Bourne Co. v. Twentieth Century Fox Film Corp.

Bourne Co. v. Twentieth Century Fox Film Corp., 602 F. Supp. 2d 499 (S.D.N.Y. 2009)

Facts: Plaintiff was the sole copyright holder of the song "When You Wish Upon a Star," which was originally written for the movie Pinocchio and had since been used by Disney and other users in a variety of contexts. Defendants created and produced the television show "Family Guy," an animated series that poked fun at TV shows, movies, songs, and celebrities. Defendants created and aired an episode titled "When You Wish Upon a Weinstein" in which the show's main character, Peter, decided he needed a jewish man to help him with his finances. In one scene, Peter looks out his window and sings "I Need a Jew"; both parties agreed that the scene evoked a similar scene in Pinocchio in which Gepetto sings "When You Wish Upon a Star," wishing for a real boy. Defendants initially asked for a license to use the song, but Plaintiff refused. The episode had been rerun about thirty-six time at the time the action was filed, but Plaintiff had only recently learned of the alleged infringement.

Procedural Posture: Plaintiff filed suit for copyright infringement against the show's producer, a television studio, and others. Both parties motioned for summary judgment; Defendants did so on the basis of a fair use defense.

Holding: The court ruled that Defendants were entitled to summary judgment because their allegations of fair use were sufficient.

Important Dicta:
First, The Court set out that § 107 of the Copyright Act of 1976 calls for a four-factor test to analyze fair use: (1) the purpose and character of the use, (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 the copyrighted use. The Court added that the test requires a case-by-case analysis rather than a bright-line test.
Then, the court pointed out that § 107 applies differently in the contexts of parody as opposed to satire. A parody comments on the original and, thus, needs to mimic and original to make its point, so it has intrinsic justification for borrowing from its "victim"'s imagination. Meanwhile, a satire does not actually comment on the original but instead borrows from the original to get attention and stands on its own two feet, so it requires justification for borrowing. The court agreed that the defendants use was a parody because it commented on the ironic juxtaposition of (1) the "innocent" and "wholesome" worldview portrayed in the song and (2) Walt Disney's reputed anti-semitism. The court rejected plaintiff's argument that the song merely commented on anti-Semitism and jewish stereotypes in general and in no way commented on the copyrighted work. The court held that, even if the parodic nature was not immediately apparent to every viewer, it was still reasonably perceivable.
Finally, the court applied the four factors in the context of a parody. The first factor favored the defendants because their use was transformative; the words of the songs were very different. The second prong was given little weight because creativity usually tips the scale in favor of the copyright holder, but parodies really only mimic creative works. The third factor favored the defendants because they only used as much of the copyrighted work as was necessary to make their point. The fourth factor favored the defendants because the markets for each work were different.

Future Importance and Unanswered Questions: This case is important in that it clearly sets out how the four factor test for fair use is applied in the context of a parody. The court does not make totally clear how the analysis would differ for a satire, but it seems to suggest that the analysis would just be more stringent in that context.

Critical Analysis: I had difficulty resolving this distinction between satire and parody with what I had previously believed to be the definition of a satire. I would have thought the the description for each in this case would have been attributable to a satire. This case contains a lot of clearly laid out analysis that adds to and reiterates the holdings in Matte v. MCA, Bill Graham Archives, and other cases we discussed in Professor Risch's Intellectual Property class.

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