Case Will Challenge Parody Rights
As many readers of Sivacracy are already aware, the Supreme Court endorsed transformative parody as a "fair use" of copyrighted works in Campbell v. Acuff-Rose in 1994. This holding was adopted and arguably expanded in later cases, most notably Suntrust v. Houghton Mifflin. The parody song in Acuff-Rose was arguably offensive to women. The parody in Suntrust arguably framed the novel being parodied, "Gone With The Wind" as racist. Whether a parody is still "fair use" when it is accused of being anti-semitic will now be vetted by a court if the case described here goes to trial. Below is an excerpt from the linked article:
... In a lawsuit filed Wednesday in U.S. District Court in Manhattan, music publishing house Bourne Co. aims to stop the program's distribution. The suit accuses Twentieth Century Fox Film Corp., Fox Broadcasting Co., the Cartoon Network and others of copyright infringement. It seeks unspecified damages.
The lawsuit said that in 2000, the defendants included the parody, "I Need a Jew," in an episode of the Fox television animated series "The Family Guy."
The episode, titled "When You Wish Upon a Weinstein," relied on the premise that the main character could not manage his family's finances and needed to hire a Jewish person to take care of his money, the lawsuit said.
During the episode, the main character, Peter Griffin, sings "I Need a Jew," which the lawsuit called a thinly veiled copy of the music from "When You Wish Upon a Star," accompanied by new anti-Semitic lyrics. ...
The WSJ covered the story here, and quotes Fordham law prof Joel Reidenberg as follows:
The Law Blog checked in with Fordham Law IP professor Joel Reidenberg, who says that Bourne has a pretty good case here, particularly if it can prove that the allegedly infringing work has harmed the market for the song.
“It looks like Bourne has a good case, but it will have to be able to demonstrate that this parody has harmed the value of its original song,” Reidenberg told the Law Blog. “Now I think the fact that the use was so anti-semitic will be very helpful to Bourne in showing that it was not an appropriate fair use.”
I'll go on the record as disagreeing with Joel about this. The First Amendment values that are supposed to imbue fair use determinations ought to mean that Fox prevails even if Bourne can show that the parody harmed the value of his copyright in some way, which strikes me as somewhat of a dubious claim for which the evidence is apt to be highly contrived and convoluted.
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