BY:
Neil J. Rosini, Michael I. Rudell(Originally published in the Entertainment Law column of the New York Law Journal, February 22, 2007)
Carol Burnett and the characters she portrayed from 1967 to 1978 in her highly successful television series, “The Carol Burnett Show,” remain forever lodged in the memories of devotees. Counting on that sustained familiarity almost 30 years later, the producers of the animated television series, “Family Guy,” on the Fox television network, used an animated figure resembling one of those characters in a crude parody replete with sexual innuendo, accompanied by an altered version of the Burnett program’s theme song.1
Burnett individually and Whacko, Inc., which claimed ownership of copyright in the music and the character (known as the “Charwoman”), brought suit against 20th Century Fox Film Corporation in the U.S. District Court for the Central District of California. They alleged that the “Family Guy” episode infringed their copyright in the character and music and violated the Lanham Act as well as California’s statutory right of publicity and common law misappropriation of name and likeness. Moreover, they pleaded that their own cartoon version of the character (also a “dusty maid… distinguished by her blue bonnet, bucket and mop”) was a trademark of the show and of Ms. Burnett.
Several months ago, in Burnett v. Twentieth Century Fox Film Corporation, 491 F.Supp.2d 962 (C.D. Cal. 2007), the Court granted the defendant’s motion to dismiss the complaint for failure to state a claim. It joined a number of other decisions that have addressed the fair use defense in the context of unflattering, crude parodies while refusing to let the question of good or bad taste enter into the analysis.
Fair Use Prevails
The weekly series “Family Guy” follows the exploits of the Griffin family and friends in the fictional suburb of Quahog, Rhode Island. The series routinely puts cartoon versions of celebrities in awkward and absurd situations in order to lampoon and parody those public figures and poke fun at society’s general fascination with celebrities and pop culture.
In the episode in issue, entitled “Peterotica” that aired in 2006, Peter Griffin, an “Archie Bunker”-like character, enters a porn shop with his friends. Responding to Peter’s remark that the shop is cleaner than he expected, one of his friends explains that “Carol Burnett works part time as a janitor.” Next appears for fewer than five seconds an animated figure resembling the “Charwoman,” mopping the floor next to seven “blow-up dolls,” a rack of “XXX” movies, and a curtained room with a sign above it reading “Video Booths,” accompanied by an altered version of Carol’s Theme. Thereafter one of Peter’s friends remarks, “You know, when she tugged her ear at the end of the show, she was really saying goodnight to her mom.” Another friend responds, “I wonder what she tugged to say goodnight to her dad.”
Assuming that the plaintiffs owned valid copyrights in the Charwoman and Carol’s Theme, the Court addressed whether or not the fair use defense in Section 107 of the Copyright Act protected the segment by applying the statutory four-part balancing test.
Addressing the first of the four factors, the “purpose and character of the use,” the Court asked whether the challenged use supersedes the objects of the original creation “or instead adds something new, with a further purpose or different character, altering the original with new expression, meaning or message” — in other words, whether and to what extent the use is “transformative.” By definition, parody possesses transformative value that “can provide social benefit, by shedding light on an earlier work.” However, the plaintiff’s copyrighted work at least in part must be the target of the defendant’s barb.
The plaintiffs argued that the use of the Charwoman in “Family Guy” was not parody “in the strict legal sense” because the target was not the Charwoman character but rather Carol Burnett and her “wholesome image.” They asserted that the placement of the Charwoman in the role of the janitor in an erotic store was “neither ‘absurd’ nor ‘transformative’” because “one could easily imagine a charwoman cleaning the floor of a porn shop.” Secondarily, they argued that the defendant’s version of the Charwoman was virtually a literal copy of the plaintiffs’, which made it insufficiently transformative.
The Court rejected these arguments because it was immaterial whether the target of the joke was Burnett, “The Carol Burnett Show,” the Charwoman, Carol’s Theme or all four, if a parody could “reasonably be perceived.” Here, the use was parodic: clearly designed to imitate “the characteristic style of an author or a work for comic effect or ridicule” and executed in a manner that “the characteristic turns of thought and phrase for a class of authors are imitated in such a way as to make them appear ridiculous” (citations omitted). The first factor weighed in favor of fair use.
Addressing the second balancing factor, the “nature of the copyrighted work,” the Court observed that “some works are closer to the core of intended copyright protection than others, with the consequence that fair use is more difficult to establish when the former works are copied.” Because parodies almost always copy well-known expressive works, however, this factor is of little help in resolving parody cases and the Court accorded it “no great weight.”
The third factor, “the amount and substantiality of the amount used,” weighed in favor of fair use. Although parodists can take enough of the original to “conjure up” the object of its critical wit, there is “no requirement that ‘parodists take the bare minimum amount of copyright material necessary to conjure up the original work” — as long as the parody does not function as a market substitute for the original (citations omitted, emphasis original). The plaintiffs argued that the defendants took more than necessary, but the Court was not persuaded. Both the Charwoman and music were on screen for fewer than five seconds, which compared favorably to other cases where the fair use defense prevailed – one with a 29-second song parody and another with an 18-second song parody. The Court concluded that “Family Guy” took just enough to make this “crude depiction” recognizable to viewers.
The fourth factor – “the effect of the use upon the potential market for or value of the copyrighted work” – was also decided in the defendant’s favor because “commercial substitution [was] not likely in this case.” The market demand for a non-parodic use of the Charwoman would not be fulfilled by the character’s appearance in front of “blow-up” dolls and “XXX movies.”
The Court concluded that the four factors weighed strongly in favor of a fair use defense and dismissed the copyright claim along with the rest of the complaint, without leave to amend. (The Court dismissed the plaintiffs’ Lanham Act claim because it found “no likelihood that viewers would be confused by defendant’s use of the Charwoman character and because the defendant’s parodic work was considered non-commercial speech and, therefore, not subject to any trademark dilution claim.” Lastly, the Court refused to exercise supplemental jurisdiction over the state claims.)
The Question of Taste
With regard to the tastefulness of the “Family Guy” segment, the Court used the adjective “crude” in a variety of phrases, including “crude depiction,” “crude joke,” and “crude parody.” The Court also called the segment “distasteful and bizarre, even outrageous and offensive.” But taste was not allowed to determine the result because “taste does not and should not matter to fair use.” Quoting from Hustler Magazine v. Falwell, 485 U.S. 46 (1988), the Court declared that “[c]riticism of figures as universally recognized as Carol Burnett ‘will not always be reasoned or moderate,’ and may come in the form of ‘vehement caustic and sometimes unpleasantly sharp attacks.’” And whether or not use of the Charwoman in “Family Guy” inflicted harm on the good will and reputation associated with the plaintiffs’ work was of no moment because a “parody may quite legitimately aim at garroting the original, destroying it commercially as well as artistically. ” In fact, “destructive” parodies “play an important role in social and literary criticism” and merit protection even if they are discouraging or discrediting to an author. (In support, the Court cited Fisher v. Dees, 794 F.2d 432 (9th Cir. 1986), in which a “nostalgic ballad” entitled “When Sunny Gets Blue” that concerned “a woman’s feelings about lost love and her chance for … happiness again,” was the target of a fair-use-protected parody entitled “When Sunny Sniffs Glue.”)2
This holding that tastefulness is irrelevant in a fair use analysis is consistent not only with Fisher, but also with a number of other cases across the past 30 years cited in the Burnett opinion, that involved crude parodies, including some in which fair use protection was denied.
The most influential decision is Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994) in which the plaintiffs alleged that 2 Live Crew’s song “Pretty Woman” infringed Roy Orbison’s rock ballad, “Oh, Pretty Woman.” The 2 Live Crew song copied the original’s first line, but then “quickly degenerate[d] into a play on words, substituting predictable lyrics with shocking ones …. [that] derisively demonstrated how bland and banal the Orbison song seemed to them.” The dissent at the Court of Appeals level said that the song “reminds us that sexual congress with nameless streetwalkers is not necessarily the stuff of romance and is not necessarily without its consequences…[H]ere there is no hint of wine and roses.”
But having found that the 2 Live Crew song criticized the original, the Supreme Court refused to ”take the further step of evaluating its quality.” In support, the Court quoted the explanation of Justice Holmes: “[i]t would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of [a work], outside of the narrowest and most obvious limits. At the one extreme some works of genius would be sure to miss appreciation. Their very novelty would make them repulsive until the public had learned the new language in which the author spoke.” Said the Court, “[w]hether … parody is in good taste or bad does not and should not matter to fair use.”
In Walt Disney Productions v. Air Pirates, 581 F.2d 751 (9th Cir. 1978), another memorable fair use case about a crude parody, “an ‘underground’ comic book” placed “several well-known Disney cartoon characters in incongruous settings where they engaged in activities clearly antithetical to the accepted Mickey Mouse world of scrubbed faces, bright smiles and happy endings.” Instead, the parody presented “a rather bawdy depiction of the Disney characters as active members of a free thinking, promiscuous, drug ingesting counterculture.” The Court refused the fair use defense because of “excessive copying” – tastefulness was not analyzed.
The Burnett decision also cited at various points other copyright cases about crude parodies, in which the presence absence of good taste was not weighed in the fair use balancing test:
• Lucasfilm v. Media Market Group, 182 F. Supp.2d 897 (N.D. Cal. 2002). Injunctive relief was denied on fair use grounds to block a pornographic version of “Star Wars” entitled “Starballz.”
• Mattel v. Walking Mountain Products, 353 F.3d 792 (9th Cir. 2003). The fair use defense was upheld for parodic photographs that “depicted Barbie in various absurd and often sexualized positions.”
• Dr. Seuss Enterprises v. Penguin Books, USA, 109 F.3d 1394 (9th Cir. 1997). The subject of the analysis was a “poetic account of the O.J. Simpson double murder trial” entitled “The Cat NOT in the Hat! A Parody by Dr. Juice” that borrowed from the “Cat in the Hat” series by Dr. Seuss. The fair use defense failed here, however, because the use was held not to parody the plaintiff’s works.3
Conclusion
Toward the end of the Burnett decision, the Court referred to Ms. Burnett as “an icon in American culture” who was “well-known, respected and beloved by a large segment of the American public.” It sympathetically acknowledged “how distasteful” and “offensive” and “understandably disheartening” the segment appeared to her, and recalled nostalgically when “when crude jokes and insensitive, often mean spirited, programming was perhaps found in live night club performances but was not present on television.” And encouragingly, the Court observed that “it takes far more creative talent to create a character such as the ‘Charwoman’ than to use such characters in a crude parody.” Nevertheless, as the Court flatly concluded, “the law, as it must in an open society, provides broad protection for the defendant’s segment.”4
1 A copy of the “Family Guy” clip can be found at the “Smoking Gun” website with the plaintiffs’ complaint:
http://www.thesmokinggun.com/archive/years/2007/0316072carolburnett1.html.
2 The Ninth Circuit rejected the plaintiffs’ argument in Fisher that the parody was obscene and immoral and therefore unprotected by the fair use doctrine, while assuming without deciding that “an obscene use is not a fair use.” Crudeness apparently has its limits.
3 The Burnett decision also cited Hustler Magazine v. Falwell, 485 U.S. 46 (1988), in which the issue was not whether fair use applied but rather the viability of a claim for intentional infliction of emotional harm allegedly inflicted by a parodic advertisement that portrayed the plaintiff, a nationally known minister and commentator on politics and public affairs, as having engaged in a drunken incestuous rendezvous with his mother in an outhouse. The Supreme Court held that “outrageousness” in the area of political and social discourse was inherently subjective for juries and could not form the basis for the award of damages under First Amendment principles.
4 The irony of the Burnett suit was not lost on commentators, who recalled the parodic sketches (albeit tasteful) for which “The Carol Burnett Show” was famous, such as its “Gone with the Wind” parody in which Ms. Burnett descended a grand stairway wearing a dress made not only from the fabric of the mansion’s curtains, but also the curtain rod.