penguin and Dove’s fair use defense is “pure shtick” and that their post-hoc characterization of the work is “completely unconvincing.”
[Here’s an analysis of the decision by a Harvard freshman, agreeing with the decision, and see the comment thread to this Volokh Conspiracy post for various other perspectives, including this sharp criticism of the decision.]
So, Campbell declares that:
For the purposes of copyright law, the nub of the definitions, and 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. …
If, on the contrary, the commentary has no critical bearing on the substance or style 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 in borrowing from another’s work diminishes accordingly (if it does not vanish), and other factors, like the extent of its commerciality, loom larger.
And Dr. Seuss Enterprises clarifies further that:
The Court pointed out the difference between parody (in which the copyrighted work is the target) and satire (in which the copyrighted work is merely a vehicle to poke fun at another target): “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.” As Justice Kennedy put it in his concurrence: “The parody must target the original, and not just its general style, the genre of art to which it belongs, or society as a whole (although if it targets the original, it may target those features as well).” …
These stanzas and the illustrations simply retell the Simpson tale. Although The Cat NOT in the Hat! does broadly mimic Dr. Seuss’ characteristic style, it does not hold his style up to ridicule. The stanzas have “no critical bearing on the substance or style of’ The Cat in the Hat. Katz and Wrinn merely use the Cat’s stove-pipe hat, the narrator (“Dr. Juice), and the title (The Cat NOT in the Hat!) “to get attention” or maybe even “to avoid the drudgery in working up something fresh.” While Simpson is depicted 13 times in the Cat’s distinctively scrunched and somewhat shabby red and white stove-pipe hat, the substance and content of The Cat in the Hat is not conjured up by the focus on the Brown-Goldman murders or the O.J. Simpson trial. Because there is no effort to create a transformative work with “new expression, meaning, or message,” the infringing works commercial use further cuts against the fair use defense. …
In light of the above, it seems likely that the aforementioned musical parodies do not have a legitimate fair use defense. To a claim by any of their composers that he is somehow actually targeting and satirizing the original work, and not merely utilizing it to create popular music of his own, we would respond as the Ninth Circuit did, that such a post-hoc interpretation is “pure shtick”.
Update: David Bernstein has linked to Candlelight at the Volokh Conspiracy, and a commenter does, indeed, raise the question of copyright infringement.
