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April 12, 2006

PLANET MORONIA: Wollyworld 1984

 

 

Wal-Mart still hasn’t given up trying to bar one man from being able to sell his t-shirt that spoofs the Wal-Mart logo.

 

After 48-year old Charles Smith ignored a cease and desist order from the shopping giant and had his attorneys file suit in federal court, Wal-Mart decided to up the ante by counter-suing.

 

Charles Smith has found some heavy-hitting representation too, and includes lawyers from Public Citizen and the Georgia ACLU. As much as I hate the ACLU, it’s good to see some of their money diverted to a real free speech case instead of going toward their usual witch hunt after subliminal crosses and red and green napkins.

 

Smith says that his statement by use of satire is a sincere form of protest against Wal-Mart for moral reasons, including the use of Chinese labor (labor which often is mistreated and carried out in communist prison labor camps).

 

Indeed, satire has been considered a legitimate form of speech as part of that which is covered by fair use not only for social or political reasons, but even for those commercial as well. In fact, it’s a gigantic industry. So why did Wal-Mart go after Smith. Well, because its lawyers who had nothing better to do thought it would be an easy feather in their cap to play the role of Goliath.

 

There may be differences in how the law treats fair use in creative works and fair use in trade marks, but I’m willing to bet the following case fits like a glove:

 

From FindLaw.com (emphasis added):

 

 

PARODY FAIR-USE DEFENSE: OH, PRETTY WOMAN

 

The United States Supreme Court in Campbell v. Acuff-Rose Music, Inc. (1994) stated in no uncertain terms that a parody as a form of criticism or comment could be fair use of a copyrighted work. Oh, Pretty Woman is a rock ballad written by Roy Orbison and William Dees. Luther Campbell and his musical rapper group, 2 Live Crew, wrote a rap song entitled Pretty Woman that had substantial similarities to the Orbison/Dees song. 2 Live Crew attempted to obtain permission for their parody from Acuff-Rose, the publisher of Oh, Pretty Woman, but were refused permission. 2 Live Crew then proceeded without permission to release their rap song and accorded Orbison/Dees with authorial credit and listed Acuff-Rose as the publisher. Acuff-Rose then brought a lawsuit, which at the trial court level ruled in favor of 2 Live Crew based upon its fair use parody defense. This decision was reversed on appeal when the Sixth Circuit ruled against the fair use parody defense because of the commercial nature of the 2 Live Crew rendition and the presumption of market harm that the rap rendition might cause for the Orbison/Dees song. The Sixth Circuit's decision was then appealed to the Supreme Court.

 

The Supreme Court accepted 2 Live Crew's song as a parody because the rap song mimicked the original to achieve its message and because it "reasonably could be perceived as commenting on the original [Oh, Pretty Woman] or criticizing it, to some degree." The Court then had to decide whether a parody such as Pretty Woman could claim protection from copyright infringement liability under the scope of the fair use doctrine. To ascertain whether Pretty Woman was protected by the fair-use defense the Court proceeded to evaluate the four fair use factors.

 

The Court determined that the first factor, the purpose and character of the use, favored 2 Live Crew because a "parody has an obvious claim to transformative value" and the rap song was certainly transformative in that " it provid[ed] social benefit, by shedding light on an earlier work, and, in the process, creat[ed] a new one." Therefore, under this factor, even though Pretty Woman certain had as its motivation commercial gain, the Court ruled that a "parody, like other comment or criticism may claim a fair use under [Section] 107 [of the Copyright Act]." Justice Souter stated that the threshold question involving a parody fair-use defense "is whether a parodic character may reasonably be perceived. ... It is this joinder of reference and ridicule that marks off the author's choice of parody from the other types of comment and criticism that traditionally have had a claim to fair use protection as transformative works."

 

The second factor, the nature of the copyrighted work, the Court decided was not of much help in this matter since a parody by its very nature would only be based upon an "expressive" work.

 

The Court's analysis of the fourth factor, the effect of the use upon the potential market for or value of the copyrighted work, stated that the authors or copyright owner of the original work would normally refuse to license or grant permission to a parodist to parody the original work. Based on this finding the Court then excluded "parody licenses" as a potential market that could be effected by a parody use. The Court then distinguished that 2 Live Crew's Pretty Woman consisted of two separate elements, (i) the parody of Oh, Pretty Woman and (ii) the original rap music itself. In distinguishing these elements the Court decided that the parody could legitimately undercut the market for the original song and any derivative works but that the rap music threatened to illegitimately replace a derivative work market that belonged to the copyright owner of Oh, Pretty Woman. Because there was no evidence on what might be "the likely effect of 2 Live Crew's parodic rap song on the market for a non-parody, rap version of Oh, Pretty Woman, the Court remanded this issue to the trial court for its decision on this matter.

 

As to the third factor, the amount and substantiality of the portion used in relation to the copyrighted work, the Court indicated that a parody presents a unique difficulty when evaluating the amount of copying because the success of a parody depends upon its use of the original work while its "art lies in the tension between a known original and its parodic twin." The Court then reverted to the "conjure up" test that would deny a finding of fair use under this factor only when the parodist "has appropriated a greater amount of the original work than is necessary to 'recall or conjure up' the object of the [parody]." Traditionally the third factor weighs against an infringer when the heart of the original work has been copied, but it is the heart of the original that "most readily conjures up the song for the parody, and it is the heart at which parody takes aim." The question for the Court then became how much further could the parodist go in copying the original once the heart of the original was used. The Court, as did the trial court, believed that 2 Live Crew did not use any more lyrics than were necessary from Oh, Pretty Woman and therefore ruled that the third factor favored 2 Live Crew's fair use defense, but since the Court had already remanded the case on the fourth factor it then also decided to remand on the question of whether the quantity of copying was excessive or not.

 

CONCLUSION

 

The importance of the Acuff-Rose case, even though segments of the case were remanded for further findings was that the Supreme Court reached the unequivocal conclusion that a parody falls within the scope of the fair-use defense.

 

 

Now when Charles Smith wins, and after all of the onerous appeals, I hope Smith’s lawyers go after maximum damages so corporations like Wal-Mart learn that attempting to terrorize a private citizen clearly making the same use of fair use as the Leslie Nielsens, David Lattermans, Weird Al Yankovics, and political activist groups the world over, is a losing proposition.

 

Make no doubt about it, it’s companies like Wal-Mart operating without a conscience that are hiring the illegal aliens who now riot in our streets, do business with regimes like China who threatens nuclear war with the United States and want their interests reflected in congress over the interests of the voter.

 

I’m all for capitalism, but it should be intelligent, Judeo-Christian capitalism, not the stuff of communist propaganda dreams.

 

Wal-Mart should leave Charles Smith alone and stop feeding the bears.

 

 

Posted by Martin at April 12, 2006 10:03 PM

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