Re: "Seinfeld" Case(s)?

On Tue, 24 Aug 1999, Lionel English <lenglish[_at_]mail.sdsu.edu> wrote:
>
> On 8/23/99, Robert Cumbow <rcumbow[_at_]grahamdunn.com> wrote:
> >
> > I grant that the Seinfeld case was wrongly decided.
>
> What was the Seinfeld case?

The "Seinfeld Case" is a 1998 2nd Circuit case located at http://laws.findlaw.com/2nd/977992.html. It is the case where the lady wrote a book (entitled "The Seinfeld Aptitude Test") which was in essence an "index" of Seinfeld episodes, presented in a creative way -- trivia quiz style (well, maybe not so novel ... )

The owners of the Seinfeld TV show sued, arguing that the book was an adaptation of the show, and therefore an infringement of copyright (they also sued on trademark issues, which to me seemed the better argument). The author of the book and publisher were held liable for copyright infringement, over strong defenses, including fair use, summarized by the court as follows:

"The more critical inquiry under the first factor and in fair use analysis generally is whether the allegedly infringing work "merely supersedes" the original work "or instead adds something new, with a further purpose or different character, altering the first with new ... meaning [] or message," in other words "whether and to what extent the new work is `transformative.'" Id. at 579 (quoting Leval at 1111). If "the secondary use adds value to the original -- if [copyrightable expression in the original work] is used as raw material, transformed in the creation of new information, new aesthetics, new insights and understandings -- this is the very type of activity that the fair use doctrine intends to protect for the enrichment of society." Leval at 1111. In short, "the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works." Campbell, 510 U.S. at 579."

The decision is worth reading for its analysis of the issues, but Bob Cumbow and I (and I suspect a goodly number of others) think that the end result on copyright infringement was wrong. A tough, factually and legally complex case. Though I do not agree with the result, I understand the argument of the Court and the TV show, and the argument is not without some force.

It also happens to be a perfect example (IMO) of the many grey areas in copyright that cannot be adequately addressed by what some on this list have proposed as a bright line fair use test, or safe harbor.

best, mike oliver
Bowie & Jensen, LLC
<mikeoliver[_at_]home.com> Received on Thu Aug 26 1999 - 01:32:15 GMT