S.D.N.Y. Determines Family Guy Parody Is Protected by Fair Use
By Leocadie Welling – Edited by Joshua Gruenspecht
Bourne Co. v. Twentieth Century Fox Film Corporation
S.D.N.Y, March 16, 2009, 07 Civ. 8580
Opinion (hosted by Exclusive Rights)
On March 16, 2009, Judge Batts of the Southern District of New York granted summary judgment for the defendants in a copyright infringement suit against the creators, producers and broadcasters of the television series Family Guy. Plaintiff Bourne Co. is the sole owner of the copyright to the popular song “When You Wish Upon a Star.” The plaintiff claimed that defendants had copied “When You Wish Upon a Star” in a “thinly veiled” manner in their song “I Need a Jew,” which appeared in an episode entitled “When You Wish Upon a Weinstein.”
Judge Batts first determined that “I Need a Jew” was parody, not satire, with a correspondingly greater need to borrow from source material. The court then established that the song satisfied the four-prong test for fair use forth set forth by the 1976 Copyright Act, 17 U.S.C. § 107, which, as developed by case law, places emphasis on the purpose and character of the use and the effect of the use on the potential market for the copyrighted content. The court therefore held that the importation of the melody was protected fair use.
Reuters provides the basic facts. Exclusive Rights offers an overview of the opinion, examining the court’s treatment of the parody versus satire distinction and providing a brief video excerpt of “I Need a Jew.”
Legal Geekery also covers the opinion, characterizing it as a victory for fair use, and comments upon society’s willingness to depend on fair use as a shield against aggressive copyright enforcement.
The animated film site suite101 hosts an article providing background on the Family Guy spoof from an industry perspective.
Both parties in this case agreed that the defendants’ use of “When You Wish Upon a Star” would be copyright infringement but for a finding of fair use. Notably, defendants initially approached Bourne Co. and asked for permission to use the song, but were denied.
Judge Batts opened her discussion of fair use by citing the Supreme Court’s seminal discussion of parody in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994), which cautioned against the “rigid application” of the copyright statute when it would “stifle creativity.” She then determined that “I Need a Jew” was a parody rather than a satire under Campbell because its intent was at least in part to comment on its source material. The defendants justified their song as a parody on two fronts: (1) as a contrast to the “saccharine sweet” worldview of the original and (2) as a pointed comment on Walt Disney’s reputation as an anti-Semite. Judge Batts pointed to evidence produced by defendants that awareness of both the sweetness of the song and Disney’s reputation were widespread, and noted that a parody does not have to be successful in order to be protected by fair use.
After looking at the four factors of the fair use test – (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used; (4) the effect of the use on the market for or value of the copyrighted work – Judge Batts found that the Family Guy parody was sufficiently “transformative” to satisfy the first prong. Following Campbell, she gave little weight to the second prong. She found that the third prong weighed in the defendants’ favor since they had intentionally used enough of “When You Wish Upon a Star” to conjure up the original. She also resolved the fourth prong in the defendants’ favor in spite of plaintiff’s claim that this use would compete with licensed uses and that the anti-Semitic lyrics would harm the value of the song. She stated that the plaintiffs’ interpretation of the fourth prong would “swallow the prong completely” and that “I Need a Jew” is so different from “When You Wish Upon a Star” that it cannot be a market substitute for the original.