You'd better sit down
Defendants trumpet the motto
I'm pretty sure that the band wouldn't support this
We respond (as artists always have)
The more you persist in convoluted logic
Thus, the great American novel
Only one thing is impossible to God
One singer chides a woman (the big hairy one, I think)
You're still asking me to let myself be a target
Its first four words--"Thou shalt not steal"
Record companies' primary assets
The utility of this power
Finally and in the same vein
It is de rigueur
The world of authors, appropriators, and the consuming public
A thumbnail sketch
You'd better sit down, officer, the whole
bizarre story takes some time.(1)
In 1991,"a band of modern noisemakers"(2) calling themselves Negativland released a recording entitled U2, featuring "the kind of socially sharp sound collage Negativland is known for (albeit in very small circles)".(3) The title referred to the Irish rock band U2; the recording incorporated, among other elements, digital samples from U2's song I Still Haven't Found What I'm Looking For, a parodic performance of the same song, and a series of scatological outtakes from the syndicated American Top 40 radio program, featuring the voice of host Casey Kasem.(4)
The release of Negativland's U2 set into motion a complex and bizarre sequence of events which included two lawsuits, and the threat of a third. At every turn, Negativland seemed to find someone with an objection to their record. Despite their considerable effort, Negativland finally could not stop the suppression of U2.
Part I of this article introduces the factual background of the case--the parties and learn their roles, as well as the legal actions involved (actual and threatened) and their consequences. Part II discusses some of the legal issues presented, especially those arising from the law of copyright.
Part III raises questions about the goals of copyright, and the tension between copyright and the First Amendment.(5) Part III also questions the role of subtle artistic value judgments in cases such as this, which may have the effect of disfavoring artistic expression. Finally, Part IV offers some responses to the problems illustrated by Negativland's case. These responses might be implemented by statute--that is, incorporated within the Copyright Act(6)--or adopted by courts as an "equitable rule of reason."
Defendants trumpet the motto "Copyright Infringement Is Your Best
Entertainment Value".... Defendants believe that the Copyright Act,
and copyright laws in general, should not be taken seriously, and, at
best, serve as a mere stumbling block to the brand of artistic expression
that defendants proffer.(7)
Negativland released U2 in August of 1991 on the SST label, to whom they were under contract. Negativland had released several other recordings (all of them on the SST label), but felt that U2 was "probably the most interesting and peculiar record [they] had ever made."(8)
Within days, SST Records was sued by Island Records (to whom the band U2 was under contract) and Warner/Chappell Music (U2's publisher) for copyright infringement, "image defamation," and deceptive packaging.(9) Plaintiffs' motion for a preliminary injunction on the sale or manufacture of U2 was promptly granted, and SST settled quickly.(10) By the terms of the settlement, SST was prohibited from distributing U2 and agreed to destroy all remaining copies. They were also required to pay an estimated $25,000 in legal costs, and assign the copyright in U2 to Island and Warner/Chappell.(11)
SST demanded in turn that Negativland reimburse them for the cost of the settlement plus legal fees--"at least $90,624.33"(12)--pursuant to what SST alleged to be an indemnification agreement included in Negativland's contract.(13) Negativland refused, claiming that the so-called "indemnification agreement" imposed no such responsibility upon them. Further, Negativland claimed that (1) SST was aware of, and had been in a far better position to assess, the legal consequences of releasing U2 (particularly with respect to the cover art), and (2) SST had settled with Island without consulting Negativland (who were much more interested in defending against the action than in settling). Negativland did, however, offer to pay half of the demanded amount, to be subtracted from royalties otherwise due, on the theory that the band and the label were equally responsible for what had occurred.(14) SST rejected the offer, and declined to make any more royalty payments to Negativland for U2 or any previous recording. Negativland then unilaterally severed all contractual relations with SST.(15)
I'm pretty sure that the band wouldn't support this rather heavy-handed
interference in what you're doing; apart from anything else, their senses of
humour and self-deprecation are completely intact, and I think they'd
probably find the original record pretty funny.
Of course, they don't control Island Records or Warner Chappell, and it
might be the case that this is hard to stop....(16)
Meanwhile, from across the Atlantic, the members of U2 watched events unfold. As Negativland and SST each took on the task of keeping the case in the public eye, U2 suffered a blow to their reputation. U2, however, was in a position relative to Island Records and Warner/Chappell music not unlike Negativland's position relative to SST. According to U2 manager Paul McGuinness, "There has been a certain amount of collateral damage done here. U2 have been persecuted over something which is not their fault. The legal action was taken by Island Records who don't have to ask our permission first. They were defending their own interests. I have a few copies of Negativland's single myself--we all think it's pretty funny."(17)
Indeed, on an artistic level, U2 would have been in no position to object to what Negativland had done.(18) In a 1992 interview for Mondo 2000 magazine U2's guitarist, the Edge,(19) discussed the band's current tour (the so-called "Zoo TV Tour"). The elaborate stage constructed for the tour includedbig screens on the stage which are the final image that's created. Down by the mixing board we've got a vision mixer which mixes in, blends the images from live cameras, from optical disks, and from live satellite transmissions that are taken in from a dish outside the venue. So the combination of images can be any of those sources.(20)
When asked about the copyright implications of such a scheme, the Edge seemed to believe that the artistic use of the "samples" was justified:I asked the question early on--is this going to be a problem?, and apparently it, I don't think there is a problem. I mean, in theory I don't have a problem with sampling. I suppose when a sample becomes just part of another work then it's no problem. If sampling is, you know, stealing an idea and replaying the same idea, changing it very slightly, that's different. We're using the visual and images in a completely different context. If it's a live broadcast, it's like a few seconds at the most. I don't think, in spirit, there's any....(21)
At this point that the Mondo 2000 interviewers revealed themselves as Mark Hosler and Don Joyce, members of Negativland.(22)
We respond (as artists always have) to our environment.... We follow our
working philosophy as best we can amid the proprietary restrictions of a
self-serving marketing system that has imposed itself on culture.(23)
The Mondo 2000 interview was not the only example of Negativland's savvy use of media to keep the matter alive. Negativland had also created and published a booklet entitled The Story of the Letter U and the Numeral 2.(24) The booklet recounted events as they had occurred (or, at least, as Negativland perceived they occurred). In some ways, the booklet was stylistically similar to the U2 record itself--the story was told in a "collage" of primary documents such as court papers, press releases, and private correspondence, all reproduced in full. Shortly after releasing the booklet, Negativland discovered that they were again being sued. The complaint filed by SST(25) alleged that the booklet constituted copyright infringement,(26) violation of the Fair Credit Reporting Act,(27) and breach of contract.(28)
Negativland finally settled their dispute with SST.(29) Moreover, in the face of continuous pressure, U2,(30) Island Records,(31) and PolyGram Music (successors in interest to Warner/Chappell Music)(32) all agreed in principle to allow the re-release of U2. Only one hurdle remained....
The more you persist in convoluted logic to defend your use of
this material, the more the thought keeps running through my
mind (and the minds of others, I'm sure): "They just don't get it,
do they? Or else they don't want to."(33)
In April, 1992, Casey Kasem was in Las Vegas, hosting a concert in protest of nuclear weapons testing. During an interview with Doug Jablin (from radio station KUNV, Las Vegas) and Diana Arens (radio KAOS, Olympia, WA--which is, perhaps not coincidentally, the home town of Negativland's Mark Hosler), the following exchange occurred:
Q: One of my other questions involves Negativland, their U2 album and their use of the sample of your voice. How do you feel about that? Because you didn't sue them.
CK: No, I didn't sue them. And I choose not to call attention to it simply because that would only be doing them some good, but I understand that most of them are off the market and I've never criticized anybody for playing it, I've never called a radio station and said "Don't play it." They can play it if they want to. But what it does is it, uh, unfairly misrepresents me, because that was something that was recorded by an engineer who knew that when he gave it to another engineer eventually it would become part of the mainstream and eventually it would be played on the air. That was something that was personal, something that I don't believe should have been played on the air, but it has been and there's no harm done and...onward and upward!
Q: What do you think that Negativland was trying to do? It seems like you have a right to complain about it.
CK: No, I'm not going to complain about it, it's a free country and we have the First Amendment so...no problem, no problem. I'm against censorship of any kind. Even Casey Kasem. If they want to censor me, fine. But that's not fine. You can't censor me because I believe in the First Amendment. Nobody should be censored.(34)
If Kasem had no intention to pursue a legal remedy against Negativland, however, his intentions changed quickly. Only days after this interview, Negativland and Island Records received notice that Kasem would pursue "all legal remedies available" to prevent the re-release of U2.(35) Despite repeated pleas from Negativland that Kasem reconsider,(36) he has remained steadfast. Appeals from Negativland's fans (who contacted Kasem at the band's suggestion, of course(37)) were answered with a form letter:
The issue over Negativland U2 [sic] isn't censorship. It's about theft and piracy. Negativland didn't own the written/recorded material it put on the record, and that's against the law.... Free speech--and theft for private gain--aren't synonymous--nor should they be. Thanks for airing your concern.(38)
As long as Island Records remained the legal owner of the copyright in U2, Kasem made clear his intention to include Island in any legal action. Thus, Island's agreement in principle to allow re-release was explicitly contingent on Negativland obtaining a similar agreement from Kasem.(39) With such an agreement not forthcoming, Island declined to clear the record for release. U2 remains unavailable to this day, and likely will never again see public distribution.
The legal actions filed or threatened against Negativland alleged a variety of wrongs. This article will not attempt to analyze every issue presented--some(40) are entirely beyond its scope. Instead, attention will focus upon those issues arising from the law of intellectual property, especially copyright, as applied to Negativland's U2 recording.
Thus, the great American novel, a report prepared as a
duty of employment, a shopping list, or a loanshark's
note on a debtor's door saying "Pay me by Friday or
I'll break your goddamn arms" are all protected by the copyright.(41)
A prima facie case of copyright infringement has two elements: a valid copyright, and substantial unauthorized copying of expression from the copyrighted work.(42) These elements are the subject of sections 102 and 106, respectively, of the Copyright Act.
Section 102 specifies the subject of a valid copyright.(43) Copyright protects original works of authorship that are fixed in any tangible medium.(44) So long as a work contains sufficient expression to be recognized as an original work of authorship,(45) and is suitably fixed,(46) it is properly subject to copyright. Some of the elements which Negativland appropriated in the creation of U2 clearly fall within the subject matter of copyright as defined by section 102. In particular, there can be little doubt that I Still Haven't Found What I'm Looking For was protected by a valid copyright; in fact, both Island Records and Warner/Chappell Music claimed copyright interests in U2's work (Island in the recording, and Warner/Chappell in the musical work).(47)
It is perhaps less clear that Casey Kasem could state a claim for copyright infringement(48) based on Negativland's use of his recorded outtakes. It may be counterintuitive to think of offhand comments and normal conversation as "original works of authorship," but recall that Kasem's remarks were captured on audio tape. As such, the tape fits squarely into the statutory language extending copyright to sound recordings. Assuming that the tape contained sufficient protectable expression, there is nothing in the Copyright Act excluding any particular sound recording on the basis of its content.
Once it has been established that there is a valid copyright in a work, Section 106 of the Act sets out the five exclusive rights granted to the owner of the copyright.(49) Once the plaintiff has demonstrated the existence of a valid copyright, a prima facie case of infringement requires showing that the defendant's conduct violated a right reserved exclusively to the owner. In the case of the appropriated sound recordings, the copyright owners would have only to show that Negativland had reproduced the protected expression or had sold reproductions of the protected expression. As owner of the copyright in the musical work, Warner/Chappell would have to show that Negativland "performed" I Still Haven't Found What I'm Looking For.(50) Each plaintiff might also want to allege that U2 violated the exclusive right to create a derivative work.(51)
Almost certainly, Negativland's U2 constituted a prima facie claim of infringement; that is, the plaintiffs could show that--in the absence of an affirmative defense-- Negativland had copied protected elements of the recordings, and had impermissibly performed U2's song. Negativland has never denied this much. They continue to insist, however, that their use of the protected material was "fair."
Negativland's argument relies on the fact that the rights granted by section 106 are exclusive, but not unlimited. They are granted "[s]ubject to sections 107 through 120."(52) For example, section 114 limits the rights in sound recordings to exclude "any right of performance under section 106 (4)."(53) Similarly, section 115 limits the rights in musical works by imposing a scheme of compulsory licensing.(54) In comparison to the clear and precise language of these examples, however, section 107--codifying the doctrine of fair use--is considerable more opaque.(55) It may be, however, the single most important limitation on copyright.
Only one thing is impossible to God, to find any sense
in any copyright law on this planet.(56)
A court must weigh the equities in any claim of fair use. "The task is not to be simplified with bright-line rules, for the statute, like the doctrine it recognizes, calls for case-by-case analysis."(57) The Supreme Court has described the doctrine of fair use as "an 'equitable rule of reason,' which 'permits courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.' "(58)
Whatever the importance of creativity, "artistic expression" is not among the exemplary purposes--"criticism, comment, news reporting," et al.--set out in the statutory language. Still, it makes little difference whether or not a challenged use is among the enumerated examples--"[t]he text employs the terms 'including' and 'such as' in the preamble paragraph to indicate the 'illustrative and not limitative' function of the examples given, which thus provide only general guidance about the sorts of copying that courts and Congress most commonly had found to be fair uses."(59) Factors in addition to the four set out in the statute may be considered,(60) but each of the four factors in the statute must be evaluated. "Nor may the four statutory factors be treated in isolation, one from another. All are to be explored, and the results weighed together, in light of the purposes of copyright."(61)
It is extraordinarily difficult to predict in advance of judicial pronouncement how these factors will be balanced in a particular case; that is, whether a use will be deemed fair:
[A] panel of the Second Circuit that included both Judges Hand described fair use as 'the most troublesome issue in the whole law of copyright.' The Supreme Court's experience with the doctrine bears out this assessment. The Court's first two encounters with fair use [Columbia Broadcasting System, Inc. v. Loew's, Inc. and Williams & Wilkins Co. v. United States] resulted in affirmances by an equally divided vote. The Court's third attempt, in Sony Corporation of America v. Universal City Studios, resulted in a 5-4 decision handed down only after the case had been reargued.(62)
In light of the amorphous nature of the fair use analysis, there is little point in attempting to answer with any accuracy the fundamental question of whether Negativland's use of copyrighted material was a fair use. Instead, the following sections will examine in a more general way the four statutory fair use factors. The intent is to use elements of Negativland's story to illustrate some of the more difficult issues surrounding a claim of fair use, and to imagine how some recent decisions regarding the fair use doctrine might apply to these facts.
One singer chides a woman (the big
hairy one, I think) for having cheated on him....(63)
The first factor--"the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes"--may seem on its face to weigh against Negativland, whose record was commercially released for profit. Indeed, at one time the Supreme Court had declared that "[e]very commercial use of copyrighted material is presumptively unfair,"(64) and it was under this very rubric that the Sixth Circuit Court of Appeals had held against 2 Live Crew's claim of fair use in their parody of Roy Orbison's Oh, Pretty Woman.(65) In reversing the circuit court decision, the Court made clear that the earlier language was not intended to create a "hard evidentiary presumption,"(66) and that "[i]n giving virtually dispositive weight to the commercial nature of the parody, the Court of Appeals erred."(67)
In Campbell v. Acuff-Rose Music, Inc., the Court focused its inquiry under the first factor on whether the new work merely supersedes the original, or if it is transformative.(68) "Suffice it to say…that parody has an obvious claim to transformative value."(69) If Negativland could fairly characterize U2 as parody, they might have prevailed on the first factor. However, the opinion is careful to note that parody is different from satire. "[T]he nub of the definitions, and the heart of any parodist's claim to quote from existing material, is the use of a prior author's composition to create a new one that, at least in part, comments on that author's works."(70) Satire, on the other hand, "can stand on its own two feet and so requires justification for the very act of borrowing."(71)
In light of the facts of the Campbell case, the Court may not have intended that the distinction be drawn too finely. Reasonable listeners may dispute whether 2 Live Crew's recording actually met the Court's own test.(72) Still, it seems a curious line to draw, if the "central purpose of this investigation is to see, in Justice Story's words, whether the new work merely 'supersede[s] the objects' of the original creation, or instead adds something new, with a further purpose or different character."(73)
You're still asking me to let myself be a
target--to be "shot in the foot," so to speak, in public
for as long as your record circulates. I'm not a
masochist; neither is anyone else I know.(74)
The second fair use factor--"the nature of the copyrighted work"--recognizes that, while all original works of authorship fixed in a tangible medium of expression are protected by copyright,(75) "some works are closer to the core of intended copyright protection than others."(76) Among these are unpublished works.(77) Although the statutory language explicitly allows for a finding of fair use in unpublished works,(78) courts have been reluctant to do so.(79)
Perhaps this reluctance can be explained in part by the fact that, until the 1976 revision of the Copyright Act, federal courts were generally spared the task of considering fair use in unpublished works. "Prior to the 1976 Copyright Act, every copyright statute in this country, with one minor exception, 17 U.S.C. § 12 (1976) (the 1909 Act), required publication as a condition for statutory copyright."(80) Unpublished works had previously been the exclusive subject of state common law copyright.(81) Thus, Section 107 includes a paradox: although "Congress meant § 107 'to restate the present judicial doctrine of fair use, not to change, narrow, or enlarge it in any way,' "(82) the terms of the statute required courts to interpret the federal copyright statute in a novel context.
It is probably obvious that the unreleased American Top 40 outtakes (featuring the voice of Casey Kasem) appropriated by Negativland would be considered "unpublished works." What may be less obvious is that Kasem's recorded remarks might have been treated as unpublished even if they had been broadcast.(83) Broadcasting the recording merely constitutes a performance or public display,(84) not publication.(85) Therefore, the fact that the recordings were unreleased outtakes is of only minimal significance--in order to claim fair use of the American Top 40 material, regardless of whether it had been broadcast, Negativland probably would have had to overcome the heavy presumption against the use of unpublished works.
Its first four words--"Thou shalt not steal"--contain the opinion's first
and only reference to any authority or precedent.(86)
The third factor in the fair use analysis is "the amount and substantiality of the portion used in relation to the copyrighted work as a whole." Generally, the smaller the appropriated portion, the more likely that a particular use will be deemed "fair."
It is not clear, however, that courts will give this factor much weight in the case of digital samples of recorded material. Relatively short samples have resulted in legal liability. For instance, a ten-second sample from Gilbert O'Sullivan's song Alone Again, Naturally led to a finding of infringement: "In a terse four-page opinion, United States District Court Judge Kevin Thomas Duffy granted the injunction and referred the defendants...to the United States Attorney for possible criminal prosecution."(87)
In spite of the fact that this was only a district court decision, it seems to have had a disproportionate influence. "Four days before the [O'Sullivan] decision, perhaps in anticipation of an adverse ruling, dance music producer Jellybean Benitez filed suit over an unauthorized sample. Four days after the ruling, Tuff City Records, a New York-based independent label, sued Sony Music Inc. and the Sony-distributed label Def Jam Records over a drum sample. About a month later, Bridgeport Music, a publishing company, brought suit to enjoin the manufacture and sale of a hit record containing a sample of a recording to which it owned the copyright. A group calling itself 'The Association of Parliament/Funkadelic Members 1971-83' filed a massive suit alleging that it owns copyrights to recordings created by George Clinton that have been sampled by at least sixty-two recording acts."(88)
This rather draconian reading of the Copyright Act is not facially unreasonable. The relevant statutory provision states:
The exclusive right of the owner of copyright...under clause (1) of section 106 is limited to the right to duplicate the sound recording in the form of phonorecords...that directly or indirectly recapture the actual sounds fixed in the recording. The exclusive right...under clause (2)...is limited to the right to prepare a derivative work in which the actual sounds fixed in the sound recording are rearranged, remixed, or otherwise altered in sequence or quality.(89)
Such a strict reading, however, is inconsistent with the plain language of Section 106. That section grants exclusive rights "[s]ubject to sections 107 through 120." There is no evidence of congressional intent to limit a defendant to one, and only one, of the limiting sections. Similarly, there is no reason to believe that the application of any relevant defense created by the statutory limitations of Sections 108 through 120 bars an otherwise meritorious case under the "general" fair use scheme found in Section 107, and even less reason to conclude that failure under the other limiting sections is fatal to a claim of fair use. Nevertheless, Negativland's use of digital samples might well run afoul of the developing judicial disapproval of digital sampling.(90)
Record companies' primary assets are rights--copyrights, exclusive
rights for recording services, names, trademarks etc. When certain
of those rights were violated, we felt we had no choice but to act
swiftly and, apparently, successfully.(91)
The fourth fair use factor is "the effect of the use upon the potential market for or value of the use." Of the four statutory factors, this is generally considered to be the most important.(92) It may also be, in some ways, the most problematic. It is true, as Judge Leval has written, that "[t]he Court's recognition of the importance of this factor underlines, once again, that the copyright is not a natural right inherent in authorship. If it were, the impact on market values would be irrelevant; any unauthorized taking would be obnoxious."(93) However, it is equally true that the application of an economic analysis to what is, after all, "pure" expression(94) raises potentially troubling questions.
The Supreme Court has cited with approval a test articulated by the late Prof. Nimmer: "Fair use, when properly applied, is limited to copying by others which does not materially impair the marketability of the work which is copied."(95) Significantly, this inquiry goes beyond an examination of whether the appropriating work supersedes the original; courts "must take account not only of harm to the original but also of harm to the market for derivative works."(96) For instance, the Campbell opinion considered the possibility that 2 Live Crew's rap parody of Roy Orbison's song may have affected the publisher's exclusive right to prepare a derivative rap version of the original, and directed the trial court to examine the issue on remand.(97)
It is interesting to speculate how this factor might have been resolved in the case of the press releases, letters, and bumper sticker reproduced in Negativland's booklet (which allegedly infringed copyrights owned by SST Records). The press releases and letters were not produced for profit; the bumper sticker was commercially distributed, but it may reasonably be inferred that the market value of a bumper sticker depends upon its ability to stick to a bumper. It might seem, therefore, that the reproduction of these materials in the booklet did not usurp their commercial value.
This conclusion, however, cannot end the inquiry. Assuming for the sake of argument that these materials were subject to copyright protection, the analysis under the fourth fair use factor must also consider the impact of the appropriation on the market for derivative works. Consequently, a claim of fair use might have been defeated if SST could show that they possessed market value when compiled in book form. A court might be inclined to find that the mere fact that Negativland sold the booklet constituted evidence of that market value.(98) Thus, Negativland might well have been found to have effected the market for derivative works in the copyrighted material, and so the fourth fair use factor might be held to weigh against a finding of fair use.
Obviously, the preceding exercise is by no means an exhaustive discussion of the fair use doctrine, or of the application of that doctrine to Negativland's work. It is offered only to illustrate the highly subjective nature of the fair use analysis. Because of this subjective nature, it has been necessary to employ vague language such as "might," "may," "possible," and "potential" throughout the discussion. The flexible nature of the fair use doctrine is often cited as its greatest strength,(99) but it may also be its greatest weakness. It may be one of several respects in which the law of copyright is insufficiently sensitive to problems of free expression--the subject to which this article now turns.
Copyright may be fairly described as a limitation upon freedom of expression--once an author has expressed a fact or idea in a particular manner, that expression belongs to the author and may not be used by anyone else. It should be obvious that this feature of copyright law creates a potential conflict with the First Amendment.(100) What may be surprising, however, is the relative ease with which many courts have reconciled this tension.(101)
The utility of this power will scarcely be questioned. The copyright
of authors has been solemnly adjudged, in Great Britain, to be
a right of common law. The right to useful inventions seems
with equal reason to belong to the inventors. The public good
fully coincides in both cases with the claims of individuals.(102)
Before continuing, it may be useful to pause for a moment and consider the goals of copyright law. The Copyright Clause(103) grants Congress the power to "secur[e] for limited times to authors and inventors the exclusive right to their respective writings and discoveries;" it also, however, specifies the purpose for which that power may be exercised--"To promote the progress of science and useful arts." The Copyright Clause "is in fact 'the promotion of Science' clause: the only provision of section eight of the Constitution defining the purpose of, and therefore limiting, a power granted to Congress."(104) In short, the purpose of copyright is the encouragement of authorship, in order that the public may reap the benefits.(105)
In this sense, copyright shares with the First Amendment a single objective--each seeks to encourage expression. However, where the First Amendment approaches this objective by limiting the power of the government to interfere with expression ("Congress shall make no law…abridging the freedom of speech, or of the press"(106)), the Copyright Clause empowers Congress to actively promote expression. "[I]t should not be forgotten that the Framers intended copyright itself to be the engine of free expression."(107) "Where the First Amendment removes obstacles to the free flow of ideas, copyright law adds positive incentives to encourage the flow."(108)
It is perhaps a result of this common purpose, shared by the law of copyright and the First Amendment, that courts have been consistently untroubled by any potential conflict in the means each doctrine prescribes to achieve that purpose. In Harper & Row, for instance, the Court opined that the Copyright Act itself embodies sufficient First Amendment protection.(109) However, this appraisal fails to account for an important historical fact--"Congress' power to secure to authors the right to their writings caused concern for the liberty of the press and was one of the justifications for the adoption of the first amendment."(110) As one participant in the ratification debates put it:
Tho it is not declared that Congress have a power to destroy the liberty of the press; yet, in effect they will have it. For they will have the powers of self-preservation. They have a power to secure to authors the right of their writings. Under this, they may license the press, no doubt; and under licensing the press, they may suppress it.(111)
Still, whatever tension may exist, it must be admitted that the First Amendment and the law of copyright have coexisted more or less peacefully for two centuries. This apparent harmony is generally credited to two features within the Copyright Act(112)--the "idea/expression dichotomy," and the doctrine of fair use.
Finally and in the same vein, we cannot indulge the facile assumption
that one can forbid particular words without also running a substantial
risk of suppressing ideas in the process.(113)
The Supreme Court's claim in Harper & Row that "copyright's idea/expression dichotomy 'strike[s] a definitional balance between the First Amendment and the Copyright Act by permitting free communication of facts while still protecting an author's expression' "(114) is difficult to reconcile with traditional First Amendment jurisprudence. For instance, in Cohen v. California,(115) the Court explained that there were "relatively few categories of instances where prior decisions have established the power of government to deal more comprehensively with certain forms of individual expression simply upon a showing that such a form was employed."(116) And Justice Harlan's observation that "one man's vulgarity is another's lyric"(117) was not accompanied by an admonition that one may not appropriate another's lyric.
In essence, the State of California wanted only to impose an "idea/expression dichotomy" upon Paul Cohen--the state's objection was not to the idea Cohen expressed, but to the manner in which he expressed it. It is hard to imagine how the Court could have sanctioned this restraint on Cohen's expression in light of the plain language of the First Amendment. The First Amendment explicitly places "speech," not thoughts or ideas, generally beyond the government's reach. This is not to say that speech is entirely excluded from state regulation; the balancing tests applicable to First Amendment questions are well-known, and the Cohen opinion itself notes several of them.(118) However, any claim that a distinction between ideas and expression, standing alone, is sufficiently responsive to First Amendment concerns is irreconcilable with the fact that the Cohen decision rejected a similar line of argument.
Moreover, the idea/expression dichotomy is entirely irrelevant to a defendant in Negativland's position. Negativland had no interest in the ideas expressed by U2 or Casey Kasem; rather, they sought to use the original material as grist for expression of their own ideas. If Negativland's artistic product gives rise to any First Amendment interests, protection of those interests is beyond the scope of the idea/expression dichotomy. Any such protection will have to be found elsewhere.
It is de rigueur to begin a scholarly discussion by quoting one
of the judicial laments that fair use defies definition--Justice
Story's in Folsom v. Marsh is a likely choice, but there are
others--before going on to define it anyway. The field is
littered with the corpses of overturned opinions....(119)
Fortunately, the Supreme Court has not relied entirely upon the idea/expression dichotomy in its efforts to harmonize copyright and free speech; the doctrine of fair use is also said to advance First Amendment interests.(120) "The law of fair use focuses on [where some] limits should be drawn. As one of the eighteenth-century lords put it, 'one must not manacle science.' "(121) It may be, however, that fair use is not entirely up to the task.
One of the touchstones of First Amendment jurisprudence is the so-called "vagueness" doctrine.(122) "As a matter of due process, a law is void on its face if it is so vague that persons 'of common intelligence must necessarily guess at its meaning and differ as to its application.' "(123) Courts recognize that any law which limits speech must clearly identify what speech is limited in order to avoid "chilling" protected expression.(124) The question, then, is whether the Copyright Act, incorporating the doctrine of fair use, is sufficiently precise to withstand attack on the basis of vagueness.
It would certainly appear that persons of "common intelligence" must indeed guess whether the use of particular material is "fair." It sometimes seems as though judges are themselves reduced to mere guessing.(125) Cases involving strikingly similar facts will often be decided differently;(126) decisions are frequently reversed on appeal, and sometimes reversed again upon further appeal.(127) In this uncertain legal climate, an author or artist might be well-advised to think twice about appropriating any but the most insignificant portions of a protected work--although a more extensive use may ultimately be deemed fair, few will want to subject themselves to the substantial risk that a court will decide otherwise. For example, a previous section of this article illustrated some of the difficulties inherent in analyzing Negativland's claim of fair use in the material they appropriated. Close examination of the applicable precedent left many important questions unanswered--questions which could only be resolved by accepting the risks and expense of litigation (and, perhaps, appeal). Under these circumstances, the "chilling effect" appears to be manifest.
There is also another, more insidious, difficulty which limits the value of the fair use defense. Although it is generally accepted that "[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,"(128) it is not at all clear that judges have avoided the temptation. "While the Copyright Act is content neutral, the cases reveal that courts have used the discretion inherent in the fair-use framework to deny protection to sexually explicit or distasteful parodies."(129)
Evidence supporting this disturbing conclusion may be found in the language of the decisions themselves. For instance, in MCA Inc. v. Wilson,(130) the court stated that "we are not prepared to hold that a commercial composer can plagiarize a competitor's copyrighted song, substitute dirty lyrics of his own, perform it for commercial gain, and then escape liability by calling the end result a parody."(131) In Walt Disney Productions v. Air Pirates,(132) the court contrasted the "image of innocent delightfulness" in Disney's original characters with the "rather bawdy depiction of the Disney characters as active members of a free thinking, promiscuous, drug ingesting counterculture" in the allegedly infringing parody.(133) In Dallas Cowboys Cheerleaders v. Pussycat Cinema, Ltd.(134) the court noted in particular that the appropriation was for purposes of creating a "a gross and revolting sex film."(135)
It may be that these courts finally decided the cases before them without reference to the value judgments implicit in the excerpts cited here. Still, it ought to be troubling that any language of this sort finds its way into decisions bearing upon matters of free speech. If the First Amendment means anything at all, it must mean that "offensive" speech is given particular protection. "The First Amendment was designed to protect offensive speech, because nobody ever tries to ban the other kind."(136) It may be, however, that the broad discretion available to a court evaluating a claim of fair use creates an unacceptable risk that nominally "offensive" expression will be subject to suppression, contrary to the principles of the First Amendment.
The world of authors, appropriators, and the consuming public
is quick to draw the inference that a judgment of infringement
maligns the worth of an appropriating work. These attitudes go
hand-in-hand with the hair-trigger inclination of courts to
accompany findings of infringement with injunctive relief--
to wipe the infringing work from the face of the earth.(137)
There is one final aspect of the law of copyright which might be said to conflict with First Amendment precedent. Recall that Negativland and SST Records were enjoined from producing or selling U2 within days of its release(138)--that is, before any evaluation of the merits of the plaintiffs' claims. This sort of relief, which is explicitly sanctioned by the Copyright Act,(139) is normally available to plaintiffs in copyright cases upon a prima facie showing of infringement.(140) Although the Rules of Civil Procedure allow for the imposition of a preliminary injunction only upon a showing of "immediate and irreparable injury, loss, or damage,"(141) such injury is presumed in copyright cases merely by demonstrating that the defendant copied material subject to a valid copyright.(142)
It is difficult to reconcile this quickness to grant preliminary injunctions in copyright cases with the presumption against prior restraint of speech. In Near v. Minnesota,(143) the Supreme Court struck down a statute which authorized the state to enjoin publication of a "malicious, scandalous, and defamatory newspaper, magazine, or other periodical."(144) Similarly, in New York Times Co. v. United States,(145) in which the government sought to enjoin publication of the so-called "Pentagon Papers," the Court noted that "[a]ny system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity."(146)
Of course, it must be recognized that a preliminary injunction in a copyright case differs in important ways from the injunctions at issue in Near and New York Times. In those cases, for instance, the injunctions were imposed prior to publication.(147) In the case of an alleged infringement of copyright, the defendant will normally have published the work to be enjoined (as was true in Negativland's case). It can be argued that the "prior" in "prior restraint" refers only to prepublication injunctions, and that a postpublication injunction more closely resembles constitutionally permissible sanctions such as those available in cases of libel. The alternative view, however, is that an injunction serves as a prior restraint whenever speech is suppressed before a court can evaluate whether the challenged expression is protected by the First Amendment. "An invalid prior restraint infringes a defendant's constitutional rights because it prevents him from disseminating matters that are ordinarily protected by the first amendment without a prior judicial determination that the material does not qualify for first amendment protection."(148)
Another significant difference between the injunctions invalidated in Near and New York Times and those issued against copyright defendants such as Negativland is that the former involved direct government action. Indeed, "Justice White has suggested that a copyright injunction is never a prior restraint because the plaintiff is not the government but rather a private individual enforcing a private right."(149) This view fails, however, to account for the pivotal role played by a court in granting a preliminary injunction, particularly given that the decision is entirely discretionary.(150) "Insofar as a copyright plaintiff must invoke the courts to obtain injunctive relief, the traditional presumption against prior restraints applies."(151)
It may be that this particular concern has been mooted by the Supreme Court's decision in Campbell.(152) In footnote 10(153)--which, according to Judge Leval, "may become one of the most-often cited parts of this opinion,"(154)--the Court noted that "[b]ecause the fair use enquiry often requires close questions of judgement as to the extent of permissible borrowing involving parodies (or other critical works) courts may also want to bear in mind that the goals of copyright...are not always best served by automatically granting injunctive relief...."(155) Of course, it remains to be seen how courts will incorporate this dicta into subsequent decisions.(156) It should also be noted that the Court spoke in terms of the "goals of copyright," not the goals of the First Amendment.
Nor, for that matter, did the Court speak in terms of the goals of artistic expression. This is an area which courts have been reluctant to enter, and with good cause. Few judges are qualified as art critics, and there is a genuine risk in asking them to function as such. To complete Justice Holmes' oft-cited thought,(157) "[a]t 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."(158)
And indeed, Negativland's chosen mode of expression might seem to constitute a "new language." The incorporation of pre-existing material into an entirely new work appears to be well beyond the ken of copyright law, at least insofar as copyright law is currently administered. However, the question remains--is this sort of appropriation artistically novel, or is it merely an extension of the way artists normally work? To turn the question around, can we expect artists to function in the traditionally understood manner without infringing copyright?
A thumbnail sketch, A jeweler's stone,
A mean idea to call my own....
Standing on the shoulders of giants leaves me cold.(159)
Negativland's sonic collages bear a striking resemblance to what has come to be known as "appropriation art." Appropriation art has been described as:
a kind of enhanced language in which the artist makes the audience aware of the significance of otherwise commonplace and increasingly obscured objects. Everyday images such as soup cans, flags, cigarette packages, money, movie stars, comic strips and even shopping bags--the representations of which ordinarily serve as cultural symbols--are transformed into a language through which these artists communicate their message.(160)
The legitimacy of appropriation art is said to arise from its connection to such well-recognized precursors as Modernism, Cubism, Dada, and Pop Art.(161) The problem of appropriation art (at least with respect to visual works) has been the subject of legal attention at least since the decision in Rogers v. Koons,(162) in which a sculptor's appropriation of a pre-existing photograph was held to be an infringement of the photographer's copyright. The Koons case has been the subject of considerable commentary,(163) and there is no reason to duplicate those efforts here.
The broader question, however, is whether the methods employed by appropriation artists is significantly different from the methods employed by artists in general--and the answer appears to be no. "To say that every new work is in some sense based on the works that preceded it is such a truism that it has long been a cliche, invoked but not examined.... [T]he very act of authorship in any medium is more akin to translation and recombination than it is to creating Aphrodite from the foam of the sea."(164) The liberal use of pre-existing material for other purposes is not some novel, postmodern, twentieth century phenomenon, nor is it unique to the arts. Rather, it is inherent in any expression:
Composers recombine sounds they have heard before; playwrights base their characters on bits and pieces drawn from real human beings and other playwrights' characters; novelists draw their plots from lives and other plots within their experience; software writers use the logic they find in other software; lawyers transform old arguments to fit new facts; cinematographers, actors, choreographers, architects, and sculptors all engage in the process of adapting, transforming, and recombining what is already "out there" in some other form. This is not parasitism: it is the essence of authorship.(165)
The notion that all expression incorporates, by necessity, that which came before it is so widely accepted that it has even been assigned an acronym--"OTSOG"--in recognition of Sir Isaac Newton's observation that his vision was extended by standing "on the shoulders of giants."(166)
"Piracy or plagiarism of a work occur, according to Milton, 'if it is not bettered by the borrower.' Stravinsky added the right of possession to Milton's distinction when he said, 'A good composer does not imitate, he steals.' "(167) To the extent that the law of copyright does not recognize this aspect of the creative muse, it is the law of copyright-- and not the muse--that is out of step, unless we as a society are prepared to sacrifice art to the fetish of copyright.(168) The problem, then, is to define a procedure by which the law of copyright may be administered in harmony with the artistic imperative.
Having identified an apparent conflict between the administration of copyright law (as applied to Negativland and similarly situated artists) and the First Amendment, the final task incumbent upon this article is to attempt to solve the problem. How can the law of copyright function to embrace freedom of expression, encourage authorship, and still make room for artists such as Negativland to work within their chosen oeuvré? This article offers the following suggestions:
Deny preliminary injunctions except when the plaintiff can demonstrate genuine substantial harm and absence of a countervailing public benefit. Footnote 10 of the Campbell opinion(169) touched upon an important matter--perhaps too important to have been relegated to a footnote. It recognized that many copyright cases are easy: "in the 'vast majority of cases, [an injunctive] remedy is justified because most infringements are simple piracy.' "(170) Genuine substantial harm to the copyright owner is clear in such cases of "simple piracy" because each dollar collected by the infringer is necessarily a dollar denied to the rightful owner. Moreover, there is no public interest in pirated works to counterbalance the harm suffered by the owner.
The Court's footnote also recognized, however, that some cases are not so easy: "there may be a strong public interest in the publication of the secondary work [and] the copyright owner's interest may be adequately protected by an award of damages for whatever infringement is found."(171) Cases of this sort touch upon the goals of copyright (i.e., the public interest) and the goals of the First Amendment (compare the language in the passage quoted above with the Supreme Court's distinction between injunctive relief and an award of damages for libel in Near v. Minnesota(172)). Courts should be wary of sacrificing these goals except in the most egregious cases; footnote 10 is an example of a court attempting to strike the proper balance.
Abandon the distinction between parody and other transformative works; instead, create a workable distinction between transformative works and derivative works. As the Supreme Court said in Campbell, "the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works."(173) In light of the theories of authorship discussed in a previous section of this article, it might even be said that the goal of copyright is only furthered by transformative works; any original work protected by copyright necessarily incorporates elements of previous works. The Campbell decision, however, did not authorize transformative appropriation in general. Instead, it singled out parody as being particularly favored.(174) Whatever else may be said about this distinction, it is clearly not workable in practice.
Consider, for instance, the following example:
[T]he Capitol Steps, a political satire musical group, has recorded a song, "Like a Suburban Drone," that cleverly uses Bob Dylan's famous song "Like a Rolling Stone." By substituting lyrics that describe the bourgeois, middle-class life now led by the people who may have associated themselves in the 1960s with Dylan's lyrics, the song lampoons those individuals precisely by its use of the original song. This type of use should be considered a parody for fair use purposes.(175)
Does Like a Suburban Drone pass the Supreme Court's test from Campbell?(176) Are the Capitol Steps commenting on Dylan's song, on Dylan himself, or on "people who may have associated themselves...with Dylan's lyrics"? Similarly, was Negativland's U2 a comment on I Still Haven't Found What I'm Looking For, on U2, on Casey Kasem, or on the cultural industry of which U2 and Kasem are part? Can these questions be answered in any principled way, or do the answers depend as much on the subjective reactions of the audience as on the works themselves? Would a judge that is unfamiliar with Bob Dylan or U2 answer these questions in the same way as another judge might?
Having identified the importance of transformative works, the Court may have been conscious of a difficult problem lurking in the background--while the creation of transformative works clearly advances the goals of copyright, the creation of derivative works is a right expressly reserved by the Copyright Act to the copyright owner.(177) A derivative work is defined in the statute as "a work based upon one or more preexisting works...in which a work may be recast, transformed, or adapted."(178) It is not immediately obvious how the limitations set out in the statutory language may be reconciled with the constitutional purpose of copyright, which (Campbell tells us) is furthered by transformative works. Perhaps the Court's distinction between parody and other transformative works was an implicit attempt to address this paradox. If that is the case, the attempt should be recognized as a failure.
Still, a line must be drawn somewhere between a copyright owner's right to create a legitimate derivative work (for instance, a novelist's right to adapt her work as a screenplay, or translate it into Spanish) and the public's interest in truly new, albeit transformative, works. As is often the case in matters of copyright, it will not be an easy line to draw. The place to start, however, might be a close examination of the idea of "authorship." Recall that the Copyright Act speaks in terms of "ideas" and "expression;" the latter is protected while the former is not.(179) Leaving aside the problem of distinguishing one from the other,(180) the notion is interesting here because recognizes that a work of authorship necessarily incorporates both ideas and the expression of those ideas. Copyright law holds that an idea alone does not constitute authorship; that idea must be expressed in a particular way. Another author is perfectly free to express the very same idea in another manner.
There is no reason why the same principle could not be applied in reverse--it would be just as reasonable to conclude that expression alone does not constitute authorship, and that another author is free to employ preexisting expression to convey a new idea. Infringement would then consist of appropriating another author's combined ideas and expression. Analyzed from this perspective, it is likely that a court would conclude that Luther Campbell sought to express a different idea than Roy Orbison had in mind, or that Negativland sought to express a different idea than U2 or Casey Kasem had in mind. Under the test suggested here, neither use would be an infringement. And in neither case would there be a need to examine the four fair use factors, because fair use would not be an issue in the absence of a finding of infringement.
In the case of transformative works, replace the defense of fair use with the presumption of noninfringement. Fair use is currently conceived as an affirmative defense; it falls upon the defendant to demonstrate that a challenged use is "fair."(181) This places a tremendous burden on the defendant, and subjects works that may be of public benefit--and thus squarely within the constitutionally mandated goals of copyright, and the sphere of First Amendment interests--to the uncertain risks of litigation. If authorship was defined as the marriage of ideas and expression, however, then the burden would properly fall upon the plaintiff to demonstrate that both expression and ideas had been appropriated.
In the case of outright plagiarism or piracy, the additional burden would be slight. Few clear-cut cases of infringement would raise difficult questions under such a scheme. On the other hand, cases involving appropriation that is arguably transformative would undeniably place a greater hardship on plaintiffs. Such a result is troubling, perhaps, but not unacceptably so if the real goals of copyright are kept firmly in mind.(182) An author is granted a statutory monopoly over a work only because that monopoly is in the public interest; it is not unreasonable to place an affirmative burden on the author to defeat a colorable claim that suppression of an appropriating work is not adverse to the public interest.
Realize that Justice Holmes was wrong--judges must make artistic value judgments. Holmes was undoubtedly correct that it is a "dangerous undertaking"(183) for judges to evaluate the worth of a work. For that matter, most judges are probably not well qualified to undertake any sort of critical analysis of a work of art. The fact remains, however, that many copyright cases already require judges to engage in this sort of analysis. For instance, how can a court determine whether a work is a parody (that is, a work that comments on the original) without inquiring into the artist's intent? Is there any inquiry that is closer to the heart of art criticism than the question of what the artist is trying to say?
Consider also the issues raised by the third statutory fair use factor, "the amount and substantiality of the portions used."(184) In evaluating parodies under this factor, courts have been directed, inter alia, to look to whether the artist used more than necessary to "conjure up" the original,(185) or has taken the "heart" of the original.(186) At root, these issues are nothing more than inquiries into the artistic process itself--What materials are necessary to effectively communicate an idea? What is the theme of the original work?
It is indeed dangerous to ask judges to enter this arena. It is more dangerous still, however, to address problems of this sort while steadfastly denying that judges are making artistic value judgments. To do so creates a risk that such judgments are made in an undirected and unprincipled manner, and cases may be cited which arguably exemplify this very danger.(187) As long as the law clings to the fiction that courts are not making artistic judgments, there is unlikely to be any effective oversight of the artistic judgments that are--by necessity--being made.
In the seminal American case interpreting the doctrine of fair use, Justice Story wrote: "Patents and copyrights approach, nearer than any other class of cases belonging to forensic discussions, to what may be called the metaphysics of the law, where the distinctions are, or at least may be, very subtle and refined, and, sometimes, almost evanescent."(188) It is hoped that this article has explored the ways in which such "metaphysical distinctions" might be redrawn in a manner more solicitous of the imperatives of art, the underlying goals of copyright, and the requirements of the First Amendment.
The case of Negativland's U2 was chosen to illustrate these issues, not because it is an especially important case, but rather because it may be a distressingly common one. It requires no great imagination to see how the problems Negativland faced might confront any artist with a unique mode of creative expression and a desire to comment on the surrounding culture. This article has nominally been about Negativland and their record, but if it has been successful, it has also raised questions and highlighted problems that should concern anyone with an interest in art and free expression.
* Rod McCarvel, Attorney at Law. E-mail: email@example.com.
This paper was submitted to the Nathan Burkan Memorial Competition, and was awarded second place among entries at Case Western Reserve University School of Law. Copyright © 1996; reproduced by permission of the American Society of Composers, Authors and Publishers (ASCAP).
1. Negativland's Mark Hosler, to unidentified FBI agent investigating a death threat against Casey Kasem, quoted in Brian Boyd, Over to U2, Sunday Times (London), August 29, 1993, § 9 (Features), at 24.
2. Negativland, Fair Use: The Story of the Letter U and the Numeral 2, at 154 (1995), [hereinafter Negativland], reproducing Negativland, In Fair Use Debate, Art Must Come First, Billboard, Dec. 25, 1993.
3. Richard Harrington, On the Beat; U2's Double Trouble, Washington Post, December 18, 1991, at B7. Spin Magazine, in naming U2 as one of the ten best recordings of 1991, described it as "quite possibly the most subversive rock record ever made" (quoted in Boyd, supra note 1).
4. Among these was a comment directed specifically at U2: "This is bullshit. Nobody cares. These guys are from England [sic] and who gives a shit?" Boyd, supra note 1.
5. U.S. Const. amend. I.
6. 17 U.S.C. §§ 101-810; 1001-1010 (1994).
7. Negativland, supra note 2, at 144, reproducing Plaintiff's Opposition to Defendant's Motion for Summary Judgment, Ginn v. Joyce, et al., Case No. CV92-6692DWW(JGx), C.D. Cal. (filed Nov. 10, 1992).
8. Negativland, supra note 2, at vi.
9. A substantial portion of the complaint, Island Records v. SST Records, Case No. CV91-4735AAH(GHKx) is reproduced in Negativland, supra note 2, at 4-20. The deceptive packaging claim, made pursuant to §43(a) of the Lanham Trademark Act (15 U.S.C. §1125(a)), was in response to the cover in which U2 was released--an estimated 90% of the front was taken up with the title, "U2," printed over the silhouette of a U2 spy plane. The artists' name, "Negativland," was printed in much smaller letters at the bottom. Island Records appeared to be especially concerned about the cover because a new recording by U2 was due to be released shortly.
10. Negativland, supra note 2, at 37-40, reproducing Final Judgement, Order and Decree (filed Nov. 13, 1991).
11. Unsound Bytes? Digital Recording Legal Aspects, Computer Pictures, Vol. 11 ; No. 3, May, 1993. An SST press release (reproduced in Negativland, supra note 2, at 46) set the exact amount at $29,392.55.
12. Negativland, supra note 2, at 63-64, reproducing letter of Feb. 26, 1992 from Evan S. Cohen (of the law firm of Cohen and Luckenbacher), counsel for Greg Ginn, to Don Joyce, Richard Lyons, and Chris Grigg (members of Negativland).
13. Id. at 50-53, reproducing SST press release of Feb. 3, 1992.
14. Id. at 27-28, reproducing letter from Negativland to Greg Ginn, October 31, 1991.
15. Id. at 41, reproducing letter from Negativland to Greg Ginn, Dec. 11, 1991. Negativland's objection to not having been consulted in the settlement negotiations may have had a defensible moral basis, but their legal position was shaky. Negativland's contract stated:
SST Records and our designees shall have the exclusive worldwide right in perpetuity from the date hereof to manufacture, distribute, and advertise records or other reproductions embodying the master recordings.
Id. at 256. In other words, SST owned the copyright in U2 as a sound recording. Any liability arising from the ownership or distribution of U2 fell upon SST (in the absence of contractual indemnification), and although the members of Negativland were named as defendants in the complaint filed by Island Records, SST was the party with property at issue.
16. Negativland, supra note 2, at 31, reproducing fax from U2 producer Brian Eno to Negativland (emphasis in the original).
17. Boyd, supra note 1.
18. This observation is not intended to raise some sort of "unclean hands" argument with respect to U2; rather, it foreshadows the discussion of appropriation within the arts found infra at notes 159-68 and accompanying text.
19. "The Edge" is the professional name employed by Dave Evans. See Bill Flanagan, U2 at the End of the Word 16 (1995).
20. Negativland, supra note 2, at 83, reproducing interview with the Edge for Mondo 2000 magazine.
21. Id. The display of the copyrighted material to a large, paying audience would certainly appear to infringe upon the rights granted to the owners of the copyrights under 17 U.S.C. §106(5), the right to "display the copyrighted work publicly," in the absence of a valid defense.
22. Negativland, supra note 2, at 83.
23. Id. at 23, reproducing Negativland press release of Nov. 10, 1991.
24. Now out of print. The booklet has been replaced by Negativland, supra note 2, a more complete and timely presentation of the same general material.
25. Id., at 103-111, reproducing the complaint in the case of Ginn v. Joyce, et al., Case No. CV92-6692DWW(JGx) (filed Nov. 10, 1992).
26. The claim of copyright infringement was based on the inclusion in the booklet of documents such as SST press releases, letters from Ginn to the members of Negativland (this element of the complaint has been described as "suing for printing threats to sue," Richard Harrington, U2's Obscure Distraction, The Washington Post, Feb. 10, 1993, at B7, quoting The Village Voice), and an SST bumper sticker.
27. This claim was based on the inclusion of an SST credit report, obtained by allegedly fraudulent means. See Negativland, supra note 2, at 65. The credit report (for SST as a corporate entity, allegedly included in order to refute Ginn's claim that neither he as an individual nor SST as an entity could afford to pay Island the amount owed pursuant to the settlement agreement between them) was obtained in the name of "Gary Powers." Francis Gary Powers was, of course, the name of the U2 pilot shot down over the Soviet Union in 1960. His son, Francis Gary Powers, Jr., contributed the forward to Negativland's book Fair Use.
28. SST obtained a preliminary injunction, prohibiting further sale of the booklet. Stephen B. Thau, Note, Copyright, Privacy, and Fair Use, 24 Hofstra L. Rev. 179, 235 (1995), citing Ginn v. Joyce, No. 92-6692 (C.D. Cal. Sept. 14, 1993) (order denying in part and granting in part defendant's motion for summary judgment).
29. Negativland, supra note 2, at 166-67. The terms of the settlement specified that Negativland would indemnify SST for 75% of the cost of the settlement with Island and Warner/Chappell (although Greg Ginn and SST had originally claimed losses of $90,624.33, see supra note 15 and accompanying text, only $41,317.00 could ultimately be proved; royalties already withheld covered all but approximately $3000 of the agreed 75%).
The agreement also specified that Negativland would pay 8.98 cents per copy sold of The letter U and the Numeral 2 or any other work which reproduces the disputed documents (including Negativland, supra note 2), that such royalty rate would quadruple unless Negativland agreed to devote four pages in any such work to whatever text Ginn chose to submit (see Id., at 171-75 for Ginn's contribution), and that they would allow Ginn to "sample" any portion of any Negativland recording, as well as the booklet The letter u and the Numeral 2 (or any similar work, including Negativland, supra note 2) for his own purposes.
In return, Ginn and SST would agree that their usual practice of paying royalties for compact disk sales based on the list cost of vinyl LP's was a violation of applicable contracts (a serious issue, since several other SST acts objected to this practice as well).
30. Id. at 181, reproducing fax of June 29, 1994, from U2 manager Paul McGuinness to Negativland.
31. Id. at 183, reproducing fax of Sep. 27, 1994, from Andrew Lewis, Vice President of Business Affairs, Island Records).
32. Id. at 182, reproducing fax of Sep. 12, 1994, from Crispin Evans, Director of Legal and Business Affairs, PolyGram Music).
33. Id. at 137, reproducing letter from Casey Kasem to Negativland, Aug. 16, 1993 (emphasis in the original).
34. Id. at 78.
35. Id. at 79, reproducing letter of Apr. 29, 1992, from Mark S. Armbruster (of the law firm of Armbruster, Adler, Briskin & Glushon) to Negativland and Island Records.
36. See, e.g., Id. at 94, 128, 138, and 185.
37. Id. at 132. One fan went so far as to threaten the lives of Kasem and his family; it should be noted that Negativland did not endorse the behavior of this unknown individual.
38. Id. at 116, reproducing letter of Jan. 8, 1993, from Casey Kasem to Elizabeth Wilding-White (emphasis in the original).
39. Id. at 183, reproducing fax of Andrew Lewis (see supra note 31):
Island Records, Inc. ("Island") has no objection to entering into a license with Negativeland [sic] whereby Negativeland will be entitled to release on its own Seeland label the Negativeland parody recording "I Still Haven't Found What I'm Looking For" [sic] provided that as a condition precedent of such license Negativeland has obtained the prior written consent of all other relevant parties, including Casey Kasem, and that Casey Kasem expressly agrees in writing (in a form acceptable to Island) that he forever waives any claim which he may have against Island arising from the license of rights to Negativeland.
40. Examples include breach of contract and Fair Credit Reporting Act claims filed by SST; see supra, notes 25-27 and accompanying text.
41. Pierre N. Leval, Commentary, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1116-17 (1990) [hereinafter Leval, Standard].
42. William F. Patry & Shira Perlmutter, Fair Use Misconstrued: Profit, Presumptions, and Parody, 11 Cardozo Arts & Ent. L.J. 667, 698 (1993).
43. 17 U.S.C. § 102:
(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:
(1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works.
(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated or embodied in such work.
44. Section 102 (a) specifies eight media which are explicitly "works of authorship," but does not limit the title to just those eight. Rather, it "include[s]" the enumerated examples. "The terms 'including' and 'such as' are illustrative and not limitative." 17 U.S.C. 101.
45. "Original, as the term is used in copyright, means only that the work was independently created (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity." Feist Pub. v. Rural Tel. Serv., 499 U.S. 340, 345 (1991).
46. In order to be "fixed" for purposes of copyright, a work must be "sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration." 17 U.S.C. 101.
47. Complaint, Island v. SST (see supra note 9), reproduced in Negativland, supra note 2, at 5.
48. In the absence of a formal complaint, one may only speculate as to the legally cognizable harms Kasem might allege. In addition to copyright violation, the facts might support a claim based on a state law action sounding in the right of privacy or publicity. A detailed examination of these doctrines is beyond the scope of this article; for analyses of some of the issues that might be involved in such a case see Gretchen A. Pemberton, The Parodist's Claim to Fame: A Parody Exception to the Right of Publicity, 27 U.C. Davis L. Rev. 97 (1993); Thau, supra note 28.
49. 17 U.S.C. § 106:
Subject to sections 107 through 120, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease or lending;
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; and
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly.
50. "To 'perform' a work means to recite, render, play, dance, or act it...." 17 U.S.C. § 101.
51. "A 'derivative work' is a work based upon one or more preexisting works, such as a...sound recording,...or any other form in which a work may be recast, transformed, or adapted." Id.
52. 17 U.S.C. § 106.
53. The recent enactment of the Digital Performance Right in Sound Recordings Act of 1995, Pub. L. No. 104-39, 109 Stat. 336 (1996), amends this provision to grant a performance right in the case of works transmitted in digital format. See Washington Legislative Report, ABA Sec. Intell. Prop. L. Newsl. (Vol. 14, no. 2, Winter 1996) at 20.
54. "[T]he exclusive rights provided by clauses (1) and (3) of section 106...are subject to compulsory licensing under the conditions specified by this section." 17 U.S.C. § 115.
55. 17 U.S.C. § 107 provides:
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include--
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for a nonprofit educational purposes;
(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 or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
56. Mark Twain's Notebook 381 (Albert B. Paine ed., 1972), quoted in Paul Tager Lehr, Note: The Fair-Use Doctrine Before and after "Pretty Woman's" Unworkable Framework: The Adjustable Tool for Censoring Distasteful Parody, 46 Fla. L. Rev. 443 (1994).
57. Campbell v. Acuff-Rose Music, Inc., 114 S. Ct. 1164, 1170 (1994). The opinion describes the statute as "recogniz[ing]," rather than creating, the fair use doctrine because "Congress meant § 107 'to restate the present judicial doctrine of fair use, not to change, narrow, or enlarge it in any way.' " Id. (citations omitted).
58. Stewart v. Abend, 495 U.S. 207, 236 (1990) (quoting Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 448 (1984)).
59. 114 S. Ct. at 1170 (citations omitted).
60. Roxana Badin, Comment, An Appropriate(d) Place in Transformative Value: Appropriation Art's Exclusion from Campbell v. Acuff-Rose Music, Inc., 60 Brooklyn L. Rev. 1653, 1677 (1995), citing H.R. Rep. No. 102-836, 102d Cong., 2d Sess. 9-10 (1992).
61. Campbell, 114 S. Ct. at 1171.
62. Patry & Perlmutter, supra note 42, at 667 (citations omitted).
63. Acuff-Rose Music, Inc. v. Campbell, 972 F.2d 1429, 1442 (1992) (Nelson, J., dissenting).
64. Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 451 (1984).
65. 972 F.2d 1429, 1439.
66. 114 S. Ct. at 1174.
67. Id. The Court went on to note that "Congress could not have intended such a rule, which certainly is not inferable from the common-law cases, arising as they did from the world of letters in which Samuel Johnson could pronounce that '[n]o man but a blockhead ever wrote, except for money.' " Id., citing 3 Boswell's Life of Johnson 19 (G. Hill ed. 1934) (alteration in the original).
68. Id. at 1171. A "transformative" use is describes as one that "adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message." Id., citing Leval, Standard, supra note 41, at 1111 (1990).
69. 114 S Ct. at 1171.
70. Id. at 1172.
72. "I am not so assured that 2 Live Crew's song is a legitimate parody." Id. at 1181 (Kennedy, J., concurring). See also Lehr, supra note 56, at 474.
73. 114 S. Ct. at 1171 (alteration in the original, citations omitted).
74. Negativland, supra note 2, at 136, reproducing letter of Aug. 16, 1993, from Casey Kasem to Negativland.
75. 17 U.S.C. § 102.
76. Campbell, 114 S. Ct. at 1175.
77. "The fact that a work is unpublished is a critical element of its 'nature.' " Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 564 (1985).
78. "The fact that a work is unpublished shall not itself bar a finding of fair use…." 17 U.S.C. § 107.
79. "[T]he scope of fair use is narrower with respect to unpublished works." Harper & Row, 471 U.S. at 551. See also Salinger v. Random House, Inc., 811 F.2d 90 (2d Cir.), cert. denied, 484 U.S. 890 (1987), at 97: "[Unpublished works] normally enjoy complete protection against copying any protected expression."
80. L. Ray Patterson, Free Speech, Copyright, and Fair Use, 40 Vand. L. Rev. 1, 2, n.4 (1987).
81. "The issue of the scope of 'fair use' for unpublished works arose during discussions on abolishing the dual system of copyright protection, 'state protection for unpublished works, [and] federal protection for published works.' " Andrea D. Williams, The Fair Use Doctrine and Unpublished Works, 34 How. L.J. 115, 118 (1991) (quoting William F. Patry, Fair Use Privilege in Copyright Law 441 (1985), alteration in the original).
82. Supra note 57.
83. See, e.g., Patterson, supra note 80, at 65, n.214 (discussing Pacific & Southern Co. v. Duncan, 744 F.2d 1490 (11th Cir. 1984) and "the fiction that the public performance of a work does not constitute publication."
84. "To perform or display a work 'publicly' means--
...(2) to transmit or otherwise communicate a performance or display of the work...."
17 U.S.C. § 101 (emphasis added).
85. "a public performance or display of a work does not of itself constitute publication." Id.
86. Carl A. Falstrom, Note: Thou Shalt Not Steal: Grand Upright Music Ltd. v. Warner Bros. Records, Inc. and the Future of Digital Sound Sampling in Popular Music, 45 Hastings L.J. 359, 364 (1994) (citations omitted).
87. Id. at 360 (citing Grand Upright Music v. Warner Bros. Records, Inc., 780 F. Supp. 182, 185 (S.D.N.Y. 1991).
88. Id. at 367-68 (citations omitted).
89. 17 U.S.C. § 114 (b), (emphasis supplied).
90. Digital sampling is an area spawning its own body of legal commentary. The interested reader is referred to Falstrom, supra note 86, and Jason Marcus, Don't Stop That Funky Beat: The Essentiality of Digital Sampling to Rap Music, 13 Hastings Comm. & Ent. L.J. 767 (1991).
91. Harrington, supra note 3, quoting Eric Levine, Senior Director of Business Affairs, Island Records.
92. See, e.g., Harper & Row, 471 U.S. at 566: "This last factor is undoubtedly the single most important element of fair use."
93. Leval, Standard, supra note 41, at 1124.
94. "The copyright is limited to those aspects of a work--termed 'expression'--that display the stamp of the author's originality." Harper & Row, 471 U.S. at 547.
95. Harper & Row, 471 U.S. at 566-67, citing 1 Melville B. Nimmer, Nimmer on Copyright, § 1.10[D], 1-87 (1984).
96. Id. at 568.
97. Campbell, 114 S. Ct. at 1178-79. It should be noted that the Court also considered the possibility that "a lethal parody, like a scathing theater review, kills demand for the original," Id. at 1179, but that such market effect is permissible in the case of an otherwise fair parody.
98. In granting SST's motion for a preliminary injunction against the sale of Negativland's original Fair Use booklet, the judge noted that "[t]he items were reprinted in a magazine and sold for profit. Even though the items held no commercial value for the plaintiffs, they delivered profit to the defendants." Thau, supra note 28, at 235. In Campbell, the Court noted that "[t]he fact that 2 Live Crew's parody sold as part of a collection of rap songs says very little about the parody's effect on a market for a rap version of the original." 114 S. Ct. At 1179. This language might be interpreted as casting doubt on the sort of analysis employed here. However, the Court's conclusion in this regard seems to depend on the parodic nature of the allegedly infringing use; it does not necessarily follow that a non-transformative reproduction (such as Negativland's use of the disputed material) would be analyzed in the same manner.
99. "[F]air use has historically been and ought to remain what its name suggests: an exemption from copyright infringement for uses that are fair. What is fair is as fact-specific and resistant to generalization in this context as it is in others." Lloyd L. Weinreb, Fair's Fair: a Comment on the Fair Use Doctrine, 103 Harv. L. Rev. 1137, 1138 (1990).
100. Erin Maggio Calkins, Deciphering the Fair Use Doctrine: Campbell v. Acuff-Rose Music, Inc. 28 Creighton L. Rev. 505, 519-20 (1995).
101. Patterson, supra note 80, at 3-4.
102. The Federalist No. 43 (James Madison), quoted in Information Infrastructure Task Force, Intellectual Property and the National Information Infrastructure: The Report of the Working Group on Intellectual Property Rights 19 (1995).
103. U.S. Const. art. I, § 8, cl. 8.
104. Patterson, supra note 80, at 13-14.
105. Pierre N. Leval, Campbell v. Acuff-Rose: Justice Souter's Rescue of Fair Use, 13 Cardozo Arts & Ent. L.J. 19, 22 (1994) [hereinafter cited as Leval, Rescue] (the goal of copyright is "to bring intellectual enrichment to the public by giving authors a limited control over their writings to provide them with financial incentive to create.").
106. U.S. Const. amend. I.
107. Harper & Row, 471 U.S. at 558.
108. Pacific & Southern Co. v. Duncan, 744 F.2d 1490, 1499 n. 14 (11th Cir.), cert. denied, 471 U.S. 1004 (1984).
109. 471 U.S. at 555-60.
110. Patterson, supra note 80, at 17.
111. Id., quoting 2 The Documentary History of the Ratification of the Constitution, Ratification of the Constitution by the States, Pennsylvania 454 (1976).
112. See, e.g., 471 U.S. at 560.
113. Cohen v. California, 403 U.S. 15, 26 (1971).
114. 471 U.S. at 556, quoting Nation Ent. Inc. v. Harper & Row, 723 F.2d 195, 203 (1983), (alteration in the original).
115. 403 U.S. 15 (1971).
116. Id. at 19-20.
117. Id. at 25. It is interesting to note that Paul Cohen was represented by noted copyright authority Melville Nimmer. Dorean M. Koenigfn, Joe Camel and the First Amendment: The Dark Side of Copyrighted and Trademark-Protected Icons, 11 T.M. Cooley L. Rev. 803, 805 n. 15 (1994).
118. "This is not, for example, an obscenity case.... This Court has also held that the States are free to ban the simple use, without a demonstration of additional justifying circumstances, of so-called 'fighting words'.... [And while] this Court has recognized that government may properly react in many situations to prohibit intrusion into the privacy of the home of unwelcome views and ideas which cannot be totally banned from the public dialogue, we have consistently stressed that 'we are often "captives" outside the sanctuary of the home and subject to objectionable speech.' " 403 U.S. at 20-21 (citations omitted).
119. Weinreb, supra note 99, at 1137.
120. See, e.g., 471 U.S. at 560; Triangle Publications, Inc. v. Knight-Ridder Newspapers, Inc., 626 F.2d 1171, 1174 (5th Cir. 1980) ("The fair use doctrine frequently serves to eliminate potential conflicts between copyright and free speech.").
121. Leval, Rescue, supra note 105, at 22, quoting Cary v. Kearsley, 170 Eng. Rep. 679, 680 (K.B. 1802) (Lord Ellenborough).
122. The vagueness doctrine is not limited to First Amendment concerns; it has been held, however, to have special force in such cases. See, e.g., Grayned v. Rockford, 408 U.S. 104, 108-109 (1972)
123. Laurence Tribe, American Constitutional Law 1033 (1988), quoting Connally v. General Const. Co., 269 U.S. 385, 391 (1926).
124. 408 U.S. at 109.
125. "[T]here is ample precedent deciding almost every copyright issue in almost every conceivable direction."Jessica Litman, The Public Domain, 39 Emory L.J. 965, 998 (1990).
126. Compare Loew's Inc. v. Columbia Broadcasting Sys., 131 F. Supp. 165 (S.D. Cal. 1955), aff'd sub nom. Benny v. Loew's Inc., 239 F.2d 532 (9th Cir. 1956), aff'd without opinion sub nom. Columbia Broadcasting Sys., Inc. v. Loew's Inc., 356 U.S. 43 (1958) (Jack Benny's parody of the film Gaslight not a fair use) with Columbia Pictures Corp. v. National Broadcasting Co., 137 F. Supp. 348 (S.D. Cal. 1995) (decided by the same court as--and within a year of--Loew's, holding Sid Caesar's parody of the film From Here to Eternity to be fair use). Compare also American Geophysical Union v. Texaco, Inc., 37 F.3d 881 (2d Cir. 1994) (photocopying of scholarly articles by research scientists not a fair use) with Princeton Univ. Press v. Michigan Document Services, Inc., 74 F.3d 1512 (6th Cir. 1996) (photocopying of academic materials in "coursepacks" for student use deemed fair). The fact that Princeton Univ. Press has been vacated and set for rehearing en banc, 1996 U.S. App. LEXIS 7474, does not indicate that the fair use doctrine is any less vague; rather, it merely underscores the judicial confusion over how the doctrine ought to be applied in specific circumstances.
127. For instance, in Campbell the district court granted summary judgment to the defendants, Acuff-Rose Music, Inc. v. Campbell, 754 F. Supp. 1150 (M.D. Tenn. 1991). The court of appeals reversed, 972 F.2d 1429 (6th Cir. 1992). The Supreme Court then reversed and remanded, 114 S. Ct. 1164 (1994). See also Leval, Standard, supra note 41, at 1105, n.1 and accompanying text.
128. Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 251 (1903).
129. Lehr, supra note 56, at 460 (citations omitted).
130. 677 F.2d 180 (2d Cir. 1981).
131. Id. at 185 (emphasis supplied).
132. 581 F.2d 751 (9th Cir. 1978), cert. denied sub nom. O'Neill v. Walt Disney Prods., 439 U.S. 1132 (1979).
133. Id. at 753.
134. 604 F.2d 200 (2d Cir. 1979).
135. Id. at 202.
136. Mike Godwin, staff counsel for the Electronic Frontier Foundation (quoted in EFF Quotes Collection 6.0, May 18, 1995, available on the Internet at http://www.eff.org/pub/EFF/quotes.eff, and on file with the author).
137. Leval, Rescue, supra note 105, at 23-24.
138. Supra note 10 and accompanying text.
139. 17 U.S.C. § 502(a):
Any court having jurisdiction of a civil action arising under this title may, subject to the provisions of section 1498 of title 28, grant temporary and final injunctions on such terms as it may deem reasonable to prevent or restrain infringement of a copyright.
140. Tiffany D. Trunko, Note: Remedies for Copyright Infringement: Respecting the First Amendment, 89 Colum. L. Rev. 1940, 1943 (1989).
141. Fed. R. Civ. P. 65 (b).
142. Trunko, supra note 140, at 1943.
143. 283 U.S. 697 (1931).
144. Id. at 702.
145. 403 U.S. 713 (1971).
146. Id., quoting Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963).
147. Although Near involved an injunction based upon material that had already been published, the injunction extended prospectively to prohibit further publication of similar material. 283 U.S. at 704-05.
148. Trunko, supra note 140, at 1946 (emphasis supplied).
149. Id. at 1941, n.6.
150. The statutory language is permissive: "Any court having jurisdiction...may...grant temporary and final injunctions." 17 U.S.C. § 502(a).
151. Trunko, supra note 140, at 1941, n.6, citing Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 556-59 (1976); Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, 413 U.S. 376, 396 (1973) (Burger, C.J., dissenting).
152. 114 S. Ct. 1164.
153. Id. at 1171, n.10.
154. Leval, Rescue, supra note 105 at 25.
155. 114 S. Ct. at 1171, n.10.
156. It will be particularly interesting to see how courts apply the parenthetical comment--referring to "parodies (or other critical works)"--in light of the Campbell decision's explicit focus on parody.
157. Supra note 128 and accompanying text.
158. Bleistein, 188 U.S. at 251.
159. R.E.M., King of Birds, on Document (I.R.S. Records, 1987).
160. Badin, supra note 60, at 1656.
161. Note, Beyond Rogers v. Koons: A Fair Use Standard for Appropriation, 93 Colum. L.Rev. 1473, 1478-79 (1993).
162. 751 F. Supp. 474 (S.D.N.Y. 1990), aff'd, 960 F.2d 301 (2d Cir.), cert. denied, 113 S. Ct. 365 (1992).
163. See, e.g., Badin, supra note 160; Note, supra note 161.
164. Litman, supra note 125, at 966 (citations omitted).
165. Id. at 966-67 (citations omitted).
166. Laurie Stearns, Comment, Copy Wrong: Plagiarism, Process, Property, and the Law, 80 Calif. L.Rev. 513, 516 n.8 (1992), citing Lotus Dev. Corp. v. Paperback Software Int'l, 740 F. Supp. 37, 77 (D. Mass. 1990).
167. John Oswald, Plunderphonics (or, Audio Piracy as a Compositional Prerogative), (1985), a paper presented at the Wired Society Electro-Acoustic Conference in Toronto (also published in Musicworks no. 34, as a booklet by Recommended Quarterly, and later revised for Whole Earth Review no. 57 as Bettered by the Borrower), reprinted in Negativland, supra note 2 at 213, 216. Oswald was dissuaded from distributing (on a noncommercial basis) his audio collage Plunderphonics after threats of legal action by, among others, Michael Jackson. Interestingly, an aphorism nearly identical to the one attributed here to Stravinsky has also been attributed to T.S. Elliot, see Barbara Friedman, From Deontology to Dialogue: The Cultural Consequences of Copyright, 13 Cardozo Arts & Ent. L.J. 157, 184 (1994), citing Pierre N. Leval, Fair Use or Foul?, 36 J. Copyright Soc'y 167, 169 (1989) .
168. It should be noted at this juncture that "[i]n the First Amendment context, art as a category has not received privileged status. To the contrary, well-known scholars, such as Robert Bork, have argued that art is irrelevant to fundamental First Amendment concerns." Marci A. Hamilton, Four Questions About Art, 13 Cardozo Arts & Ent. L.J. 119, 121 (1994), citing Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 Ind. L.J. 1, 27 (1971). Hamilton goes on to argue, however, that:
If art is unnecessary, a mere luxury that can be discarded when economic conditions dictate, then imagine life without it. Start stripping it away, layer by layer from your life. Remove the annual trip to a Broadway show, the semi-annual trip to the symphony, or the season tickets to the opera or the ballet. Imagine Barnes and Noble or Borders bookstores (depending on whether you are a city or a suburban dweller) without a fiction section, no paintings or posters on the walls of your office or your home, no graphics in the magazines you read, no short stories in the New Yorker, no music on the radio when you wake up in the morning, no mysteries to read on the beach, no museums, no literature or art departments in the universities. What is left? In our logocentric Enlightenment mode of thinking, rationality, work, and the subject are left. I would suggest that we would all go mad in such a world. Take any one category of art away, and survival could be sustained. But, take them all away and who would we be? Or more important, how would we be?
Id. at 123.
169. 114 S. Ct. at 1171, see also supra notes 152-56 and accompanying text.
170. Id., quoting Leval, Standard, supra note 41 at 1132 (alterations in the original).
171. Id., quoting Abend v. MCA, Inc., 863 F.2d 1465, 1479 (9th Cir. 1988), aff'd sub nom. Stewart v. Abend, 495 U.S. 207 (1990) (alteration in the original).
172. 283 U.S. at 715.
173. 114 S. Ct. at 1171.
174. Supra notes 70-72 and accompanying text. It must be emphasized that the Court did not hold that parody is per se a fair use; a work of parody must still be evaluated in light of the four statutory factors.
175. Patry & Perlmutter, supra note 42, at 715, n.211.
176. "For the purposes of copyright law, the nub of the definitions, and the heart of any parodist's claim to quote from existing material, is the use of some element of a prior author's composition to create a new one that, at least in part, comments on that author's works." Campbell, 114 S. Ct. at 1172.
177. 17 U.S.C. § 106(2).
178. 17 U.S.C. § 101 (emphasis supplied).
179. Supra notes 113-18 and accompanying text.
180. "As Judge Learned Hand observed, 'Nobody has ever been able to fix that boundary, and nobody ever can.' " Stearns, supra note 166, at 526, quoting Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d Cir. 1930), cert. denied, 282 U.S. 902 (1931).
181. Harper & Row, 471 U.S. at 561.
182. Supra notes 102-08 and accompanying text.
183. Bleistein, 188 U.S. at 251.
184. Supra notes 86-90 and accompanying text.
185. Campbell, 114 S. Ct. at 1176.
186. Harper & Row, 471 U.S. at 566.
187. See supra notes 128-36 and accompanying text.
188. Folsom v. Marsh, 9 F. Cas. 342, 344 (C.C.D. Mass. 1841) (No. 4901).