Re: "CD manufacturers were sued, and lost..."

On 9/3/1998, Madeleine Fix <fix.3[_at_]osu.edu> wrote:
>
> On 9/1/98, Carol Ruth Shepherd <shepherd[_at_]arborlaw.com> wrote:
> >
> > According to a report from PRI (Public Radio International) this
> > morning, "CD manufacturers" "were sued" and are now requiring
> > producers to provide verification of copyright license or ownership.
> >
> > Anyone know which cases they're talking about?
>
> Yes, I heard that story yesterday. Basically, CD manufacturers were
> sued because of some instances of bootlegging of copyrighted materials.
> All recorded work must be kosher legally in order for CD manufacturers
> to take on the work. So far, what that means is that copyright
> accountability currently resides with these manufacturers; it strikes
> me as being analogous to the Kinko's and copyright of printed material
> controversy. There are a number of artists who sample previously
> existing works, etc. and it is this sort of work (especially rap music)
> which will come under the strong hand of this legal action. Also, some
> other media trickster bands such as Negativland (which uses more
> substantial advertising/mass media sound recordings from tV ads, etc.)
> which is now unable to find a company to press CD's. It's an
> interesting topic as many forms of new media from music to film/video
> and interactive computer work uses what Negativland calls 'the flotsam
> and jetsam' of the sound world. They say, according to the NPR story,
> that their approach is analogous to the Surrealist movement of image
> collage.
>
> What I'm wondering is how literal translation of original intention of
> soundwork from advertising, etc. into satirical or forms otherwise
> transformed from the original work is affected by copyright laws.

Your question goes back to "fair use." Parody is contemplated by the fair use defense. If sued, the defendant will have to convince the court that the four fair use factors weigh in its favor.

One recent case that defines parody is the "Cat Not in the Hat" case, in which Dr. Seuss's estate succeeded in copyright infringement claims against the publishers of a book of that title. The book drew heavily on Dr. Seuss's classic "The Cat in the Hat" to satirize the O.J. Simpson trial. On the parody/fair use defense, the court held that to be a parody, a work must comment on the original work being parodied, not on an unrelated work or situation. Since "The Cat Not in the Hat" was not commenting on "The Cat in the Hat," it was not a parody.

This helps define parody for fair use purposes -- as in another recent case in which the producers of a comedy movie were absolved of infringement liability for advertising a movie with a photograph of Leslie Nielson's head superimposed on a pregnant woman's body, in a parody of Annie Liebowitz's photograph of a pregnant Demi Moore.

Problems arise in applying the fair use defense to a satirical use of a work. The rationale for the fair use defense is to permit some activities that would otherwise be infringing as an adjunct to commentary, in one form or another, regarding the original work. Use of a work for satirical purposes is not as likely to be directed at the work itself, but at some larger issue (society, commercialism, Republicanism, religion, etc.) This does not necessarily leave satire a la Negativland completely out in the cold, but it does make the fair use analysis more difficult.

Daniel J. Schaeffer
<daniel_schaeffer[_at_]kirkland.com> Received on Thu Sep 03 1998 - 13:06:30 GMT