[NEohioPAL] Legally Obtaining Rights to Music for Your Film Installment #5 –Fair Use and the Parody Defense, by Mary Ellen Tomazic

[Mary Ellen Tomazic]

        The concept of “fair use” of copyrighted material has been the most
mythologized of all in copyright law. It comes up in almost every discussion
of copyright, with people asking whether they can use `only a small amount’
of a musical piece and get away with paying no fees, or claiming they have
changed it to make its use non-actionable. Neither of these notions is true.
The federal copyright law does provide for a limitation on exclusive rights
for certain narrowly defined purposes, and the statute and case law sets out
the factors that courts use to decide whether a use is infringing. 17 U.S.C.
§ 107 lists these factors as

(1) the purpose and character of the use, including whether such use is of


     a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(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.[1]<file:///C:/Users/Maryellen/Documents/Indieclub%20article%20%235%20-%20Fair%20Use%20and%20the%20Parody%20Defense.docx#_ftn1>

The law then sets out a caveat to these factors in the same section:

            The fact that a work is unpublished shall not itself bar a
finding of fair

            use if such finding is made upon consideration of all the above
factors.[2]<file:///C:/Users/Maryellen/Documents/Indieclub%20article%20%235%20-%20Fair%20Use%20and%20the%20Parody%20Defense.docx#_ftn2>



        Section 107 details the uses that are considered in a determination
of fair use, including “… purposes such as criticism, comment, news
reporting, teaching (including multiple copies for classroom use),
scholarship, or research, is not an infringement of
copyright.”[3]<file:///C:/Users/Maryellen/Documents/Indieclub%20article%20%235%20-%20Fair%20Use%20and%20the%20Parody%20Defense.docx#_ftn3>
Courts
have focused on the factors of the commercial or non-commercial nature of
the work, and the amount and substantiality of the portion used *in relation
to the copyrighted work as a whole*. Although the stated purpose of the
Copyright law is to “… promote the progress of science and the useful arts”
and courts have put forth the notion that the arts are “better served by
allowing the use rather than preventing it”, courts have been diligent in
protecting artists’ rights in their copyrighted material. A finding of a
fair use defense can come if the use is found to be `transformative’, or
different from the original use.

        The landmark U.S. Supreme Court case on fair use and parody is
Campbell v Acuff-Rose Music, Inc., also known as the `Two Live Crew case’.
[4]<file:///C:/Users/Maryellen/Documents/Indieclub%20article%20%235%20-%20Fair%20Use%20and%20the%20Parody%20Defense.docx#_ftn4>The
court was called upon to decide whether 2 Live Crew’s parody of Roy
Orbison’s 1964 song “Oh, Pretty Woman” may be a fair use within the meaning
of the Copyright Act of 1976, 17 U.S.C. § 107. The band’s management
informed Acuff-Rose that they had written a parody of the song and would
afford all credit for ownership and authorship to Acuff-Rose, Roy Orbison
and William Dees, who wrote the original tune, and were willing to pay a fee
for the use they wished to make of it. Acuff-Rose’s agent refused
permission, but 2 Live Crew nonetheless released records, cassette tapes and
compact discs of the parody song on their 1989 album “As Clean As They Wanna
Be.” Almost a year later, after nearly a quarter of a million copies of the
recording had been sold, Acuff-Rose sued 2 Live Crew and its record company,
Luke Skyywalker Records, for copyright
infringement.[5]<file:///C:/Users/Maryellen/Documents/Indieclub%20article%20%235%20-%20Fair%20Use%20and%20the%20Parody%20Defense.docx#_ftn5>The
case held that parody, like other comment and criticism, may claim
fair
use. The Court then set out several standards for a parody to be able to
claim the fair use defense. In reversing the Court of Appeals, the Court
ruled that “a work’s commercial nature is only one element of the first
factor enquiry into its purpose and character”, and is not a hard
evidentiary presumption.[6]<file:///C:/Users/Maryellen/Documents/Indieclub%20article%20%235%20-%20Fair%20Use%20and%20the%20Parody%20Defense.docx#_ftn6>The
court stated that the fair use doctrine permits and requires courts to
avoid rigid application of the copyright statute when, on occasion, it would
stifle the very creativity which that law is designed to
foster.”[7]<file:///C:/Users/Maryellen/Documents/Indieclub%20article%20%235%20-%20Fair%20Use%20and%20the%20Parody%20Defense.docx#_ftn7>The
Court went on to say that “although … transformative use is not
absolutely necessary for a finding of fair use, the goal of copyright to
promote science and the arts, is generally furthered by the creation of
transformative works. The more transformative the new work, the less will be
the significance of other factors, like commercialism, that may weigh
against a finding of fair
use.”[8]<file:///C:/Users/Maryellen/Documents/Indieclub%20article%20%235%20-%20Fair%20Use%20and%20the%20Parody%20Defense.docx#_ftn8>The
Court said that the crucial requirement of a parody is that it
comments
upon or criticizes the prior work, and in doing so creates a new and
different work. If the commentary has no bearing on the substance or style
of the original composition, but merely is used to get attention or avoid
the drudgery in working up something fresh, the claim to fairness in
borrowing from another’s work diminishes or may even be taken away entirely.
The District Court came to the same conclusion as the Supreme Court, saying
that the 2 Live Crew song was “clearly intended to ridicule the whitebread
original” and “reminds us that sexual congress with nameless streetwalkers
is not necessarily the stuff of romance and is not necessarily without its
consequences.”[9]<file:///C:/Users/Maryellen/Documents/Indieclub%20article%20%235%20-%20Fair%20Use%20and%20the%20Parody%20Defense.docx#_ftn9>The
Court also stated that under the fourth fair use factor, harm to the
potential market for or value of the copyrighted
work[10]<file:///C:/Users/Maryellen/Documents/Indieclub%20article%20%235%20-%20Fair%20Use%20and%20the%20Parody%20Defense.docx#_ftn10>,
the 2 Live Crew parody version of “Oh Pretty Woman” would not harm the
market for derivative works of the original composition, as the proper focus
of enquiry is the market for rap music, and the plaintiffs had not presented
any evidence that the rap music market was harmed by 2 Live Crew’s parody
rap version. The amount of material taken by the group was found to be only
enough to “conjure up” the original, and that 2 Live Crew, after copying the
original’s first line of lyrics and the opening bass riff, thereafter
departed markedly from the original and produced otherwise distinctive
music. The copying was not excessive in relation to the song’s parodic
purpose.[11]<file:///C:/Users/Maryellen/Documents/Indieclub%20article%20%235%20-%20Fair%20Use%20and%20the%20Parody%20Defense.docx#_ftn11>

        A finding of fair use with a parody is subject to interpretation by
the fact finder, and judges determine fair use defenses on a case-by-case
basis. Other cases have unpredictably accepted and rejected the fair use
defense for parodies, with some well known examples in movies and books. The
theater poster for the movie “Naked Gun 33 1/3” depicted a photo of a
pregnant woman’s body with the face of Leslie Nielsen’s head superimposed on
it. The picture was designed to replicate identically the famous photo of
Demi Moore that was taken by Annie Leibovitz and appeared on the cover of
“Vanity Fair” magazine. Ms. Leibovitz sued Paramount Pictures for copyright
infringement[12]<file:///C:/Users/Maryellen/Documents/Indieclub%20article%20%235%20-%20Fair%20Use%20and%20the%20Parody%20Defense.docx#_ftn12>and
lost, with the court finding that the advertisement was transformative
because of the stark contrast between the serious Demi Moore and the
smirking Leslie Nielsen. After acknowledging that it was a close question
whether the advertisement commented on the original, the court ruled that
the ad could reasonably be perceived as commenting, through ridicule, on
“the seriousness, even the pretentiousness”, of the original and therefore
did constitute fair
use.[13]<file:///C:/Users/Maryellen/Documents/Indieclub%20article%20%235%20-%20Fair%20Use%20and%20the%20Parody%20Defense.docx#_ftn13>In
another case where the same analytical framework was applied, the
result
was the opposite from the *Leibovitz* case. Dr. Seuss Enterprises, L.P. v.
Penguin Books USA
Inc.[14]<file:///C:/Users/Maryellen/Documents/Indieclub%20article%20%235%20-%20Fair%20Use%20and%20the%20Parody%20Defense.docx#_ftn14>,
involved an illustrated book about O.J. Simpson’s double murder trial titled
“The Cat Not in the Hat! A Parody by Dr. Juice” which employed Dr.Seuss’s
familiar poetic meter and language as well as the Cat in the Hat character
images. The U.S. Court of Appeals for the Ninth Circuit ruled that the work
did not hold the original book up to ridicule, or otherwise comment upon it,
but merely used Dr. Seuss’s copyrighted material in its retelling of the
Simpson murder highlights to “get attention” and “avoid the drudgery in
working up something
fresh.”[15]<file:///C:/Users/Maryellen/Documents/Indieclub%20article%20%235%20-%20Fair%20Use%20and%20the%20Parody%20Defense.docx#_ftn15>It
is easy to imagine the Ninth Circuit panel that decided Dr. Seuss
rejecting the fair use rationale offered in *Leibovitz*, viewing the use of
the famous copyrighted image as being simply “to get attention” while
“avoid[ing] the drudgery of working up something
fresh.”[16]<file:///C:/Users/Maryellen/Documents/Indieclub%20article%20%235%20-%20Fair%20Use%20and%20the%20Parody%20Defense.docx#_ftn16>


         A case that revolved around the `*de minimis*’ argument, claiming
that a sample of a musical composition in a film was so small that it was
not actionable by the copyright holder, was Bridgeport Music, Inc. v.
Dimension Films.[17]<file:///C:/Users/Maryellen/Documents/Indieclub%20article%20%235%20-%20Fair%20Use%20and%20the%20Parody%20Defense.docx#_ftn17>In
this case, a sample from, the composition and sound recording “Get Off
Your Ass and Jam” by George Clinton Jr. and Funkadelic was used in the rap
song “100 Miles and Runnin” which was included in the soundtrack of the
movie *I Got the Hook Up. *The movie company used a two second sample from
the guitar solo and `looped’ and extended it to 16 beats, lasting
approximately 7 seconds. The sample appeared in the “100 Miles” sound
recording in five places. The district court’s discussion centered on a very
detailed description of the chord and how it was played, and stated that the
clip was entitled to copyright protection. The music company’s argument
centered around the claim that no substantial similarity or *de
minimis*inquiry should be undertaken at all when the defendant has not
disputed that
it digitally sampled a copyrighted sound recording. The appeals court agreed
and found for the music company. The court acknowledged that technological
advances have made instances of sampling extremely common and have spawned a
plethora of copyright disputes and litigation. The court then cited ease of
enforcement of copyrighted sampling, saying “Get a license or do not sample.
We do not see this as stifling creativity in any significant way” while
noting that sampling is never
accidental.[18]<file:///C:/Users/Maryellen/Documents/Indieclub%20article%20%235%20-%20Fair%20Use%20and%20the%20Parody%20Defense.docx#_ftn18>The
court also noted that many artists and record companies planning to
use
samples have sought licenses as a matter of
course.[19]<file:///C:/Users/Maryellen/Documents/Indieclub%20article%20%235%20-%20Fair%20Use%20and%20the%20Parody%20Defense.docx#_ftn19>The
court then set forth a new rule that a sound recording owner has the
exclusive right to `sample’ his own
recording.[20]<file:///C:/Users/Maryellen/Documents/Indieclub%20article%20%235%20-%20Fair%20Use%20and%20the%20Parody%20Defense.docx#_ftn20>Thus,
even the smallest piece of copyrighted music must be cleared with the
copyright owner before it is used in a film. Although the court did not
address the parties’ fair use argument, the decision turns on one of the
factors in the fair use determination, the amount and substantiality of the
portion used.

       Another recent case that concerns a fair use of music argument is
Lennon v. Premise Media
Corp.[21]<file:///C:/Users/Maryellen/Documents/Indieclub%20article%20%235%20-%20Fair%20Use%20and%20the%20Parody%20Defense.docx#_ftn21>which
was a documentary film about the theory of intelligent design. A
fifteen second excerpt from John Lennon’s “Imagine” was used (“Nothing to
kill or die for – and no religion too”), an hour and a half into the movie,
during a discussion of religion with the narrator, Ben Stein. Yoko One and
Sean Lennon brought suit to block the use of the clip in the film “Expelled:
No Intelligence Allowed”. The clip was not used in the trailer, marketing or
in other advertising. The use was found `transformative’ because the movie
incorporated the excerpt for purposes of criticism a commentary, and there
was no evidence that it would usurp the market for licensing of the original
song.[22]<file:///C:/Users/Maryellen/Documents/Indieclub%20article%20%235%20-%20Fair%20Use%20and%20the%20Parody%20Defense.docx#_ftn22>Although
the excerpt represented a substantial and memorable part of the
original work, and was instantly recognizable, the use was found not
unreasonable. The court held that allowing the defendant’s use of the clip
would better serve the copyright law’s goal of promoting the progress of
science and the useful
arts.[23]<file:///C:/Users/Maryellen/Documents/Indieclub%20article%20%235%20-%20Fair%20Use%20and%20the%20Parody%20Defense.docx#_ftn23>

       Filmmakers are better off heeding the court’s admonishment in the
Bridgeport case to always get a license for music used in a film. The fair
use defense, even with a documentary, is usually a tough argument to make,
and is best avoided by making sure all the rights in your film are properly
cleared.





Mary Ellen Tomazic is an attorney in Cleveland specializing in entertainment
issue such as copyright, trademarks, contracts and licenses for musical
groups and filmmakers.


------------------------------

[1]<file:///C:/Users/Maryellen/Documents/Indieclub%20article%20%235%20-%20Fair%20Use%20and%20the%20Parody%20Defense.docx#_ftnref1>17
U.S.C. § 107 (2005).

[2]<file:///C:/Users/Maryellen/Documents/Indieclub%20article%20%235%20-%20Fair%20Use%20and%20the%20Parody%20Defense.docx#_ftnref2>Id.

[3]<file:///C:/Users/Maryellen/Documents/Indieclub%20article%20%235%20-%20Fair%20Use%20and%20the%20Parody%20Defense.docx#_ftnref3>Id.

[4]<file:///C:/Users/Maryellen/Documents/Indieclub%20article%20%235%20-%20Fair%20Use%20and%20the%20Parody%20Defense.docx#_ftnref4>510
U.S. 569, 114 S.Ct. 1164 (1994).

[5]<file:///C:/Users/Maryellen/Documents/Indieclub%20article%20%235%20-%20Fair%20Use%20and%20the%20Parody%20Defense.docx#_ftnref5>
*Campbell*, at 572.

[6]<file:///C:/Users/Maryellen/Documents/Indieclub%20article%20%235%20-%20Fair%20Use%20and%20the%20Parody%20Defense.docx#_ftnref6>
*Id.*, at 581.

[7]<file:///C:/Users/Maryellen/Documents/Indieclub%20article%20%235%20-%20Fair%20Use%20and%20the%20Parody%20Defense.docx#_ftnref7>
*Id.*, at 574.

[8]<file:///C:/Users/Maryellen/Documents/Indieclub%20article%20%235%20-%20Fair%20Use%20and%20the%20Parody%20Defense.docx#_ftnref8>
*Id., *at 585, quoting Sony Corp. v. Universal Studios, Inc., 464 U.S. 417,
451.

[9]<file:///C:/Users/Maryellen/Documents/Indieclub%20article%20%235%20-%20Fair%20Use%20and%20the%20Parody%20Defense.docx#_ftnref9>Campbell
v. Acuff-Rose Music, Inc., 972 F.2d 1429 at 1442 (1992).

[10]<file:///C:/Users/Maryellen/Documents/Indieclub%20article%20%235%20-%20Fair%20Use%20and%20the%20Parody%20Defense.docx#_ftnref10>17
U.S.C. §107 (4).

[11]<file:///C:/Users/Maryellen/Documents/Indieclub%20article%20%235%20-%20Fair%20Use%20and%20the%20Parody%20Defense.docx#_ftnref11>510
U.S. 569, at 587.

[12]<file:///C:/Users/Maryellen/Documents/Indieclub%20article%20%235%20-%20Fair%20Use%20and%20the%20Parody%20Defense.docx#_ftnref12>Leibovitz
v. Paramount Pictures Corp., 137 F.3d 109 (2d Cir. 1998).

[13]<file:///C:/Users/Maryellen/Documents/Indieclub%20article%20%235%20-%20Fair%20Use%20and%20the%20Parody%20Defense.docx#_ftnref13>Id.

[14]<file:///C:/Users/Maryellen/Documents/Indieclub%20article%20%235%20-%20Fair%20Use%20and%20the%20Parody%20Defense.docx#_ftnref14>109
F.3d 109 (9
th Cir. 1997).

[15]<file:///C:/Users/Maryellen/Documents/Indieclub%20article%20%235%20-%20Fair%20Use%20and%20the%20Parody%20Defense.docx#_ftnref15>Id.

[16]<file:///C:/Users/Maryellen/Documents/Indieclub%20article%20%235%20-%20Fair%20Use%20and%20the%20Parody%20Defense.docx#_ftnref16>Alan
R. Friedman, Copyright Fair Use: A Comment On the Parody Defense, 242
NYLJ No. 74, October 15, 2009.

[17]<file:///C:/Users/Maryellen/Documents/Indieclub%20article%20%235%20-%20Fair%20Use%20and%20the%20Parody%20Defense.docx#_ftnref17>410
F.3d 792, 2005 Fed. App. 0243A, 74 U.S.P.Q.2d 1865 (2005).

[18]<file:///C:/Users/Maryellen/Documents/Indieclub%20article%20%235%20-%20Fair%20Use%20and%20the%20Parody%20Defense.docx#_ftnref18>Id.
at 801.

[19]<file:///C:/Users/Maryellen/Documents/Indieclub%20article%20%235%20-%20Fair%20Use%20and%20the%20Parody%20Defense.docx#_ftnref19>Id.
at 804.

[20]<file:///C:/Users/Maryellen/Documents/Indieclub%20article%20%235%20-%20Fair%20Use%20and%20the%20Parody%20Defense.docx#_ftnref20>Id.
at 801.

[21]<file:///C:/Users/Maryellen/Documents/Indieclub%20article%20%235%20-%20Fair%20Use%20and%20the%20Parody%20Defense.docx#_ftnref21>555
F.Supp.2d 310 (S.D.N.Y. 2008).

[22]<file:///C:/Users/Maryellen/Documents/Indieclub%20article%20%235%20-%20Fair%20Use%20and%20the%20Parody%20Defense.docx#_ftnref22>Id.

[23]<file:///C:/Users/Maryellen/Documents/Indieclub%20article%20%235%20-%20Fair%20Use%20and%20the%20Parody%20Defense.docx#_ftnref23>Id.
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