Re: Lame "dilution" assertion by United Feature Syndicate, Inc.

On 04/20/99, Adrienne Meddock <ameddock[_at_]bambi.acc.nccu.edu> wrote:
>
> To add fuel to the fire, there is the line of comment based on the
> concurrence to the 2 Live Crew (Acuff-Rose v. Campbell) case that says
> that to be a parody, the new use must "target" the work from which it
> takes. Judge Posner wrote an influential article claiming that target
> parody, as it is becoming known, is fair use, but mere borrowings that
> do not make fun of the source upon which the parody version is based
> are really derivative works and must seek permission and pay the
> original author. This is a thread in the Dr. Seuss case. There,
> the new authors used Seuss to parody OJ, but not to parody Seuss.
> Therefore, in these terms, it was a "source" parody and not a
> "target" parody.

First of all, Justice Kennedy's opinion in Campbell is only a concurring opinion, and it has the support of only one justice. There is some language in the majority that supports such a distinction, but there is also language in footnote 14 of the majority opinion that seems to indicate that satire can nonetheless qualify for fair use. The upshot is footnote 22: "We express no opinion as to the derivative markets for works using elements of an original as vehicles for satire or amusement, making no comment on the original or criticism of it." So it's still an open question (except in the Ninth Circuit). [It rankles me that the courts have taken it upon themselves to be the final arbiters of the meaning of an artistic work, when most scholars seem to agree that work does not have an intrinsic meaning, but only has meaning in the eye of the beholder; but that's the approach they seem to take.]

For additional arguments why Judge Posner is wrong, see my article in 45 J. Copyright Society of the USA, at pp. 596-598 and 609-613. [I apologize if I appear crass for continuing to blatantly plug my article; but since I've already committed my thoughts on this subject to writing, it seems silly to repeat them in their entirety here.]

> Making fun of Dilbert seems to fit within the "target" area and thus
> be distinguishable from Seuss. But than again, they didn't send me
> the scarry c&d letter :) And of course, that only addresses the
> copyright issue, and not the dilution argument. Has anyone mention
> the pre-federal dilution case of Hormel v. Henson? There is parody
> that was found to be non-diluting and was in the "taget" realm.

Hormel sued Henson for using a pig character named "Spa'am" (two syllables) in Muppet Treasure Island. Given that Spam (the luncheon meat) is a frequent target for ridicule and speculation as to what it might actually contain, the Second Circuit remarked that "one might think that Hormel would welcome the association with a genuine source of pork." It held that the use was not likely to create any negative, unsavory or unwholesome associations.

But Hormel is a far cry from the kind of raunchy sexual parodies that are usually held to constitute tarnishment: Dallas Cowboys Cheerleaders v. Pussycat Cinema ("Debbie Does Dallas"), Pillsbury Co. v. Milky Way Productions (Pillsbury Dough Boy masturbating); and, in the copyright context, Air Pirates (Disney characters doing drugs and having sex) and MCA v. Wilson ("Cunnilingus Champion of Company C"). The Dilbert parodies are much more along these lines, and would very likely have been enjoined. The only sexual parody that was held constitutionally protected that I am aware of was L.L. Bean v. Drake Publishers, 811 F.2d 26 (1st Cir. 1987) ("L.L. Beam's Back-to-School Sex Catalog").

Tyler T. Ochoa
Associate Professor
Whittier Law School
<tochoa[_at_]law.whittier.edu> Received on Wed Apr 21 1999 - 22:40:27 GMT