Now that the Olympics are over, or as Jon Stewart calls them, the “Quadrennial Corporate-Sponsored International Ring-Based Sports Event”, it’s time to take a look back at some of the humor the Games inspired. From NBC’s coverage to rumors of rogue wi-fi scramblers and the brand police, the XXX Olympiad’s (snicker) festivities provided plenty of fodder for the jokester in all of us.
My favorites were the Wall Street Journal’s “Homemade Highlights” and the UK Guardian’s “Brick by Brick” series. Gymnastics with pipe cleaners and clothespins? Count me in! Basketball teams made entirely of Legos®? Even better. But, given the litigiousness of the IOC, I thought this would be a good time to discuss why the Guardian and WSJ could get away with making us laugh without fear of the infringement hammer of doom.
The Copyright Statute provides a defense to infringement called “Fair Use” (17 U.S.C. 107). The statute gives us a non-exclusive 4-factor test that provides about as much guidance as furniture instructions requiring an Allen Wrench.
For those of you who are interested, the factors are 1) the purpose and character of the use (does it enrich the public somehow and does it differ enough from the original work); 2) the nature of the copied work (is the original work factual or fictional); 3) amount and substantiality of the copied portion (how much of the original work was used); and 4) the effect the copying had on the original work’s value (does the copied portion replace or supersede the need for the original). The analysis is heavily fact-driven, the statute is ambiguous, and the standard is kind of all over the place, but for once, this is largely done on purpose to allow courts to decide whether the defense applies on a case-by-case basis.
Given the fact that the IOC is notoriously litigious, are the WSJ and the Guardian in trouble for their little vignettes? Nah -thanks to the 2 Live Crew- ‘membah them? They were a rap group back in the 1980’s and were…a bit polarizing. To say that one would not likely find their songs featured on a children’s album is putting it mildly. Interesting historical side note- 2 Live Crew’s “Nasty As They Wanna Be” record was one of the first to be slapped with a parental advisory sticker. Anyway, on “As Clean As They Wanna Be” (the album that does not contain naughty lyrics), 2 Live Crew included a parody of Roy Orbison’s “Oh Pretty Woman”. They did ask permission to use it, which was promptly denied, but they made their rendition of the song anyway. Hilarity ensued all the way to the United States Supreme Court.
Parody is a defense that falls under the broader category of Fair Use. The 2 Live Crew case (Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994)) is the Fair Use decision that all other interpretations flow from. The Court had to start with determining if 2 Live Crew’s use was satire or parody. Satire, as defined by the Campbell court and the Oxford Dictionary in 1994, is a work “in which prevalent follies or vices are assailed with ridicule”, which is a very weird way of saying “your work is being made fun of for being stupid”. Parody, however, is more closely related to a spoof or a humorous exaggeration. Courts still struggle with both concepts in the realm of copyright infringement and the fair use defense. But we did learn from Campbell is that commercial use does not take a use out of the realm of parody. And, as tawdry as one may think it is, 2 Live Crew’s use of “Oh Pretty Woman” was very definitely a defensible parody thanks to that pesky First Amendment. With that in mind, and even though there may a colorable argument the WSJ and Guardian’s vignettes were commenting on NBC’s dreadful coverage of the Games, they too, are probably better defined as parodies. As a result, it’s doubtful we’ll hear of an infringement suit (even if the WSJ used a few bars Bugler’s Dream).
The ambiguity of Fair Use has a tendency to cause some problems. The biggest issue is the idea that by attributing the source or throwing in a disclaimer will qualify as Fair Use. It does not. Ever. Don’t do that. Also, there is a common misconception that just because you’re not making any money from your use (like copying a text book, for example) the copying qualifies as Fair Use. Nope. Money (or lack thereof) has nothing to do with it. Finally, and perhaps most importantly, is the idea that having a use that likely qualifies Fair Use will prevent a lawsuit. It won’t. Fair Use is a defense to infringement, not a deterrent to someone disagreeing with your interpretation and hauling you into court.
But the defense is still a powerful one when used properly. And it’s one of my favorites. It’s why we get to see Lego® basketball and clothespin gymnastics. Thank goodness- I’m not sure I want to live in a world where this would never have been made.