has been renewed before bothering to investigate
The Copyright Office says that the notice
whether this exemption applies. Note, however,
must be filed more than once during the
that most works first published outside the United last 20 years of the work’s copyright life.
States before 1963 didn’t have to be renewed. (See However, it has yet to decide how often.
Chapter 9 for detailed discussion.)
The notice must be signed under penalty
of perjury. This means that if you claim in
the notice that the work you own is subject
Notice to libraries and archives
to normal commercial exploitation or can
Copyright owners who own works in their
be obtained at a reasonable price, it must be
last 20 years of copyright protection are
true. Don’t lie in order to prevent libraries
al owed to file a notice with the Copyright
from making free copies of your work.
Office stating that the work is subject to
The Copyright Office will place the
normal commercial exploitation or that a
information contained in all the notices
copy can be obtained at a reasonable price. If it receives in its online database called the such a notice is filed, a library or archive may COHD file. This may be searched online
not utilize the exemption discussed here.
through the Copyright Office website at
The Copyright Office has created a form
www.copyright.gov. Before relying on
for this purpose cal ed Form NLA. You can
this exemption, a library or archive should
download a digital copy from the Copyright search this database to see if a notice has
Office’s website at www.copyright.gov/forms/ been filed covering the work or works the
nla.pdf. However, the Copyright Office wil library wants to copy.
not send you a hard copy of the form. Form
NLA may be filed any time during a work’s
last 20 years of copyright protection. The
Other Fair Uses
notice must be accompanied by a $50 fee
Fair use is not limited just to quotations and
for the first work covered, and an additional photocopying. Discussed below are some
$20 for each additional work covered by
other types of uses that may be fair uses.
the notice. Include a check payable to the
Register of Copyrights. The notice and fee
Parody
should be sent to:
Library of Congress
A parody is a work of fancy that ridicules
Copyright Office
another, usual y wel -known, work by
101 Independence Avenue, SE
imitating it in a comic way. Peruse the humor
Washington, DC 20559-6000
section of your local bookstore and you’l
Attn: NLA
find many examples, such as parody versions
of wel -known magazines like Cosmopolitan
272 | THE COPYRIGHT HANDBOOK
(cal ed Catmopolitan). Someone has even
an author’s preexisting work needed to be
published a parody of the SAT exam cal ed the copied in order to create a new work that,
“NSAT” (No-Sweat Aptitude Test) and a book at least in part, comments on or criticizes
of parody sequels to famous literary works,
the prior author’s work. However, a self-
including titles such as A Clockwork Tomato,
proclaimed parodist who copies a prior
2000: A Space Iliad, and Satanic Reverses.
work merely to get attention or to avoid the
To parody a work, it is usual y necessary to drudgery in working up something fresh
use some of the original work’s expression, so has a weak claim to fair use.
that readers will be able to recognize what’s
Does it matter that a parody might be
being parodied. However, it is rarely possible
seen to be in bad taste? The Supreme Court
to get permission to parody or satirize some-
said no. All that matters is that the work
one else’s work. Thus, parodies can exist only can reasonably be perceived to contain
because of the fair use doctrine. Recognizing
a parodic element—in other words, it
this, lower courts have historical y held that
comments on or criticizes the original work
parody and satire deserve substantial freedom, in some way. Whether a parody is in good
both as entertainment and as a form of social or bad taste does not matter to fair use.
and literary criticism.
The fact that a parody was commercially
In a much-anticipated decision involving motivated weighs against a finding of fair
a parody of the song “Pretty Woman” by
use, but is not determinative by itself.
the rap group 2 Live Crew, the Supreme
Court has strongly reaffirmed the view that The nature of the copyrighted work
a parody, like other comment and criticism, Expressive works of fancy like novels and
may be a fair use. Indeed, the court held
plays are generally given greater copyright
that even a commercially distributed parody protection than more utilitarian factual
of a well-known song can constitute a fair
works like newspaper accounts or scientific
use. To determine whether any parody is a
works. However, the Supreme Court stated
fair use, all four fair use factors discussed
that since parodies almost always copy
above, must be weighed.
publicly known expressive works, this fair
The Supreme Court, in Campbel v. Acuff- use factor is not helpful “in separating the Rose Music, Inc. , 114. S.Ct. 1164 (1994), gave fair use sheep from the infringing goats.”
specific guidance on how the fair use factors
should be evaluated in a parody case.
The amount and substantiality
of the portion used
Purpose and character of the use
To be effective, a parody must take enough
The Supreme Court stated that the heart
material from the prior work to be able
of any parodist’s claim of fair use is that
to conjure it up in the reader’s or hearer’s
CHAPTER 10 | USING OTHER AUTHORS’ WORDS | 273
Parody: Gone With the Wind
When is a work a parody and when is it not?
on the “naiveté of the original” Dr. Seuss
Cases involving Dr. Seuss and the book Gone
stories as well as on society’s fixation on the
With the Wind show just how difficult it can
O.J. Simpson trial.
be to know for sure. One thing is certain,
The court disagreed. It said that a parody
though: If a court decides a work isn’t a
was a “literary or artistic work that imitates
parody, the fair use defense will fail.
the characteristic style of an author or a
In the Dr. Seuss case, two authors wrote a
work for comic effect or ridicule.” The Cat
book called The Cat NOT in the Hat! A Parody NOT in the Hat! didn’t qualify because the by Dr. Juice. The book told the story of the O.J. authors’ poems and il ustrations merely retold Simpson trial through poems and sketches
the Simpson tale. Although they broadly
similar to those in the famous The Cat in the
mimicked Dr. Seuss’s characteristic s
tyle, they
Hat children’s stories by Dr. Seuss. The work
did not hold it up to ridicule or otherwise
was narrated by Dr. Juice, a character based
make it an object of the parody. The court
on Dr. Seuss, and contained a character called opined that the authors used the Seuss
“The Cat NOT in the Hat.” The story begins in
characters and style merely to get attention or
Brentwood:
avoid the drudgery of working up something
fresh. It upheld an injunction that barred
A happy town
Penguin Books from distributing 12,000 books
Inside L.A.
it had printed at an expense of $35,000. ( Dr.
Where rich folks play
Seuss Enterprises v. Penguin Books USA, Inc. ,
The day away
109 F.3d 1394 (9th Cir. 1997).)
But under the moon
Four years later, the exactly opposite
The 12th of June
result was reached by another court in a case
Two victims flail
involving the legendary Civil War novel Gone
Assault! Assault!
With the Wind. The book, called The Wind Done
Somebody will go to jail!
Gone, chronicles the diary of a woman named
Who will it be?
Cynara, the illegitimate daughter of a plantation
Oh my! Oh me!
owner, and Mammy, a slave who cares for the
The owners of the copyrights in Dr. Seuss
owner’s children. Without obtaining permission
sued for copyright infringement. The authors
from the copyright owner of Gone With the
claimed that their work was a fair use of the
Wind, the author of The Wind Done Gone
Dr. Seuss stories because it was a parody. They copied the prior book’s characters, famous argued that by applying Dr. Seuss’s style to
scenes and other elements from the plot,
adult subject matter their work commented
and dialogue and descriptions. The Margaret
274 | THE COPYRIGHT HANDBOOK
Parody: Gone With the Wind (continued)
Mitchell estate sued both the publisher and
between blacks and whites in Gone With the
author for copyright infringement.
Wind. ( Suntrust Bank v. Houghton Mifflin Co.,
The court held that The Wind Done Gone
268 F.2d 1257 (11th Cir. 2001).)
was protected by the fair use privilege, and
The difference between these cases seems to
thus the Mitchell estate could not obtain a
be that the court didn’t like The Cat NOT in the
court order halting its publication. The court
Hat, while it did like The Wind Done Gone. The
concluded that The Wind Done Gone was a
Cat court said that authors’ claim that their
parody. The court held that a work is parody
work commented on the naiveté of the Dr.
“if its aim is to comment upon or criticize a
Seuss stories was “pure shtick” and “completely
prior work by appropriating elements of the
unconvincing.” In contrast, the Wind court said
original in creating a new artistic, as opposed
the book was “a critical statement that seeks to
to scholarly or journalistic, work.” The Wind
rebut and destroy the perspective, judgments,
Done Gone satisfied this test because it was
and mythology of GWTW.” Subjective decisions
a specific criticism of and rejoinder to the
like these show why it can be so hard to predict
depiction of slavery and the relationships
if a parody is a fair use or not.
Market Effect on Derivative Works Must Be Considered
The effect of a parody on the market for
on the potential market for derivative works
derivative works based on the original must
other than other parodies of the original.
also be considered. As discussed in Chapter 6, Again, where the copying is slight, the market
“Adaptations and Compilations,” a derivative
effect on derivative works is also slight.
work is a work based on or recast from an
EXAMPLE: Wil iam writes a one-act play
original, such as a play or screenplay based
that parodies the best-sel ing novel The
upon a novel. The right to license derivative
Bridges of Madison County. In deciding
works is one of a copyright owner’s most
whether the play is a fair use, a court
important rights. A parody may itself be a
must consider the effect the play has
derivative work of the original it parodies.
on the potential market for other plays
But the effect of a parody on the market for
based on the novel. But the court need
other parodies of the original need not be
not consider whether the play affects the
considered. This is because in the real world
market for other parodies of the novel,
copyright owners hardly ever license parodies
since the novel’s author is unlikely to
of their work. In other words, it is only
license parodies of his work.
necessary to consider the effect of a parody
CHAPTER 10 | USING OTHER AUTHORS’ WORDS | 275
mind. To make sure the intended audience
TIP
will understand the parody, the parodist
Applying these fair use factors is a
usually has to copy at least some of the
highly subjective exercise. One judge’s fair use
most distinctive or memorable features of
might be another’s infringement. A parody will
the original work. Once enough has been
probably be deemed a fair use so long as:
taken from the original work to assure
• The parody has neither the intent nor
identification, how much more is reasonable
the effect of fulfil ing the demand for the
to take will depend on the extent to which
original.
the work’s overriding purpose and character
• The parodist does not take more of
is to parody the original. However, a parody
the original work than is necessary to
composed primarily of an original work
accomplish the parody’s purpose (the more
with little new material added is not likely
recognizable the original work, the less
to be considered a fair use.
needs to be taken to parody it).
• The original work is at least in part an
Effect of the use on the market
object of the parody (otherwise there
for the prior work
would be no need to use it).
A finding that a parody has a detrimental
effect on the market for, or value of, the
Calligraphy
original work weighs against fair use. However, A single copy reproduction of a copyrighted the Supreme Court stated that a parody
work by a calligrapher for a single client is
generally does not affect the market for
a fair use. Likewise, a single reproduction
the original work because a parody and
of excerpts from a work by a student calli-
the original usually serve different market
grapher or teacher
in a learning situation
functions. A parody is particularly unlikely would be a fair use of the copyrighted work.
to affect the market for the original where
the copying is slight in relation to the
parody as a whole.
Copying for the Blind
But what if a parody is so scathing or
The making of a single Braille copy or tape
critical of the original work that it harms
recording of a copyrighted work by an
the market for it? Does this weigh against
individual as a free service for blind persons
fair use? The Supreme Court answered
would probably be considered a fair use.
this question with a resounding no. Biting
But making multiple copies or tapes for
criticism is not copyright infringement,
commercial purposes would not be.
even if it effectively destroys a work both
l
artistically and commercially.
C H A P T E R
Copyright Infringement:
What It Is, What to Do About It,
How to Avoid It
11
What Is Copyright Infringement? .................................................................................................. 279
How to Know Whether You Have a Valid Infringement Claim ................................... 281
A Work Protected by Copyright ............................................................................................. 281
Actual Copying by the Alleged Infringer ............................................................................ 282
Improper Use of Protected Expression ............................................................................... 285
When Copying Protected Expression Is Excused ................................................................. 290
Unavoidable Copying: The Merger Doctrine ................................................................... 290
Fair Copying: The Fair Use Privilege ...................................................................................... 290
Self-Help Remedies for Copyright Infringement ................................................................. 290
Contents of a Cease and Desist Letter ................................................................................ 291
Responses to Cease and Desist Letters ............................................................................... 292
Overview of Copyright Infringement Lawsuits..................................................................... 293
Who Can Sue ..................................................................................................................................... 293
Liability for Removing Copyright Management Information ................................. 294
The Copyright Handbook Page 48