April 10, 2012 @ 13:38:00
Why Courts Should Not Allow the Parody Exception to Make a Parody of the Copyright Law
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This is a repost of my article that I published at MINCOV.COM on June 28, 2009.

Recently I wrote a 100-page comparative research paper on the treatment of parody in the copyright laws of common law countries and selected European countries. Thus, I could not help but voice my thoughts regarding the ongoing dispute between J.D. Salinger and the author and publishers of a purported sequel to The Catcher in the Rye (“Catcher”).

J.D. Salinger has sued Swedish author Frederik Colting, who wrote the novel 60 Years Later: Coming Through the Rye (“60 Years”) under the pseudonym J.D. California. The disputed literary work has attracted comments ranging from “rip-off, pure and simple”1. to “a sequel”2., to “not a sequel”3., to “criticism of J.D. Salinger and of Catcher in the Rye4., to “tremendously important commentary”5., to “a parody”6., and finally to “a complex and undeniably transformative exposition about one of our nation’s most famous authors, J. D. Salinger, and his best known creation, Holden Caulfield."7.

In his declaration, Mr. Colting concedes that his earlier book cover and some promotional material characterized 60 Years as a sequel8.. One would find it hard to believe that it is a coincidence that he came to “realize that this description is inaccurate”9. only after the lawsuit has been filed. Suddenly, the “parodist” realized that his book, on which he spent “an entire year of [his] life”10.,

      “is not designed to satisfy any interest the public might have in learning what happened next to Holden Caulfield or the other characters in Salinger’s book. Rather it is intended to stand on its own as a critical examination of the character Holden Caulfield, the relationship between author and his creation, and the life of a particular author as he grows old but seems imprisoned by the literary character he created”11..

It is only after the lawsuit was filed that Mr. Colting expressed the view that he “wrote 60 Years as a critical exploration of such themes as the relationship between J. D. Salinger, the famously reclusive author, and Holden Caulfield, his brash and ageless fictional creation”12..

Granted, I may be overly sceptical about Mr. Colting’s description of 60 Years. I did not read it.

What? You might say, and yet you are writing an article on it?

Please be patient, gentle reader, as I shall expound my logic on this further on.

Indeed, it might be a true gem of a parody. Maybe, it is an “important commentary and criticism of Catcher and its famous author”13.. Colting acknowledges that he is “fascinated by the widely-reported fact that, after creating Holden, Salinger never published another work and essentially became a recluse, while at the same time exercising ‘iron-clad control over his intellectual property, refusing to allow others to adapt any of his characters or stories in other media’”14.. He specifically chose Salinger’s famous work as the basis for his “first novel”15. not only because it is one of the most famous novels of all times, but also because of Salinger’s fierce opposition to any, let alone unauthorized, derivative use of Catcher. The question is, even assuming 60 Years is indeed a true parody, should Colting get away with it?

The attempt of Colting and his lawyers to classify 60 Years as criticism and parody is not unexpected. From the documents and comments I have gathered, it appears very likely that, despite the defendants’ claim to the contrary, 60 Years will be held to constitute an unauthorized use of Catcher and its protagonist. If this happens, the only way for the defendants to avoid the finding of infringement would be to prove that the use of Catcher constitutes fair use under §107 of the U.S. Copyright Act16.. While the list of purposes that presumptively imply a fair use in §107 is not exhaustive17., the presumption, if satisfied, of course, makes the defendants’ task much easier.

The fundamental distinction between common law and civil law approaches to the criticism exception is in the fact that the former permits any type of use of the underlying works for the purpose of criticism (provided that such use is fair), whereas the latter only permits quotation of underlying works for such purpose. By implication, quotation only allows unaltered (albeit fragmentary) use of underlying works18.. Parodic modification of an underlying work, while it still may be regarded as criticism, is beyond the definition of quotation. Quotation presupposes scrupulous copying of the used portions of an underlying work and their separation from what is added by the new author. Parody, on the other hand, normally implies integration of the modified (or, in some cases, mutilated) underlying work into the new resulting work.

In common law countries, the criticism exception seemingly allows any type of use of an underlying work provided that such use is made for the purpose of criticism, without it being expressly limited to quotation. Hence, the willingness of creators of unauthorized derivative works to claim this exception as a defence. I suggest that while the criticism exception in common law countries is not expressly limited to unmodified use of underlying works, this limitation is implicit in the words “fair use” or “fair dealing” (since, perhaps, unauthorized alteration of the work for the purpose of criticism should be regarded as unfair19.).

Criticism is an extremely broad notion. Any use of an underlying work may be said to be a criticism of something or someone. No doubt, parody is criticism. But there are many “unfair” uses that also fall within the definition of criticism. For example, creation of a DVD collection “100 most boring movies” is criticism. However, unauthorized reproduction of 100 full movies under this title would still be unfair and illegal. Likewise, a CD collection of “100 songs by ugly hairy artists” is also arguably criticism, which cannot be excused as fair use or fair dealing20.. The mere purpose of criticism does not justify copyright infringement.

The fairness analysis with regard to parody has the same inherent difficulties as that with regard to criticism, with one additional aggravation. There exists no unequivocal legal definition of parody. Because most people (and courts) tend to agree that parody, by definition, requires more extensive use of the underlying work, compared to criticism, the so-called parody exception has become a dominant theme with those driven by the general idea that the balance of interests should tip in favour of the public by limiting the rights of authors and copyright owners (and thus ignoring the fact that the public would only benefit from the use of works if they are created and disclosed by authors).

Their attack on copyright has been carried out on several fronts. The economic irrationality of litigation in case of mass infringement of copyright on the Internet is often used as a pretext to justify the idea that what is done with impunity by so many people cannot logically constitute an infringement. Concepts of freedom of expression, freedom of seeking information and the right to cultural development have been thrown in the mix to rationalize legalization of unauthorized use of heretofore protected works. A separate trend in the so called “fair copyright” movement is represented by calls for extremely broad interpretation of exceptions to copyright.

Parody is a very convenient example for the “fair copyright” movement supporters to use. By providing examples of successful parodies, the supporters of “fair copyright” claim that copyright unfairly prevents creation and use of parodies. That a plethora of successful parodies have been created under “parody-unfriendly” copyright regimes that refuse to recognize an exception for parodies, seems not to disturb the commentators.

For example, in the UK, the proposal to add an explicit exception for parodies was formulated in the Gowers Review of Intellectual Property (“Gowers Report”) in 200621.. Surprisingly, to prove the point that “an exception to enable parody can create value”, Gowers offers the example of Weird Al Yankovic who has received 25 gold and platinum albums, four gold certified home videos and two GRAMMYs® by parodying other songs, “but had to ask permission from rights holders”22.. It is inconceivable how a special exception can be necessary if there is a living example of an artist who sold 25 gold and platinum parody albums, but never had an urge to create unauthorized parodies. Does the report suggest that he would have sold more platinum albums if he was allowed to create parodies without asking permission? Or would his parodies be any better? Indeed, the example of Weird Al Yancovic clearly proves the contrary, that no special exception for parodies is necessary.

It seems illogical to attribute greater importance to the “parody exception” than would be justified by the relative frequency of creation of parodies compared to the use of pre-existing works for the purposes of criticism, news reporting, research or private study. Overly enthusiastic attempts to introduce broadly interpreted exceptions for parody may signal that the proposal is broader than it appears to be, and that it may be only tangentially related to parodies. The parody exception is only one of many exceptions. It is not “the” exception that will significantly change the balance of interests between authors and the public.

However important the transformative element is in the fair use analysis, it does not take away the exclusive right of copyright owners to authorize creation and use of derivative works. The general idea is that there must be something very special about the parody which warrants a substantially different approach compared to other transformative derivative works. It is well known that Salinger turned down requests from Steven Spielberg and Harvey Weinstein to acquire film rights. If 60 Years is a protected criticism or parody, how is it different from an unauthorized motion picture? If 60 Years is found to be legal, how long will take until a new unauthorized commentary emerges?

Unlike in common law countries where the discussions about parody exceptions are a more recent trend, the parody exception has existed peacefully in France since 1957. Article L. 122-5 of the French Code of Intellectual Property provides that “once a work has been disclosed, the author may not prohibit… parody, pastiche and caricature, observing the rules of the genre”. Despite the somewhat vague wording relating to the requirement to observe “the rules of the genre”, the French courts have been extremely cautious in applying this exception.

The disproportionate worldwide interest in the parody exception is largely due to the U.S. Supreme Court decision in Campbell v. Acuff-Rose Music (“2 Live Crew”)23., the leading (and internationally famous) case dealing with a rap version of Roy Orbison’s song “Oh, Pretty Woman”, as performed by the band 2 Live Crew. There, the concurring24. Justice Kennedy outlined the dangers of an overly broad interpretation of parody and of creating a presumptive exception with regard to parodies:

      “…doubts about whether a given use is fair should not be resolved in favor of the self-proclaimed parodist. We should not make it easy for musicians to exploit existing works and then later claim that their rendition was a valuable commentary on the original. Almost any revamped modern version of a familiar composition can be construed as a ‘comment on the naiveté of the original’, because of the difference in style and because it will be amusing to hear how the old tune sounds in the new genre. Just the thought of a rap version of Beethoven’s Fifth Symphony or ‘Achy Breaky Heart’ is bound to make people smile. If we allow any weak transformation to qualify as parody, however, we weaken the protection of copyright. Any underprotection of copyright disserves the goals of copyright just as must as overprotection, by reducing the financial incentive to create.”25.

It is hard to disagree with Justice Kennedy's words. Unless we are prepared to create a parody of our copyright laws, it is imperative that the definition of parody be limited to a very circumscribed area, otherwise practically any infringement could be excused under the umbrella of parody. Indeed, the exception cannot be so broad as to allow the creation of any new works over the existing ones under the guise of parody.

It may seem that the dangers of an expansive interpretation of what may constitute a parody identified in 2 Live Crew by Justice Kennedy are in fact seen as a great advantage by “fair copyright” activists. Indeed, an overly broad parody exception effectively creates a shortcut to a general “public benefit” exception, readily allowing an unauthorized use of an existing work if it benefits the society. I suggest that there are two reasons why a general “public benefit” exception is a bad thing. First, it does not take into account the works that may never be created by authors discouraged by the failure of the courts to protect their works from being used against their will. Second, balancing the interests of various parties is not a distinctive characteristic of copyright laws. All laws are presumably premised on the balancing of such interests. General property laws are also adopted with the view of the public interest in mind. Unrestricted unauthorized use of someone else’s physical property may also have “public benefits”, but no one seriously suggests that such measures be taken. Encroachment of property may only be allowed in some very limited and clearly prescribed cases. I posit that it is exactly the same approach that must be taken with regard to parody.

Copyright laws have always been about the balance of the interests of creators and the public, about whether it is more fair to subject the public’s access to works of art to the whim of the creator or whether it is more fair to deprive the creator of a certain degree of control over the use of his works by the public. In my view, the danger that an overly broad parody exception may evolve into an open transformative use exception is far greater than the damage resulting from a “true” parodist’s failure to publish their unauthorized parody. In other words, if lawmakers and the courts cannot provide a clearly delineated system of rules and definitions that would allow some foreseeability as to whether a particular work would qualify as a parody, then I suggest an absolute ban on unauthorized parodies would be more appropriate than the ultimate uncertainty where an infringer can ex post facto claim that the infringing work is a parody.

I do acknowledge the intrinsic value of parodies and do not necessarily fully subscribe to the words of Ernest Hemingway who once said:

      “The parody is the last refuge of the frustrated writer... The greater the work of literature, the easier the parody. The step up from writing parodies is writing on the wall above the urinal”26.

There are some truly great parodies. In my opinion, the best parodies have been those that did not parasite on the popularity of the originals. The more famous the original, the harder it is to create a great parody, since true parody needs to overshadow the original, and it is usually hard to add much to an already famous work.

The courts should never go into evaluating the quality of parody. A brilliant, sharp and socially necessary parody in legal terms bears the same relationship to the original as primitive, nonsensical mockery. Unfortunately, as with any other kind of creative works, truly valuable parodies will only make up a fraction of the bulk of garbage created by wannabe parodists. Creativity should be supported. However, in case of parodies, supporting parodic creativity necessarily means doing so at the original authors’ expense. I firmly believe that unless very strict rules and limitations are introduced to come along with the parody exception, the price payable by original authors is too high. These rules and limitations must cover both what may legally constitute a parody and how unauthorized parodies may be used. Uncertainty creates serious risks for parodists too. If Mr. Colting is permanently enjoined from publishing 60 Years, he and his publisher will have lost time, efforts and money spent on creating and publishing a work that they hoped would meet the vague requirements for parody. Of course, it is the risk one takes when one relies that their actions will be excused under the fair use doctrine. But today the parody exception is too unpredictable – and this cannot encourage parodic creativity either.

Going back to Salinger’s claim, the defendant’s argument regarding market impact deserves a special remark. Indeed, Salinger has not written a novel since Catcher. No doubt, there is no market substitution in the sense that the public will not be inclined to buy 60 Years instead of Catcher. There are three reasons why Salinger’s claim should not fail for lack of negative impact on the market for Catcher.

First, the analysis is not limited to direct market substitution of the original work and the parody. It also covers potential legitimate licensing opportunities the plaintiff may have and the parody’s impact thereupon. With every new day of Salinger’s refusal to authorize anyone to create derivative works, his exclusive right is worth more. While 60 Years may not ruin the market for Salinger per se, it is the legalization of 60 Years that is very likely to do so. In other words, if 60 Years is found to constitute a protected parody, what would prevent a film company from creating a motion picture based on 60 Years, which would incorporate a good deal of reminiscences to Catcher? What would prevent the emergence of new sequels under the guise of important commentaries and parodies? It so happened that a part of the value of Salinger’s copyright is due to the fact that he never authorizes others to touch Catcher. It only takes one shot to break a mirror.

Second, it would be incorrect to use the negative impact on the legitimate economic interests of the original author as the sole or even a dominant factor in the parody analysis, because – by way of analogy – if someone was to make pirated copies of software or music CDs and give them away for free to the homeless, one could say that the homeless would never be able to buy the authentic CDs, therefore the copyright owner suffered no loss. There could even be cases where copyright infringement may have a beneficial economic effect on the market for the original author’s works, because the infringing work may in fact revive interest in the original work. However, it does not make these acts any less an infringement.

Finally, there is nothing wrong with an author’s decision to live secluded from the public eye after publication of a phenomenally successful book. Salinger must have made this decision on the basis of trust in the protection offered by the copyright laws. This is the deal between the author and the public. The public should not attempt to force an author into writing new works by removing protection from the existing ones. That the value of the work is so great that it allows the author the luxury of living as a recluse should not be used against the author by depriving the author of the promised protection.

On June 17, 2009 the federal judge Deborah Batts granted a temporary restraining order enjoining the defendants from publishing, advertising, selling, or otherwise distributing 60 Years. It is clear that this case will go through all possible stages of appeal until the losing party loses the final appeal. Apart from the issue of whether Catcher’s protagonist may be protected by copyright separately from the book itself, this case will set an important precedent for the treatment of parody.

If Salinger fails to permanently enjoin dissemination of 60 Years as a result of the court’s finding that it constitutes protected criticism or parody, it will signify a very substantial diminishing of the value of the right to create and use derivative works. It will mean that a sequel to a pre-existing work may not require authorization from the original author, if the defendant suddenly remembers that the sequel was in fact created as an important commentary or parody. This is precisely what Justice Kennedy was warning against in 2 Live Crew. If 60 Years is anything less than a true parody or criticism, the decision in favour of the defendant would signify the emergence of a general “transformative use” exception, incompatible with the exclusive right to control derivative works.

With today’s attempts of the activists of the so-called “fair copyright” movement to use parody as a flagman ship to break the ice of protection that copyright laws afford, parodists seem to be in a win-win situation. If the author of the original work does not sue them, then they are left to parasite from the fame of the original work. If they do get sued, then the activists will make sure that the parodist becomes widely known as a martyr standing up for the rights of creators of transformative works, if not simply famous as a writer27.. If the parodist successfully defends the case, they will be able to sell many additional copies of the parody based on the fame attracted by the lawsuit. Even if the parodist loses the case and the distribution of the parody is enjoined, the newly acquired fame generated by the lawsuit will allow the parodist to sell whatever he or she writes next in their new status of celebrity.

The courts need to come up with a pronounced “Enough!” to the attempts to compromise copyright through labelling (often in the alternative) each case of non-literal copying of a pre-existing work, a parody. The parody exception cannot be claimed as an alternative. This has been understood in France28., where the dual requirement of recognisability and substantial creativity precludes a defendant from using the parody exception as an alternative to the defence of not borrowing from the underlying work. In other words, the defendant cannot say: “I did not copy this work, and if I did, it was a parody”. Parody requires the parodist’s positive intent to borrow from the underlying work to create a new work with a comic effect29.. An infringement does not become a parody simply because the result it funny. Much less when it is not.

60 Years looks like a blatant attempt to test how decidedly the courts would be prepared to turn their backs on authors for the dubious public benefit of having access to the book whose primary value is that it is either a sequel to or a commentary of the famous pre-existing work. If the courts are unable to defend Salinger, an iconic example of an author who had dedicated his life to preventing unauthorized use of his prior works, then we should ask ourselves, why do we still have copyright laws at all and whom they are supposed to protect.

1. J.D. Salinger's complaint, online: http://docs.justia.com/cases/federal/district-courts/new-york/nysdce/1:2009cv05095/346633/1/, at para 4.

2. Declaration of Frederik Colting (“Colting’s declaration”), online: http://docs.justia.com/cases/federal/district-courts/new-york/nysdce/1:2009cv05095/346633/17/, at para 24.

3. Ibid.

4. As argued by defendants’ lawyer, Mr. Rosenthal, as reported by Vince Manapat, online: http://www.vincemanapat.com/index.php/archives/216 .

5. Ibid.

6. Defendants’ Memorandum of Law in Opposition to Plaintiff’s Motion for Preliminary Injunction (“Defendant’s Response”), online http://docs.justia.com/cases/federal/district-courts/new-york/nysdce/1:2009cv05095/346633/25/, at 16.

7. Ibid, at 8.

8. Colting’s declaration, supra note 2, at para 24.

9. Ibid.

10. Ibid, at para 36.

11. Ibid, at para 25.

12. Ibid, at para 6.

13. Defendants’ Response, supra note 6, at 2.

14. Ibid, at 19.

15. Colting’s declaration, supra note 2, at para 36.

16. 17 U.S.C. [U.S. Copyright Act ].

17. The enumerated purposes are criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research. The list is recognized as open-ended, because it is introduced with the words “for purposes such as”.

18. This was recognized in Germany by the Munich Court of Appeal in a case brought by the Bunte magazine against the Spiegel magazine for unauthorized use of a slightly modified version of the plaintiff’s photograph. It was found that “[t]he nearly unaltered adoption of the picture did not serve the purpose of appraising the work of the photographer; rather it meant to encourage a debate about the pictured event itself, namely the behaviour of the former minister of defence”. Importantly, it was also found that the photograph could not be treated as a “quotation” as it had been altered. OLG Munchen, 30.01.2003, OLG Report Munchen 2003, 432, cited from Fair dealing - a European perspective, online: http://www.lovells.com/Lovells/MediaCentre/Articles/Fair+dealing+-+a+European+perspective.htm .

19. In an old anecdote, a man explains that he dislikes the singing by Enrico Caruso in the following manner: “No, I haven’t heard him sing, but my friend sang it to me ‘the way Caruso used to sing’, and I did not like it”. One should not judge things by someone else’s interpretation thereof. The object of critique should always be readily distinguishable from the critique.

20. The unavailability of the fair use defence which these examples purport to uphold is primarily premised on the idea that where a critic takes substantially more than the purpose of criticism requires, or where the use of the work is not central to the criticism (i.e. when the same result could have been achieved without using the work), then even though the use of the underlying work falls within the purpose of criticism, it will not constitute “fair dealing” with the work. These are not the only considerations to be taken into account when assessing the “fairness”, but they provide a vivid demonstration that the use of the work for an enumerated purpose, while a necessary requirement for application of the fair dealing defence, is not sufficient.

21. Gowers Review of Intellectual Property, December 2006, HM Treasury, online: http://www.hm-treasury.gov.uk .

22. Ibid.

23. Campbell v. Acuff-Rose Music, 510 US 569, 114 S. Ct. 1164 (1994) [2 Live Crew cited to U.S.].

24. It is important to always hold in mind that Justice Kennedy’s opinion was concurring, not a dissent. The majority in 2 Live Crew did not find that the rap version was necessarily a parody or that it did not substantially affect the market opportunities of the plaintiff. What they found (and what Justice Kennedy concurred with) was that even a commercially distributed unauthorized parody may, under certain circumstances, be excused under the fair use doctrine. The case did not create an additional enumerated purpose which is presumptively fair. It simply opened the door to argue that “true” parody may receive special treatment during the analysis of the fair use factors.

25. 2 Live Crew, supra note 23, at 1181.

26. Ernest Hemingway, quoted in A.E. Hotchner, Papa Hemingway, 1966 edition, pt. 1, ch. 4 (1966).

27. In all honesty, if not for copyright lawyers, how many people would know about or still remember the “parody” created by 2 Live Crew of Roy Orbison’s song “Oh, Pretty Woman”?

28. Paul Geller, International Copyright Law and Practice (New York: Matthew Bender, 1988 – present), at para. 8[2][b][ii] at FRA-123.

29. Several U.S. cases point out that the derivative work needs not necessarily be funny to be excused under the fair use doctrine, thus attracting commentaries to the effect that “funniness” is not a required trait of the parody. While the Suntrust Bank v. Houghton Mifflin Co., 268 F.3d at 1268-69 found The Wind Done Gone to be fair use of Gone with the Wind, it did not do so because it decisively established that The Wind Done Gone was a parody. It was enough for the court to find that the four fair use factors weighed in favour of the defendants. That the work did not have a comic effect does not take away from the fact that a true parody must have that effect. Not all derivative works excused under fair use doctrine have comic effect, but it does not make them parodies.

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