BY:Neil J. Rosini, Michael I. Rudell
(Originally published in the Entertainment Law column of the New York Law Journal, April 24, 2009)
When you wish upon a star/ Your dreams come true.
These are the concluding lines from “When You Wish Upon a Star,” the song from Walt Disney’s Pinocchio that justly may be described as a “worldwide … classic” with “beautiful and heartfelt” lyrics and a theme of “wholesome hopefulness.” So said the song’s copyright owner, Bourne Co. (“Bourne”), in a copyright infringement suit against Twentieth Century Fox and others who were responsible for creating, distributing and publicly performing the song “I Need a Jew” in an episode of another animated cartoon, Family Guy. The defendants’ song undisputedly was intended to evoke Jiminy Cricket’s comforting reverie but with substitute lyrics that Bourne called “crass and offensive.”
Last month, Southern District Court Judge Deborah A. Batts awarded the defendants summary judgment on the strength of their fair use defense.1 As in most other cases that concern the use of others’ copyrighted works to poke fun and also follow the U.S. Supreme Court’s 1994 decision in Campbell v. Acuff-Rose Music2, the District Court’s analysis focused on whether the offending composition was parody or satire. In this regard, the decision presents an opportunity to reconsider the distinction between parody and satire in applying the fair use defense.
The Court’s Decision
The episode of Family Guy in question centered on Peter Griffin, the father character, and his difficulty in managing the family’s money. The Court’s decision tells us that “After hearing his friends talk about how men with Jewish-sounding names have helped them to achieve financial success, Peter decides that he ‘needs a Jew’ to help him with his finances.” The theme of the episode is that beliefs based upon racial stereotypes – “positive” or not – are ridiculous.
The writers of “I Need a Jew” labored over how much they needed to borrow from the original in order “to make the average person realize that this was going to be a parody.” In the resulting melody, the first four notes were identical and the rest of the tune, in the Court’s words, was “very similar to the original … [but] at least somewhat different.”
Other elements of the “I Need a Jew” scene also were borrowed from the Disney original. Peter gazes out of a window at the night sky like Gepetto in Disney’s Pinocchio when he wishes for a “real boy.” In Peter’s case, however, the stars coalesce in the shape of a Menorah and Jews appear as magical creatures descending in a spaceship that becomes a flying dreidel. Although Gepetto and Peter both hope to find the person of their dreams through celestial intervention, the Court found that the lyrics had little in common. Peter sings:
“Nothing else has worked so far,
So I’ll wish upon a star,
Wondrous dancing speck of light,
I need a Jew.
Lois makes me take the rap,
‘Cause our check book looks like crap,
Since I can’t give her a slap,
I need a Jew.
Where to find a Baum or Steen or Stein
To teach me how to whine and do my taxes?
Though by many they’re abhorred,
Hebrew people I’ve adored.
Even though they killed my Lord
I need a Jew.”3
The Court found that the lyrics of the two songs were “strikingly different in tone and message” and in the wishes they expressed, and that “the cartoons themselves, could not be more different.”
Parody or Satire?
For purposes of their cross-motions for summary judgment, the parties agreed that the defendants’ use would be a copyright infringement unless a fair use. As the threshold issue in that analysis, the Court focused on whether or not “I Need A Jew” was a parody, as if fair use protection for satire were negligible.
How does one separate parody from satire? Under Campbell, the distinction turns on the “object” of the comment made by the allegedly infringing work. A parody takes elements of a prior author’s composition “to create a new one that, at least in part, comments on that author’s works.” On the other hand, a satire uses another’s copyrighted work as a vehicle to comment on something else, such as society’s follies and vices. Accordingly, if the “commentary” of a musical take-off “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).” Under Campbell, “Parody needs to mimic an original to make its point… whereas satire can stand on its own two feet and so requires justification for the very act of borrowing.”4
Plaintiff Bourne argued in its brief that “the true and only target of the… criticism and ridicule” (emphasis added) in the defendants’ song was “bigotry in the form of Jewish stereotypes”; and further, the song only was “meant to ridicule the boneheaded literal message in the lyrics of [the song] itself.” According to Bourne, this made the defendants’ song a disfavored satire.
The Court disagreed. Judge Batts found that the defendants did more “than just comment on racism and bigotry generally.” Rather, the Court found that “I Need a Jew” commented on three targets that lay apart from its own themes of anti-Semitism and Jewish stereotypes, thereby comprising “several layers of parody.”
First, it targeted the plaintiff’s song and particularly its “warm and fuzzy view of the world that is ultimately nonsense,” in the Court’s view, because “wishing upon a star does not, in fact, make one’s dreams come true.” The defendants’ song thereby commented on the original work’s “fantasy” of “stardust and magic” as well as Peter’s “fantasy of the ‘superiority’ of Jews.” Citing the Campbell standard for parody,5 the Court held that the defendants’ work “may reasonably be perceived as commenting, through ridicule” on the original because it advanced the view that “any categorical view of a race of people is childish and simplistic,” like wishing on a star.
Second, the defendants’ work commented on the “wishful, hopeful scene” in Pinocchio with which the plaintiff’s song is associated. The visual references to Pinocchio in Family Guy made it plain that the defendants did not simply substitute new lyrics “to get attention or to avoid the drudgery in working up something fresh.”
Third, a finding of parody was supported by the defendants’ comment on the “widespread belief” that Walt Disney was anti-Semitic. Whether or not the public associated the song with Walt Disney individually or personally, and whether or not Disney actually was an anti-Semite, was all beside the point. Even if the defendants failed “to speak clearly,” or the joke was not obvious or the joke simply failed, the defendants only had to demonstrate that “a parodic character may reasonably be perceived,” which they accomplished.
Having decided that the defendants’ work was a parody, the Court turned next to the four-factor fair use analysis in Section 107 of the Copyright Act, and concluded that it favored the defendants for the following reasons: (1) their work was “transformative”; (2) the defendants showed concern about “taking just enough of the original to make their point clear” (and even if they took “substantially all of the song… that borrowing was necessary to allow the parodic character of their work to come through”); (3) there could be no question that “I Want a Jew” did not “usurp the market” for the plaintiff’s 69-year old classic. (A fourth factor, the nature of the copyrighted work, is accorded little weight in a parody case, consistent withCampbell.)
The Parody/Satire Distinction
The Court summed up the essential reason why transformative uses, like “I Need a Jew,” “lie at the heart of the fair use doctrine’s guarantee of breathing space within the confines of copyright”6: that is, they shed light on the earlier work by deflating it. In this case, the “[p]laintiff reaps the benefit of [its] song’s association with Pinocchio and Disney, and enjoys its reputation for wholesomeness; it is precisely that beneficial association that opens the song up to ridicule by parodists seeking to take the wind out of such lofty, magical, or pure associations.”
One might ask, however, whether confining the threshold question in a fair use analysis to whether or not a humorous use is parody or satire, ignores that satire also may serve the ends of copyright by ridiculing elements of society that deserve some deflation. Among other benefits, this recognition would save the strain of interpreting humorous lyrics as a “comment” on the original work when other plausible interpretations point elsewhere (like the plaintiff’s in this case and even two out of three interpretations found by the Court).
That satire, like parody, may be entitled to fair use protection, was recognized in Campbell, in dicta: “when there is little or no risk of market substitution … looser forms of parody may be found to be fair use, as may satire with lesser justification for the borrowing than would otherwise be required.”7 In the Family Guy case, the Court found no risk of market substitution, and by the Campbell standard, the defendants’ song could have qualified for fair use protection as satire.
In a 2006 decision, Blanch v. Koons8, where the defendant’s work had a satirical purpose, the Second Circuit held that the “broad principles of Campbell” were not limited to parody. As prescribed by Campbell, that court sought to identify the defendant’s “justification for the very act of borrowing” a photograph that belonged to the plaintiff in order to “satirize life as it appears when seen through the prism of slick fashion photography.”
The court located that justification in the explanation of the defendant artist himself and concluded that “the use of an existing image advanced [the artist’s] artistic purposes.”9 Similarly, the writers of Family Guy did not use “When You Wish …” merely to “get attention” or to avoid the “drudgery” of composing a new tune; their justification was comedic. And according to the Court’s decision, it was undisputed that at least one of the purposes of the defendants’ song “was to hold bigotry and people like Peter Griffin up to ridicule.”
Of course, a satire that ridicules the follies and vices of society with the help of a pre-existing song often may ridicule the song itself, at least in part. This explains why parody may be found even when satirical aspects are more obvious: satires tend to tap into emotive associations of the public with a famous original and turn them upside down for humorous effect, just as parodies do. In the Family Guy case, even if the plaintiff were right and the target of “I Need a Jew” were solely the foolishness of Peter’s fantasies, the joke still depended in part on the contrast between the substitute lyrics and the warm, fuzzy associations of the plaintiff’s original.
Ninth Circuit Judge Alex Kozinski and his co-author noted this distinction in an article written a decade ago: “Even if the original work is used only as a vehicle, not just any vehicle will get you where you want to go. You can only get so many chuckles by mimicking something familiar. When this kind of satire really works well, it’s because there is something about the original that fits – or pointedly doesn’t fit – the subject.”10 The Supreme Court’s concern about the appropriation of others’ works simply to avoid the drudgery of composing something new, might apply best when the original work is essentially unknown. But if a song is famous and has become associated with strong conceptual or emotive associations in the public mind – for example, the “warm and fuzzy” associations of “When you Wish…” – then the incongruous and transformative juxtaposition of new lyrics or musical additions for humorous effect should be justifiable, consistent with Campbell and Koons. It would not be necessary to construe the use as a parody, too.
Returning to the Bourne case, the link between the defendants’ song and comment upon Walt Disney’s supposed anti-Semitism, by way of example, seemed to beg questions that would not have arisen if satire were made more welcome. First, the reference to Walt Disney might better be characterized as satire, not parody. “When You Wish…” was neither sung nor composed by Walt Disney, and nothing in it relates to him or to Jewish people. Walt Disney certainly seems a different target from “When You Wish…” no matter how closely that song became associated with the company that bears his name. And even if a comment upon Walt Disney, the individual, may “reasonably be perceived” in “I Need a Jew,” it is far from obvious — unlike the satirical goal of the defendants’ song on which Bourne placed great stress: to hold bigotry and people like Peter up to ridicule. By reference to that singular and undisputed target of the defendants’ humor, which was juxtaposed for comedic effect with the “sweetness” and “wholesomeness” of “When You Wish…,” the “very act of borrowing” could have been justified.
A tendency of courts that is hardly predictable in its expression, to shift from the obvious to the nuanced in their search for parodic comments on pre-existing works, makes it difficult for comedic writers to know the bounds of the permissible; makes it difficult for copyright owners to know when an infringement lawsuit is a prudent step; and deprives the public of humorous comment on vices and follies that deserve ridicule for society’s sake. To allow more breathing space for satire is not only consistent with the overriding goals of copyright, but also with the fleeting treatment of the subject in Campbell.
1 Bourne Co. v. Twentieth Century Fox Film Corporation et al., __ F.Supp.2d __, 2009 WL 700400 (S.D.N.Y.), March 16, 2009 decision.
2 510 U.S. 569 (1994).
3 As of May 13, 2009, the scene from Family Guy was available on YouTube at http://www.youtube.com/watch?v=Mm2v-FvgSNw.
4 510 U.S. at 580-581.
5 510 U.S. at 582.
6 Citing Campbell, 510 U.S. at 579.
7 510 U.S. at 580, n. 14, emphasis added.
8 467 F.3d 244 (2d Cir. 2006)
9 467 F.3d at 255.
10 Alex Kozinski and Christopher Newman, What’s So Fair About Fair Use?, 46 J. Copyright Society 513, 517 (1999).
11 See also, Roger Zissu, “Funny is Fair: The Case for According Increased Value to Humor in Copyright Fair Use Analysis,” in Kaplan et al., An Unhurried View of Copyright, Republished (and with Contributions from Friends), Geik et al. eds., LexisNexis Matthew Bender (2005). Mr. Zissu argues that “unconvincing, sometimes tortured findings that a good joke or funny spoof could reasonably be perceived as in part intended to ridicule the copied work” in parodic form could be avoided if humor alone were sufficient to satisfy the first factor in the fair use balancing test — especially when “other factors favor the defendant, “such as the amount taken and, in particular, whether the use is injurious to the potential market for or value of the copied work.”