Copyright And The First Amendment: Lack Of Satire Coverage Leads To Stifling Of Speech
from the what's-wrong-with-satire dept
Copyright litigator Ray Dowd recently discussed this issue in questioning the famous Ninth Circuit decision back in 1997 that more or less set the ground rules here, Dr. Seuss vs. Penguin Books about whether or not a book called The Cat Not In the Hat was protected fair use. The court ruled that it was not, because the work was satire -- and since it used the Dr. Seuss characters not to comment on Dr. Seuss or "the cat in the hat," but to comment on the OJ Simpson trial, that it was not protected under fair use. As Dowd notes, this would seem likely to stifle political speech:
So if I want to draw former President George W. Bush as Mickey Mouse and parody him by placing him in a Mickey/Minnie scenario, by this logic Disney can stop me from engaging in this core political speech because I am not making fun of Mickey, only of the former President.Along those lines, the EFF is now expressing concern over the recent ruling in favor of Don Henley against a California Senatorial candidate, Chuck DeVore. In his advertising, DeVore used a couple reworkings of Henley songs ("The Hope of November" and "All She Wants to Do Is Tax," which were versions of Henley's "The Boys of Summer" and "All She Wants to Do Is Dance"). The court, as in the Dr. Seuss case, noted that since DeVore's use was not parodying Henley, there was no fair use. As the EFF points out, this makes little sense, and leads to some questionable outcomes:
How to permit political speech, promote creativity and maximize economic welfare for both copyright creators and society in general are questions implicated in these debates, with the cultural pendulum slowly swinging towards the Remix culture camp. There are a few signs that legal culture is moving in that direction, with judges taking a more expansive view of fair use.
The videos were core political speech, the most protected form of speech under the First Amendment. Yet the court blocked them, relying on copyright law. What happened?So at what point do the courts (or Congress) realize that not only is this distinction pointless, but also that this is a clear situation where these so-called "safety valves" to protect the First Amendment are not working. Political speech is being denied due to a law from Congress (who, we are told, "shall make no [such] law").
The trouble is the misguided way that some courts have distinguished "parody" from "satire" in when measuring fair use. "Parody," in the world of copyright, means using a work in order to comment on the work itself (or its creator). Parody gets a wide berth under fair use. So, for example, when 2 Live Crew famously sent-up Roy Orbison's "Pretty Woman," the Supreme Court found that the use was permitted. A "satire," in contrast, involves using a work to comment on something other than the work itself.