The Illustrated Story of Copyright
© 2000 by Edward Samuels

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Chapter Eight



Copyright Limitations, Exclusions,

and Compromises




I suspect that most people think of themselves most of the time as copyright users rather than copyright owners. For every book or movie or song we write, we’re likely to read or watch or hear hundreds. So I wouldn’t be surprised if my general enthusiasm for copyright has struck fear into the hearts of most readers. If copyright is really so powerful, and if so much of our consumer technology impinges upon it in one way or another, how in the world can we be expected to avoid an inevitable confrontation with the “copyright police”?


            Well, don’t worry. Copyright isn’t nearly as absolute as it may sound: it’s subject to dozens of limitations and exclusions and compromises that preserve a careful balance between the owners and users of copyrighted works. We’ve already seen many of these limitations in the preceding chapters, such as the special rules for library photocopying, the limitation to “original” works of authorship, the limitations from the first sale doctrine, and from various compulsory licenses for the making and performing of phonorecords and for cable television.*


*Library photocopying, see p. 20; originality, p. 127; first sale doctrine, p. 167;
  phonorecord compulsory license, p. 38; cable compulsory license, p. 66.


            In this chapter, we’ll take a look at other limitations upon copyright. Some of these limitations are very specific, such as those governing certain nonprofit performances. However, several are general in nature, fundamental in principle, and sometimes fiendishly difficult in explanation and application. Perhaps the most abstract and difficult to apply is the doctrine of fair use, which we’ll consider last.



Specific Limitations and Exclusions


Nonprofit Musical Performances


In 1856, Congress granted copyright owners the exclusive right to perform their works publicly, and in 1897 that exclusive right was extended to musical works. In the case of musical works,* the performance right was limited to public performances “for profit.”  ASCAP was successful, however, in getting the courts to interpret many performances as “for profit,” including “free” musical accompaniments to silent movies, “free” music in bars and restaurants, and “free” radio and television programming on stations that nonetheless were ultimately run for profit.† So users [182] had to get licenses for all such public performances. But truly nonprofit musical performances, such as Girl Scouts singing around the campfire, or high school musicians performing for free, were perfectly okay under the existing statute.


*Public performance rights, see p. 168.

†Bars and restaurants, see p. 41; radio, see p. 43.


King of kings - cue sheet

music at the movies

[181] Cue the music!
The musical accompaniment was an integral part of the silent movie experience—an entertainment open to the public, and certainly for profit. At left is an example of a cuesheet for suggested music for the movie The King of Kings, a $2.5 million Cecil B. DeMille extravaganza. It would hardly do to skimp on the music! In 1924, a federal circuit court held that any such copyrighted music had to be licensed for public performance, even though the defendant argued that the musical accompaniment was “free” (for customers who paid to see the movie). Even after the advent of sound movies, ASCAP tried to get the theater owners to pay a fee for the right to perform music on movie soundtracks.  That practice was held invalid in 1948; now theatrical performance rights in music are “cleared at the source” by movie producers, through so-called synchronization licenses.


Girl Scouts play music

[182] Girl Scouts making music.

These Girl Scouts of the 1950s would not have been infringing any copyrights in the music they played, because the performances were arguably not public, and in any event not for profit.

            In 1976, however, Congress changed its approach to public performances of music. It dropped the specific “for profit” requirement in the statute, and replaced it with a number of specific exemptions, generally covering specified nonprofit performances of musical, and some dramatic, works. Most of these exceptions were in response to lobbying efforts by the particular nonprofit organizations involved. For example, there are special provisions for the performance of works in “face-to-face teaching activities” or in television broadcasts for use in “a nonprofit educational institution”; for certain performances as part of religious services at a house of worship; for certain performances for educational, religious, or charitable purposes; and for works prepared for the blind or other handicapped persons. There are special exemptions for performances at “a nonprofit agricultural or horticultural fair or exhibition,” or a “nonprofit veterans’ organization or a nonprofit fraternal organization” fund-raising event.

[183] A fit of overexuberance.
In a fit of overexuberance to collect public performance licensing fees, ASCAP recently asked several summer camping organizations, including the Girl Scouts, to pay a modest ASCAP fee for music performed at the camps. Although the Girl Scouts are nonprofit, many summer camps are not, and it is at least arguable that some of their musical performances are “public.” After a flurry of newspaper articles critical of ASCAP, the embarrassed music organization quickly retreated from any efforts to require licenses. The episode indicates, however, that the exceptions are not automatic, and that it is best for an organization to have a specific exemption in the statute.

Radio Musical Performances in Restaurants and Small Businesses


One of the specific exemptions in the 1976 Act allowed for a public performance by means of turning on a radio or television in a public place “on a single receiving apparatus of a kind commonly used in private homes.” This section led to an inordinate amount of litigation and some contentious lobbying in Congress. Cases involved such commercial establishments as the Gap, Claire’s Boutiques, and Plaza Roller Dome, Inc., of Laurinburg, North Carolina, all of which provided radio music to their customers, some using elaborate radio systems that arguably went beyond what was “commonly used in private homes.”


            A coalition of commercial businesses generally opposed to paying ASCAP licenses fought for legislation to exempt from the licensing requirement “small” businesses that merely provided radio music to their customers. In 1998, the coalition won a major victory against the performing rights organizations, [183] the so-called Fairness in Music Licensing Act. That act limited the licensing powers of ASCAP, BMI, and other music licensing organizations in several ways. Most importantly, it created an exemption for restaurants and certain small businesses (based upon square footage of the establishment) that previously had to pay the licensing organizations for the privilege of playing the radio on their premises. The immediate effect of the amendments was that these restaurants and business establishments did not have to pay the few hundred dollars per year in licenses that the performing rights organizations had been charging them; and the licensing rights organizations immediately saw their expenses increase and their revenues decrease.


            There are several reasons why the small businesses succeeded in getting their victory. For one thing, the advocates were able to convince Congress that the fees they had to pay were a nuisance, and something of a double recovery, since the copyright owners were already paid substantial royalties from the radio and television stations and networks whose music was made available to customers. The advocates of the amendment were also able to make it the price that copyright owners had to pay for getting the 1998 extension of the length of copyright from life of the author plus fifty years to life of the author plus seventy years:* it was clear that the term extension would not pass without some relief to the small business establishments. (In theory, by linking music “fairness” to the extension of the copyright term, musical copyright owners’ decrease in revenues per year would be offset by the longer period they had to receive those revenues.) The advocates of the amendment also got some very good press from some overexuberance by ASCAP in trying to enforce its licensing rights (see sidebar).


*Extension of copyright term, see p. 206.


            I’m hard-pressed to think of a single other example in the 210-year history of copyright in which Congress has cut back on already established rights of copyright owners. The closest analogy is a 1948 court decision that ASCAP could not charge movie theaters for playing the music recorded on movie soundtracks, but instead had to rely on “synchronization” licenses with the movie producers.  The rationale for [184] such an outcome is the same: you get one licensing opportunity at the source, but not multiple licenses with everyone else down the distribution chain.


Compulsory Licenses


In several instances involving the challenge of new technologies, Congress has come up with “compulsory licenses” that allow users to “take” works upon payment of predetermined fees. The first such compulsory license, the phonorecord compulsory license, was introduced in 1909.* It provided that, once a music copyright owner made a recording of the work, anyone else could make and distribute recordings of the same work for a set fee.


*Phonorecord compulsory license, see p. 38.


            The next set of compulsory licenses was introduced in the Copyright Act of 1976. The cable television issue had held up copyright revision for many years. The ultimate resolution of the problem was to adopt a compulsory license that allowed cable systems to import distant television signals upon payment of a statutory fee.† Also in 1976, Congress adopted a compulsory license for the playing of music in jukeboxes for the payment of a set fee, originally set at $8 per jukebox, and gradually increased to $63 and upwards per jukebox. (This particular compulsory license has been repealed, in favor of industry-negotiated arrangements for payments of fees. The current agreed-upon fees are $275 per year for an operator’s first jukebox; $55 per year for each of the second through tenth jukeboxes; and $48 per year for each additional jukebox thereafter.)  The third new compulsory license in the 1976 Act provided for licensing of music and certain pictorial works for noncommercial television and radio broadcasts.


†Cable compulsory license, see p. 66.


            Each of these compulsory arrangements represented congressional compromises between granting an exemption and holding copyright users fully accountable for their uses of copyrighted works. Each of these arrangements also resulted in a complicated payment scheme that was less than satisfactory, but perhaps the best that could be done in the circumstances.


            Right after the 1976 Act, it was unclear whether the compulsory licenses were solutions for an isolated set of problems, or whether they were the wave of the future. Since 1976, it appears that they were the wave [185] of the future. Congress has adopted a compulsory licensing scheme to handle satellite television systems that work similarly to cable systems; to handle digital audio home recorders;* and to handle subscription digital audio transmissions.† And there are other limited situations in which people or companies that would otherwise be infringers will be allowed to continue using copyrighted works upon payment of a reasonable fee—essentially, a compulsory license. Whether one loves or hates these arrangements, they do indicate that there are options available in the copyright scheme that steer a middle course between full liability and no liability at all. 


*Digital audio compulsory license, see p. 50.

†Digital audio transmission compulsory license, see p. 51.


General Limitations


Works of Utility


Saarinen chair

[185] Take away the design.

The pedestal chair designed by Eero Saarinen was revolutionary in the 1950’s, and has been much imitated since then. The chair, while innovatively and pleasingly designed, is not copyrightable as such, because it has no features that can be said to exist separately from the functional aspects of the chair. Take away the “sculptural features,” and there’s nothing left: you fall on the floor!

A copyright in a work that combines decorative and functional elements does not prevent others from either using or copying the functional elements. In the somewhat cryptic words of the statute,


“Pictorial, graphic, and sculptural works” . . . shall include works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian aspects are concerned; the design of a useful article, as defined in this section, shall be considered a pictorial, graphic, or sculptural work only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.


            What in the world does this mean? A sculpture is generally copyrightable. If the sculpture is in the shape of a chair, then it’s not copyrightable as a chair, because the “sculptural” features of the chair don’t exist independently of the chair.


            The distinction helps to elucidate what copyright law is and what it is not. Copyright is directed primarily at the aesthetic, but cannot be used to create monopolies in functional aspects of works. To some extent, the “works of utility” doctrine is explained by bearing in mind the distinction between copyrights and patents. It’s primarily the role of patent law to grant exclusive rights in the functional aspects of works, and there’s even a special category of “design patents” to cover the design aspects of [186] certain utilitarian products. The problem is that most works don’t meet the higher standard of “novelty”* required by the patent statute, so most designs of useful articles don’t qualify for design patent protection. In recent years, there have been some cases suggesting an expansion of trademark and unfair competition law† to cover the “trade dress” of certain products, but there are still gaps in effective protection.


*Higher patent standard, see p. 128.

†Expansion of unfair competition, see p. 224. 

[186] Mickey Mouse.

These Mickey and Goofy telephones, though utilitarian, would be protectable under copyright, because their character designs can be separated from their utilitarian function.

Micky Mouse and Goofy phones

            Perhaps the strangest application of the doctrine is in the area of two-dimensional depictions of three-dimensional works of utility. If you draw a fashion or car design, for example, it’s an infringement of copyright for someone to copy your drawing to make their own drawing (since there is nothing utilitarian about the drawing); but it is not an infringement for someone to make the dress or car depicted in your drawing (since that is utilitarian). The same rule used to apply to architectural plans, until architectural works were given their own separate protection in 1990.‡


‡Architectural works, see p. 146. 


            Withholding protection of pleasingly designed works of utility is said to be necessary in order to assure that designers don’t use copyright to gain an effective monopoly of functional elements. But some critics argue that in recent years American designers have been losing out to European and other foreign designers of useful articles, partly because the U.S. law is not as protective of designs as is some foreign law. Critics also argue that the works of utility doctrine discriminates against modern design, where form is supposed to follow function. Some of the designers perennially go to Congress asking for some new form of design protective legislation to cover their industrial designs, but such efforts have generally failed. However, designers have had two notable victories in recent years. In 1990, architectural works were granted copyright protection for the first time; and in 1998, boat hull designs were granted a special limited form of protection. What this means is that these special works are protected by copyright even if their artistic elements cannot be separated from their functional elements. Can the car and dress and industrial designers be far behind?


•Boat hull designs, see p. 146.

[Photo of woman modeling a dress,
"The New Look in Arkansas"]

[187] The New Look in Arkansas.

The two-dimensional pattern of a fabric might be protectable under copyright as a two-dimensional image (see the Peter Pan Fabrics case at p. 156). But the three-dimensional design of a dress is not protectable, because it is a work of utility as well as art. Time-Life Books describes the new postwar look that took the world by storm:


In late 1945, less than a year after the last German had decamped, a middle-aged Parisian named Christian Dior sat down and sketched out a handful of outrageously luxuriant dresses. With their swirling skirts twelve inches from the floor, shoulders definitely without padding and bosoms definitely with, they changed every wartime fashion notion that America had so conscientiously observed. . . .


            It then describes the ease and speed with which cheap copies were made:


Three months after Dior presented a New Look creation at $450 in France, wholesale dress manufacturers in New York began cranking out copies like those shown here. Using rayon instead of silk, four elegant flounces instead of eight—and high-speed electric cutters—the mass-production geniuses sewed up a million dresses within weeks. . . . [A]ny woman who wanted the look of Paris, France, could get it in Paris, Arkansas, for $20 or less.


            Neither the law nor the practice has changed much in the intervening fifty-five years.


          The Fact-Expression Distinction


[188] The discovery of facts. 

    [T]he first person to find and report a particular fact has not created the fact; he or she has merely discovered its existence. . . . Census-takers, for example, do not “create” the population figures that emerge from their efforts; in a sense, they copy these figures from the world around them. . . . Census data therefore do not trigger copyright because these data are not “original” in the constitutional sense.
                                -Justice Sandra Day O’Connor,
                                  Feist Publications, Inc.
                                  v. Rural Telephone Service

Facts, like functional aspects of works, are not protected by copyright. The fact-expression distinction is rooted in the requirement that authors may only copyright what they create, what is original to them. For example, in the Feist case,* the entries in a telephone directory were not protected by copyright, because they represented facts that did not owe their origin to the telephone company.


*The Feist case, see p. 129.


            While facts are not protected as such, compilations of facts can be protected, if their selection and arrangement are the result of sufficient originality. The Supreme Court made clear in the Feist  case that the alphabetical listing of telephone subscribers and numbers was not such an original compilation, and so could not be protected against duplication. [188] That case, which held that “originality” could not be found merely in the labor or expense of acquiring and organizing data, raises a serious hurdle to the copyright protection of databases, such as databases of financial or geographical information.


            In 1996, a European Community directive extended special protection to databases in countries of the European Union. But so far, similar efforts in the United States have failed. Since such a database protection gap puts American database companies at a competitive disadvantage, we can expect pressure on Congress to change the law to protect databases.

The Idea-Expression Distinction


Let’s go to the statute: “In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.”


            Many of the traditional examples are actually more properly viewed as examples of the works of utility doctrine just discussed. For example, if someone “discovers” a previously obscure medicine or medical treatment, or invents a previously unknown medicine or technique, and writes a treatise explaining the discovery, the author is protected in the particular words used to explain the process; but the book creates no specific rights in their use. That right may be granted if the process is novel, and the author applies for and receives a patent; but the book itself doesn’t protect the substance of the “discovery.” Similarly, a treatise on relativity or perspective or accounting creates rights in the words used to explain the principles, but doesn’t give any exclusive rights in the use of the principles themselves. These examples could all be explained either [189] because the principles are to some extent “functional,” and therefore not protected under the works of utility doctrine, or because they are “ideas,” separate and apart from any description of the principles.


[188] Patterns of generality.

As Judge Hand explained in the Nichols case:

                    If Twelfth Night  were copyrighted, it is quite possible that a second comer might so closely imitate Sir Toby Belch or Malvolio as to infringe, but it would not be enough that for one of his characters he cast a riotous knight who kept wassail to the discomfort of the household, or a vain and foppish steward who became amorous of his mistress. These would be no more than Shakespeare’s “ideas” in the play, as little capable of monopoly as Einstein’s Doctrine of Relativity, or Darwin’s theory of the Origin of Species

                Upon any work, and especially upon a play, a great number of patterns of increasing generality will fit equally well, as more and more of the incident is left out. The last may perhaps be no more than the most general statement of what the play is about, and at times might consist only of its title; but there is a point in this series of abstractions where they are no longer protected, since otherwise the playwright could prevent the use of his “ideas,” to which, apart from their expression, his property is never extended.

            However, the idea-expression distinction goes beyond just the functional. It also bars copyright of abstract ideas and concepts. Earlier, we looked at the Abie’s Irish Rose case* to illustrate the concept of “substantial similarity.” In that case, Judge Hand concluded that The Cohens and The Kellys, a movie about the love between young Jewish and Catholic lovers, was not substantially similar to the successful Anne Nichols play on the same theme. Another way of reaching the same conclusion is to find that, even though the “idea” or “theme” of the first work may have been copied, the elements taken by the second work were no more than the copyright law allowed.


*Abie’s Irish Rose, see p. 153.


            The idea-expression distinction is most firmly entrenched in the context of factual works, where the doctrine obviously overlaps with the fact-expression distinction. It is quite clear that we don’t want an author to be able to monopolize the “idea” or theory or interpretation of historical events. A. A. Hoehling, for example, developed the theory that the airship Hindenburg,  which caught fire and crashed in 1937, was destroyed by a saboteur. He sued Universal City Studios for making a movie that incorporated some of the same elements as his book. The court found, however, that he could not stop the movie.

[190] The Dillinger Dossier.
In a series of books, the writer Jay Nash developed the hypothesis that John Dillinger was not the man shot in front of the Biograph Theater in Chicago in 1934. In 1984, CBS broadcast an episode of Simon and Simon  that was based upon this same hypothesis. Nash sued CBS for copyright infringement. The Seventh Circuit Court of Appeals found that there was no infringement, saying:

     Nash does not portray The Dillinger Dossier and its companion works as fiction, however, which makes all the difference. The inventor of Sherlock Holmes controls that character’s fate while the copyright lasts; the first person to conclude that Dillinger survived does not get dibs on history. If Dillinger survived, that fact is available to all. Nash’s rights lie in his expression; in his words, in his arrangement of facts (his deployment of narration interspersed with interviews, for example), but not in the naked “truth.” The Dillinger Print does not use any words from The Dillinger Dossier or Nash’s other books; it does not take over any of Nash’s presentation but instead employs a setting of its own invention with new exposition and development. Physical differences between Dillinger and the corpse, planted fingerprints, photographs of Dillinger and other gangsters in the 1930s, these and all the rest are facts as Nash depicts them.


[Image of Hindenburg disaster removed,
due to claim by Getty Images
that they own the image.
image 70000559]


[189] The Hindenburg disaster. 

    [T]he hypothesis that Eric Spehl destroyed the Hindenburg  is based entirely on the interpretation of historical facts, including Spehl’s life, his girlfriend’s anti-Nazi connections, the explosion’s origin in Gas Cell 4, Spehl’s duty station, discovery of a dry-cell battery among the wreckage, and rumors about Spehl’s involvement dating from a 1938 Gestapo investigation. Such an historical interpretation, whether or not it originated with Mr. Hoehling, is not protected by his copyright and can be freely used by subsequent authors.
                              -The Second Circuit Court of Appeals
                                 in the Hindenburg case.

The Hindenburg  disaster, described on live radio by Herb Morrison on May 6, 1937, brought an end to the luxury zeppelin travel of the day.

Of course, the trick for all of these general principles limiting copyright is to come up with a test for distinguishing between protectable expression on the one hand, and unprotectable function, fact, or idea, on the other. While the principles are theoretically clear, the distinctions can be frustratingly complex in particular cases. A sense of the law can be derived by looking at how the courts have decided particular cases, but summarizing the range of factors can be frustrating for both teachers and students of the law.



Fair Use


Bion Smalley - fair use cartoon

[190] Cartoon by Bion Smalley.

[192] Examples of fair use.
The House Report to the Copyright Act cites the following examples to “give some idea of the sort of activities the courts might regard as fair use under the circumstances:”

     quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations; . . . summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.

These examples may suggest a rather limited role for fair use.

Even if a work meets the tests of copyrightability (“originality” and “fixation,” for a category of work entitled to protection under the statute),* and even if it’s found that someone has apparently infringed (by violating one of the exclusive rights with a “substantially similar” copy),† and even if it’s found that the use is not within one of the other exceptions or limitations on copyright (functionality, facts, idea, or any of the other specific limitations), there’s still one final hurdle that the copyright owner must pass before enforcing rights against someone who copies. This hurdle is the “fair use” defense. This flexible defense protects users for what might otherwise be considered relatively minor or technical violations, or violations that for policy reasons we don’t think should lead to copyright liability.


*Copyrightability, see chapter 6.

†Infringement, see chapter 7.


[191]    First developed by judges to decide individual cases, the defense is now authorized by the copyright statute itself. Although the term “fair use” is not defined, it is fleshed out by the following statutory “factors”:


[T]he fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means . . . for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use factors to be considered shall include—


(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;


(2) the nature of the copyrighted work:


(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and


(4) the effect of the use upon the potential market for or value of the copyrighted work.


The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.


[192]    This is not to say that the fair use analysis is straightforward. In fact, of the cases that have made it to the Supreme Court, the typical pattern is a district court decision reversed by an appellate court reversed again by the Supreme Court, usually by a split decision, frequently 5 to 4. Reasonable people may certainly, maybe even inevitably, disagree in many of the cases where fair use has been called upon to distinguish between permissible use and copyright infringement.


            A few examples will illustrate the range of what might be considered fair use.

Seinfeld SAT

Seinfeld Universe

[191] What’s the difference?

The difficulties of predicting exactly how cases will come out under the “substantial similarity” test of the last chapter, or the “fair use” test of this chapter, is illustrated by two Seinfeld  books. The first was found to be infringing on the Seinfeld  program; the second was published a few years later by the same publisher, but apparently would not be considered infringing. What’s the difference? The court concluded that, in the first book, “every question and correct answer has as its source a fictional moment in a Seinfeld episode.” A recognizable portion of dialogue was repeated verbatim. (The nature of the book was given away in the cover description of the “minute details” to be found inside.) According to the court, the book simply took too much, and was not excused as fair use because the purpose was not to comment on or to parody the original, but simply to cash in on the popularity of the series.




There’s a long tradition protecting parody as a fair use, even though it’s not specifically mentioned in the statute, if the parody otherwise seems reasonable under the four statutory factors. Here are some examples of what has been found to be within the ambit of fair use: From Here To Obscurity,  a Sid Caesar television takeoff of the movie From Here to Eternity;  MAD     Magazine parody lyrics to be sung to the tunes of famous songs (such as “The First Time I Saw Maris,” sung to the tune of “The Last Time I Saw Paris”); “I Love Sodom,” a Saturday Night Live  spoof of the New York jingle, “I Love New York”; and an advertising poster for Naked Gun 33-1/3, showing Leslie Nielson in a pregnant spoof of the Annie Leibovitz photograph of Demi Moore on the cover of Vanity Fair.


[Vanity Fair cover of August 1991,
showing Annie Leibovitz photo
of pregnant Demi Moore.
Click here and scroll down to see a copy.]

[Doctored ad showing Leslie Nielsen
in pregnant pose, imitating
Demi Moore.
Click here and scroll down to Naked Gun 33-1/3
to see a copy.

[Cover of Spy Magazine
showing a doctored image
of Bruce Willis imitating
the same pose]

[191] Everybody’s getting into the act!

Left, the Annie Leibovitz photograph of a pregnant Demi Moore for the cover of Vanity Fair  magazine. Center, the spoof photo of Leslie Nielsen in an advertisement for the movie Naked Gun 33-1/3. A court held the spoof to be a fair use. At right, yet another spoof, on the cover of Spy  Magazine, in which Bruce Willis (at the time Demi Moore’s husband) was at least allowed to keep his own arms and hands. The Leslie Nielsen ad arguably took more from the original than was necessary to “conjure up” the original—the image was not scanned from the Demi Moore image exactly, but the part of the photo taken from an actually pregnant woman was digitally processed to make it pretty much identical to the Annie Leibovitz original.


            Not all examples of parody qualify for the exemption, however. In some cases, courts have found that purported parodies did not qualify for protection under the fair use doctrine, and thus constituted copyright infringement. Among these are Autolight, a Jack Benny television takeoff of the movie Gaslight;  Air Pirates Funnies, a 1970s counterculture spoof of Walt Disney comic books; Jeff Koons’s String of Puppies, a sculpture [193] lifted from an Art Rogers photograph of Jim Scanlon and his wife with their eight German shepherd puppies; and a book using Dr. Seuss characters and style to tell a purportedly humorous version of the O.J. Simpson story.


[Postcard of Art Rogers' photograph,
String of Puppies, showing man and
woman holding 8 dogs.]

[Photo of Jeff Koons' sculpture depicting
Art Rogers' photo.]

[Click here and scroll down for a rough copy of the two images.

[194] Appropriation art.

Above left, Art Rogers’s 1980 photograph, which had been exhibited in museums and distributed on a 1984 notecard. Above right, a sculpture by the “appropriation artist”(!) Jeff Koons, which the court held was not a fair use, but a copyright infringement. Koons did not execute the sculpture himself, but instead gave detailed instructions to his European studios to copy the photograph. Three of the sculptures were sold to collectors for a total of $367,000, and a fourth retained by Koons. Koons has lost other copyright suits as well, including one for the copyright in “Odie,” from the Garfield comic strip. Right, the infringing Koons sculpture, Wild Boy and Puppy.

[Photo of Jeff Koons' sculpture
of "Odie"]

Why do some parodies qualify for protection and others not? To the frustration of some observers, the courts generally refuse to articulate any clear dividing lines, instead emphasizing that fair use is an “equitable” doctrine to be decided on a case by case basis with a detailed weighing of all of the statutory fair use factors. In fact, the appellate courts reverse lower courts if they conclude that the lower courts have allowed one factor to be given too much weight over the others.


Cat in the Hat

Simpson spoof

[195] Dr. Seuss?

At left, excerpts from Dr. Seuss; at right, a so-called parody making fun of the O. J. Simpson case. One of the points made by the court in finding that this was not a fair use was the fact that it parodied the O. J. Simpson case, not really Dr. Seuss. Thus, there was less need to “take” the Dr. Seuss original.  The printing of the book was enjoined; but the words, if not the images, survive on the Internet. Do a search on “Simpson” and “Seuss” and see how many people seem to think this parody is funny or otherwise worth distributing on their Web sites.

[Image from Dr. Seuss's
reen Eggs and Ham, showing
a creature carrying a tray
with two eggs and a ham]

[Image from the so-called parody,
showing a man holding up a tray
with a dirty, presumably bloody, glove]


            Judge James Carter, who decided both the Jack Benny and the Sid Caesar cases in the district court, felt that the important distinguishing feature in those cases was in the amount taken. Jack Benny simply took too much from the original movie—the locale and period, the main setting, the characters, the story points, the development of the story, the incidents and sequence of events, the points of suspense, the climax, and much of the dialogue, although the story was of course a burlesque of the original, with gags added throughout. Sid Caesar’s spoof, on the other hand, had parallels to the original movie, but transformed it substantially. The judge found that “There is no substantial similarity between said [194] burlesque and said motion picture as to theme, characterizations, general story line, detailed sequence of incidents, dialogue, points of suspense, subclimax or climax.” If you want to make an informed judgment on your own, I suggest that you see the movie and the spoof, both of which are available on videotape.


[Movie still from
From Here to Eternity
showing Montgomery Clift
playing a bugle in a bar.
Click here and scroll down for a copy.]

[Movie still from
showing Charles Boyer tied
in a chair by Ingrid Bergman.
Click here and scroll down for a copy.]

[Still from
Your Show of Shows,
showing Sid Caesar in soldier's
uniform, with a goofy grin, holding a bugle]

[Still from
The Jack Benny Show,
showing Jack Benny in
tied in a chair by Barbara Stanwyck]

[196] From Here To Obscurity.  

Above, Montgomery Clift played a former boxer who wanted to bugle, not fight, opposite Frank Sinatra in the Oscar-winning movie From Here To Eternity. Below, Sid Caesar played a humorous version, From Here to Obscurity, with Carl Reiner and Howard Morris (and, not shown, Imogene Coca). The skit has been described as “one of the best remembered skits” from Your Show of Shows. The courts held that the spoof was not a copyright infringement.

[196] Gaslight  and Autolight.

Above, Charles Boyer and Ingrid Bergman in the classic movie Gaslight. Below, Jack Benny and Barbara Stanwyck in the spoof, Autolight. The court made it sound as if the spoof was just silly, and not very funny. (Calling a parody not funny is the kiss of death for a parody defense.) But the plot is about a man trying to drive his wife insane, and it’s possible that silly things can do that, or that the Benny parody was making fun of how illogical and silly the things were that Boyer was doing to drive his wife mad. (Note the upside-down picture in the background.)

While the courts generally allow a parodist to copy as much as is necessary to “conjure up” the target of the spoof, I’m impressed with how little actually has to be taken in order to create a clever parody. Watch just about any episode of the Animaniacs, the Muppets, or The Simpsons, and you’ll see clever spoofs—cultural references—to great movies like [195] The Great Escape  or The Godfather  or hundreds of other movies, television programs, or commercials. The references go over the heads of the younger viewers, but help the shows appeal to an older audience that “gets” and appreciates the references.


[197] More MAD.
Here’s an example of the MAD  Magazine parody lyrics that were held to be a fair use: the words to the original, “The Last Time I Saw Paris,” are at the left, and the words to MAD’s parody, “The First Time I Saw Maris,” on the right. The beauty of the parody is that MAD  Magazine never actually copied any copyrighted work: the words were different, and, although the reader was invited to sing the parody to the original tune, the tune was not copied by the magazine.
[The book contains all four verses of the lyrics to both songs.. I only reproduce the first verses here.]

The last time I saw Paris
Her heart was warm and gay,
I heard the laughter of her heart
In ev’ry street cafe.

The first time I saw Maris

He’d signed up with the A’s!

He slugged the ball but never found

How big league baseball pays!


            Maybe the cartoonists who made the “Air Pirates” (p. 198) went too far precisely in their lack of subtlety. In that case, the appellate court disallowed the fair use defense, emphasizing that “given the widespread public recognition of the major characters involved here . . . very little would have been necessary to place Mickey Mouse and his image in the minds of the readers” to “conjure up” the original being spoofed. The court also [197] concluded that “when the medium involved is a comic book, a recognizable caricature is not difficult to draw, so that an alternative that involves less copying is more likely to be available than if a speech, for instance, is parodied.”


            Yet, the degree of similarity, the “amount taken,” cannot be the only factor here. There have been other instances in which Mickey has been spoofed just as graphically as in the “Air Pirates” case. For example, MAD     Magazine has spoofed Disney characters, as well as just about every other cultural icon around. And yet MAD  generally is not sued, or wins lawsuits brought against it. How does MAD  Magazine get away with it?


            It’s all in the setting. The MAD  Magazine spoof is contained in a publication that is obviously a parody, and that, for all its pretensions at being outrageous, [199] is fairly gentle in its style. Many copyright owners think it’s a compliment to be parodied by MAD.  The “Air Pirates” comics, on the other hand, were underground comic books depicting Disney characters in bawdy or drug-related activities. The covers of the first two comics were deceptive, in that they might even be mistaken for legitimate Disney publications (Mickey’s “real” name was used). The “Air Pirates” announced their intention to continue publishing their comics, so that they were an ongoing threat to Disney. No wonder, then, that Disney asked for, and got, impoundment and destruction of all of the comics still in the defendant’s possession.


Air Pirates Funnies

Mickey Mouse - mail pilot

[198] Pirates!

Although not emphasized in the case, the “Air Pirates” comics not only “took” the Disney characters; some of the story lines and even frames were duplicated almost precisely. The cover of the first “Air Pirates” issue (above) was lifted from a particular Disney “Big Little Book” cover (1933) (above right); and the name “Air Pirates” would be recognized, by those who remembered it, as a variation on the “Mail Pilot” comic strip, book and movie short.

[198] This Side of Parodies.

Right, the Bill Elder MAD  Magazine spoof of Mickey. In defense of such parodies, Harvey Kurtzman of MAD  stated, “Will understood parody. Of course what it is, is mimicry. Willy was just so good at it. He understood that you had to have an exact duplicate of what you’re parodying.” A similar argument in the “Air Pirates” case was rejected by the court.


            But how can you capture all of these elements in a precise definition of fair use? No formulation of the rule can anticipate the wide range of potentially legitimate activities, and yet adequately capture the fine distinctions. Fair use “factors” are about all that we can expect, plus a sensitivity of the courts to the nuances of the particular cases.


[200]    It may be that the pendulum in this area is currently swinging in favor of parodists. A recent Supreme Court case considered 2 Live Crew’s rap version of Roy Orbison’s musical hit, Pretty Woman. The Court emphasized the “transformative” nature of parody, and implied that the work in that case was sufficiently transformative to meet the test. Interestingly, the Court did not find that the spoof was a fair use, instead remanding the case for the lower courts to make their own determination. In a bit of overstatement, the press’s general description of the case was that it “found” the 2 Live Crew song to be a fair use. In any event, the language of the opinion makes clear the Court’s tolerance for parodies, and it would be a bold lower court or law professor who would ignore the Court’s language about the wide berth to be given to parodies under the fair use doctrine.


[199] As Clean As They Wanna Be?

Left, the 2 Live Crew album cover. This album is about the only 2 Live Crew album that doesn’t contain explicit lyrics; and the banner announcing that fact covered the barer parts that were more explicitly displayed in their Dirty As They Wanna Be album. This particular copy was bought some time after the circuit court had held 2 Live Crew’s version of “Pretty Woman” to be an infringement, and before the Supreme Court reversed that decision. During this period, the “Pretty Woman” track was removed from the album, but the credits on the back cover, shown below right, still curiously listed Roy Orbison, William Dees, and Acuff-Rose with an asterisk. Pity the poor fan trying to figure out what that referred to—or the poor law professor who couldn’t find the infringing track. And if Orbison and his estate didn’t approve of 2 Live Crew, imagine the embarrassment at the implication that Orbison had been involved in the writing and publishing of the album!

2 Live Crew

2 Live Crew

Compromise on Public Policy Grounds


            The fair use doctrine is also available as a tool for deciding difficult cases involving new situations and raising major policy concerns that have not otherwise been specifically addressed by Congress. It can serve as something of an “escape valve” when literal application of the law would otherwise lead to undesirable results. For example, we’ve seen how fair use has been used to analyze the difficult issues raised by the educational photocopying* of copyrighted materials.


*Library photocopying, see p. 20; classroom photocopying, p. 25.


             In the Betamax case, the Supreme Court invoked the doctrine to hold that the Sony Corporation, makers of the Betamax video recorder, was not liable for copyright infringement when users of its machines made unauthorized copies of copyrighted works.† As part of its decision, the Court held that the home recording of television programs, which were otherwise delivered to homes for free over the public airwaves, for the purpose of “time-shifting”—viewing at another time, after which the copy is erased—did not constitute copyright infringement because it qualified as a fair use. The Court did not say that all copying of programs in the home—particularly the “librarying” of programs to be viewed more than once—was a fair use; but since the court found that there was at least some legitimate, noninfringing use for video recorders, Sony wouldn’t be held liable for the potentially infringing actions that others might undertake.


†The Betamax case, see p. 66.


[201]    Another fascinating technology case involved the copying of a Sega game cartridge by Accolade, Inc. Here’s what happened: Sega made the popular Genesis game system, which, together with Nintendo and later Sony systems accounted for the vast majority of game systems bought by millions of kids throughout the world. Selling the game machines was only half the road to success, however—the real money was in selling the game cartridges to run on the system. In order to assure that only it or its licensees sold such cartridges, Sega built into its console a system that would check to see if cartridges contained the appropriate code indicating that the cartridge was authorized to run on the system.


            In order to produce compatible programs, Accolade did the following. First, it “reverse engineered” several existing Sega cartridges. It copied the programs contained on the cartridges, and “disassembled” the object code to produce printouts of the source code. It studied the source code of the different game cartridges to see what parts of the code were present on all of the cartridges. It was thus able to determine the appropriate short code that had to be on any cartridge to make it run on a Sega Genesis console. Accolade did not copy any of Sega’s actual games, but it did copy the short code—about 20-25 bytes—which was necessary to trick the Sega Genesis console into “thinking” that the Accolade cartridges were licensed, and therefore run the Accolade programs—Ishido, Star Control, Hardball, Onslaught, Turrican, and Mike Ditkas Power Football—on the Sega console.


            Sega sued for copyright infringement. Because the amount of actual code taken, the 20-25 bytes, was arguably minimal, and arguably entirely functional, Sega chose in its suit to focus upon Accolade’s “intermediate” copying, arguing that the intermediate copies that Accolade had admittedly made were infringing copies of Sega’s copyrighted game cartridges. Accolade raised several defenses, most of which were rejected. However, the appellate court accepted Accolade’s fair use argument. The court held that “disassembly of copyrighted object code is, as a matter of law, a fair use of the copyrighted work if such disassembly provides the only means of access to those elements of the code that are not protected by copyright and the copier has a legitimate reason for seeking such access.” Accordingly, the court dissolved the preliminary injunction that had been granted by the lower court, and allowed Accolade to continue selling its Sega-compatible game cartridges.


[202]    Implicit in the court’s holding is the assessment that Accolade’s goal of creating Sega-compatible cartridges was a valid one, supported by public policy. The court pointed out that


Accolade’s identification of the functional requirements for Genesis compatibility has led to an increase in the number of independently designed video game programs offered for use with the Genesis console. It is precisely this growth in creative expression, based on the dissemination of other creative works and the unprotected ideas contained in those works, that the Copyright Act was intended to promote. . . . [Sega’s] attempt to monopolize the market by making it impossible for others to compete runs counter to the statutory purpose of promoting creative expression and cannot constitute a strong equitable basis for resisting the invocation of the fair use doctrine. . . . Because Sega’s video game programs contain unprotected aspects that cannot be examined without copying, we afford them a lower degree of protection than more traditional literary works.


            The case did not hold Sega’s copyright in its cartridges invalid. Sega could clearly prevent any other company from pirating and selling copies of its game cartridges. But Accolade produced its own original games, which did not copy Sega’s. Under the unique facts of the case, the intermediate copying that Accolade had to do in order to make Sega-compatible games, and the minimal amount of code that it actually had to take in order to make its cartridges work on the Sega console, were excused under the fair use doctrine.


            In addition to the technology setting, the “public interest” occasionally excuses what would otherwise be a copyright infringement. Perhaps the best example is the case involving the Zapruder movie* of the Kennedy assassination—the most explicit movie footage of that important historical event. The movie was copyrighted by Abraham Zapruder and immediately sold to Time, Inc. Josiah Thompson made unauthorized drawings of many of the frames in order to illustrate his analysis in the book Six Seconds in Dallas. When Time, Inc. sued for copyright infringement, the court identified the public interest as overriding the rights of the copyright owner, in the context of a complete analysis under the standards of fair use.


*The Zapruder case, see p. 143.


Zapruder film

[203] Six Seconds in Dallas.

Above, a frame from the Zapruder film, reprinted in Life  magazine, October 2, 1964. Below, a sketch of Zapruder frame 237, about five frames later in the sequence, reprinted in Josiah Thompson’s book, Six Seconds in Dallas. In the book, the author and the publisher made clear that they had sought permission to use the actual Zapruder frames, but had been refused. They apparently felt that the use of sketches instead of actual film footage avoided their liability under the Copyright Act. That’s clearly not true, is it? But the court did ultimately find in their favor based upon the fair use doctrine and the strong public interest in allowing this limited use of the work.

Zapruder film - copy


            This does not mean that every work on a matter of public interest should get a fair use free ride. For example, in the Harper & Row case,* [204] The Nation  had argued that fair use gave it the right to publish excerpts from former President Ford’s A Time To Heal prior to its authorized “first serialization” in an exclusive Time  magazine article.  The Supreme Court held that the lifting of three to four hundred words was not excused by fair use, but instead constituted an infringement of the author’s and Harper & Row’s copyright. The public interest did not require the taking, since Ford and Harper & Row were already in the process of trying to get the work to the public. As stated by Justice O’Connor in that case, “[I]t should not be forgotten that the Framers [of the Constitution] intended copyright itself to be the engine of free expression. By establishing a marketable right to the use of one’s expression, copyright supplies the economic incentive to create and disseminate ideas. . . .” Justice O’Connor cites Lionel Sobel for the proposition that “If every volume that was in the public interest could be pirated away by a competing publisher, . . . the public [soon] would have nothing worth reading.”


*Harper & Row, see p. 155.




We’ve now seen so many doctrines limiting copyright that it’s hard to believe that copyright owners ever win lawsuits at all. Between the difficulties of discovering violations highlighted in chapter 5, and the limitations on enforcing rights highlighted here, there are certainly a lot of hurdles along the way. Maybe that’s the reason Congress grants such broad rights (outlined in chapter 7), to those copyright owners who are successful in navigating the hurdles—to compensate successful copyright owners for the difficulties in enforcing their rights.


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Go to Chapter 9: Other Major Copyright Principles

Permission, Limitations, and Format