Wednesday, March 14, 2007

Patry on My Fair Ladies

William Patry has a blog post about my article My Fair Ladies here, making several points worth discussing. To begin with, he notes that “[t]he availability of fair use for sexually-themed works has had a mixed reception in the courts,” describing a number of cases – including DC Comics Inc. v. Unlimited Monkey Business, Inc., 598 F. Supp. 110 (N.D. Ga. 1984) [typo of 1994 in his post, which is why I mention it] – that predate Campbell and reject fair use in infringement claims against sexually themed parodies. Campbell, of course, rests its finding of potential transformativeness precisely on the criticism of the woman/women described in the songs and the sexual longings of 2 Live Crew, which Justice Souter imputes to Orbison as well.

I absolutely agree that there is a time element at work: the trend of favoring sexual criticism over other criticism is only a few decades old, and is probably connected to other aspects of the overt sexualization of American society. (There used to be a dispute over whether obscene works were copyrightable, a dispute now resolved in pornographers’ favor.) What my article discusses is the current situation – the fact that today, sexualization of a less overtly sexual work is the easiest and most reliable route to a finding of transformativeness, though it’s not impossible to do it other ways.

Patry takes issue with my characterization of the successive Koons cases – before Campbell, Koons lost two cases (he didn’t transform String of Puppies or his sculpture of Odie), then recently won a case in which he copied a fashion photo and put it into a painting. Post-Campbell, his situation is plainly better, even though his explanations for why he copied are virtually identical in all three cases. I find it especially striking that Koons described the woman’s legs in the photo as “nobody’s legs in particular,” and that the courts accept this characterization of an image of the female body as freely appropriable, whereas pictures of cute dogs are “somebody’s” – the copyright owner’s. Patry thinks the result is explainable on other grounds, because Koons mixed and matched images from lots of sources in the recent Blanch case rather than simply creating a three-dimensional sculpture from a single source and changing the colors, as in the earlier cases. Given the oft-cited rule that no infringer can excuse an infringement by showing how much he didn’t copy, and that transformation into sculpture did require some artistic and conceptual judgments, I am not persuaded.

But the broader point is this: one can, as courts have, find explanations that don’t explicitly rely on sexualization to justify fair use conclusions in the recent cases. But you look at the major transformative fair use winners – the ones we talk and write about, the ones in our casebooks – and you see and hear a lot about women’s bodies. Look at the transformative fair use losers – Dr. Juice, Michael Moore, Honda’s James Bond commercial – and you don’t. A feminist analysis suggests that something more than the formal reasoning in the cases is at work.

Minor point: Patry finds it significant that, in Mattel, Inc. v. Pitt, 229 F. Supp.2d 315 (S.D.N.Y. 2002), “a very sexualized take-off on Barbie,” “the parodist was a woman and the judge was a woman.” I don’t. Women can see criticism in commentary on other women’s bodies, and artists like Judy Chicago represent other women’s bodies all the time. That a female judge found transformativeness in sexualization shows that sexualization is now a readily accepted route to fair use, which is the same thing that male judges’ findings show. The question that led me to write the piece was “Why are so many of our canonical fair use cases about women’s bodies?” I think “why aren’t there more female judges?” and “why aren’t there more female artists/defendants in copyright cases?” are related questions, but they aren’t mine here.


Anonymous said...

Isn't Campbell in itself sufficient to explain the different outcomes in the Koons cases?

RT said...

But what explains Campbell? My argument is that the Court, and subsequent courts, have been willing to see sexualizing or mocking an image of a woman as itself inherently commenting on the image. And it's not that this is mistaken -- but they've been much less willing to see commentary in non-sexualizing uses.

Anonymous said...

But to substantiate the claim that courts have been more willing to see transformative commentary in sexualizing uses than non-sexualizing uses, you need to find examples in which you can attribute the differences in outcome to the sexualizing or non-sexualizing nature of the uses rather than to other factors such as exogenous changes in the law. Your article dwells on the Koons cases to prove the point that "non-sexual transformativeness arguments are notably less likely to succeed." (285) But the differences in outcomes between the pre and post-Campbell Koons cases are easily explained by Campbell (which is an exogenous change in the law from the point of view of lower courts) without resort to any other explanation.

Indeed, one of the pre-Campbell Koons cases involved a highly sexualized sculpture of a topless woman holding the pink panther (the woman, rather than the "sexual connotations of 'pink'," fn. 40, explain Koons's explanation of the piece as sexual). Having lost with Odie and Puppies, Koons settled that case. Under your hypothesis, he would have been more likely to win that one but there is little indication that that is true. On the contrary, Koons expected to lose which is why he settled.

To show that the differences in outcome are caused by something other than Campbell, you need post-Campbell cases in which no fair use was found. Your article cites a couple -- the OJ/Cat in the Hat case and the Michael Moore case -- but they are outweighed by the more numerous counterexamples in which fair use was found in non-sexualized contexts post-Capmbell. Eg, SunTrust Bank v. Houghton Mifflin Co., 268 F.3d 1257 (11th Cir. 2001) (wind done gone); Cardtoons, L.C. v. Major League Baseball Players Ass'n, 95 F.3d 959, 979 (10th Cir. 1996) (baseball cards); Lyons P'Ship, L.P. v. Giannoulas, 14 F. Supp. 2d 947, 955 (N.D. Tex. 1998), aff'd, 179 F.3d 384 (5th Cir. 1999); MasterCard Int'l Inc. v. Nader 2000 Primary Comm. Inc., No. 00 Civ. 6068 (GBD), 2004 WL 434404, at 13 (S.D.N.Y. Mar. 8, 2004); Abilene Music, Inc. v. Sony Music Entm't, Inc., 320 F. Supp. 2d 84, 86 (S.D.N.Y. 2003) (rap song parodying "Wonderful World").

In short, there is little evidence for the empirical claim that courts are more amenable to the fair use defense in cases where the use is sexualized.

William Patry said...

I agree that Campbell was quite willing to see a sexualizing or mocking image of a woman as inherently commenting on the image, and that is why I said I find it a disturbing opinion. But I don't think that makes your diffeent point that courts have been much less willing to find commentary in non-sexualized cases. Indeed, ironically post-Campbell I think the courts have been more willing to find fair use, regardless of the content. In part this is because Campbell got rid of the Sony presumptions, and in part because of the endorsement of Judge Leval's transformative use theory. Let me give you one example in a case I lost before the Second Circuit, the Bill Graham-Dorling Kindersley case, where there was no sexual content and to me no real commentary.

RT said...

I never said that sexualization is the only path to transformative use. It's just a heck of a lot more reliable than the others. (Note that all your counterexamples are defendant's wins, not plaintiff's wins against sexualizing transformations.)

Further, Campbell is not "exogenous" because its analysis depends on the idea that sexualizing a text is revealing something about the already-present meaning of the original text, and lower courts have followed that lead (the best example here is the Starballz case, where the transformation analysis is no more detailed than "this is a pornographic version of Star Wars, therefore it is transformative"). Moreover, the post-Campbell defendants' losses all pile up on the nonsexualizing side -- lower courts didn't take Campbell as a signal to treat violence, for example, as transformative.

I think your comment about "the woman, rather than the 'sexual connotations of "pink,"' explain[s] Koons's explanation" is making my point -- the woman's presence automatically injects sexuality in a way that a man's presence wouldn't. (And "pink" has plenty of sexual connotations. Koons didn't say that the sculpture was sexual. He said that the Pink Panther was already -- the quote from Koons is: "Pink Panther is about masturbation. I don't know what she would be doing with the Pink Panther other than taking it home to masturbate with.")

I also quibble with your characterization of some of the cases: Suntrust, in which the court relied (oddly heavily, given the main topic of Randall's book) on the homosexuality of the Ashley Wilkes character in TWDG; Cardtoons, which did not involve a copyright infringement claim (and I would agree that matters work somewhat differently in right of publicity cases); and Lyons, which also invoked the "sissy"/gay trope to explain why the Famous Chicken was parodying Barney.

Back to my basic question: why do we -- courts, commentators -- find sexualization of a less overtly sexual work to be so obviously commentary on the original, when we divide much more readily on whether other changes constitute commentary?

RT said...

On Patry's comment: I'm biased in favor of finding transformation more readily, so we will probably disagree on proper outcomes in a variety of cases. The Second Circuit has definitely read Campbell broadly, which in my view is a good thing.

It comes down to whether you think it's an an accident -- unrelated to attitudes about sexuality and gender -- that all the naked women end up as defense victories, but not all the critiques of violence and commercialism do likewise.

As I said in the article, I'd be really surprised if we were able to set aside our cultural conditioning in copyright cases. Thus, even if Campbell lowers the threshold for finding critical transformation, sexualization automatically gives the defendant a boost over that threshold, compared to defendants making other changes to an original.

Anonymous said...

Sorry to quibble about the Pink Panther piece, but take a look at it here and here. It's obviously sexualized, not because the figure is a woman, but because she's topless and holding her breast with one hand and the pink panther with the other. Also, the name of the sculpture as a whole is "Pink Panther." In the quote you cite, Koons appears to be saying that the sculpture is about masturbation, not the cartoon figure. I don't disagree with you that the piece can be read as sexist, but that doesn't prove your point about courts because no court found it to be fair use. The case settled, and there is no reason to believe Koons would have won.

I agree it's notable that many of the canonical fair use cases involved sexualized uses of female bodies. I'm just not convinced that the appropriate focus of your feminist critique is the courts that pronounce those uses transformative. Rather, the issue seems to be the broader culture that produces these works.

RT said...

I'm not arguing that sexism disqualifies a fair use defense. And it's not my project to establish that there's sexism in general culture or in art. I'm arguing that there's a pattern in fair use cases that isn't random and is linked to perceptions about sexuality and gender. You haven't said anything to convince me that there's no pattern.

If sexual speech is inherently or systematically liberating compared to other speech, this could be the right result. If it's not -- which is my position -- then fair use doctrine shouldn't privilege sexualization. In my opinion, it should be more willing to see transformation everywhere. That's a copyright argument, which a critique of sexism in culture doesn't provide.

Erik said...

Hi Professor Tushnet:

Your article is thought-provoking. I've long thought that when fair use's formal analytical categories fail to provide much help in explaining outcomes, looking at the works themselves is often more helpful.

I'm wondering what your thoughts are on extending this analysis to critical racial themes: Suntrust Bank, which Bill Patry has called a "politically correct" case, seems to gain a lot of traction from the fact that the work was from the perspective of slaves -- from the perspective of subordinated people. Could not your feminist analysis fit more generally into an anti-subordination pattern of fair use anslysis, whereby the more a defendant can re-cast his/her works as expressing themes of antisubordination (whether against subordination of women or racial minorities), the more likely a judge will see fair use? (At the risk of getting pre-empted, I tend to believe so, and I'm working on an article to this effect.)

RT said...

That's a really intriguing question, and I don't have a good answer -- an article on the subject would be quite useful. My intuition is that antisubordination arguments can help in certain circumstances, but (1) they're not as common in the case law as sexualization (Campbell being an example of a case where it would be hard to make such an argument, notwithstanding that black artists were appropriating a white man's song -- in order to say negative things about an imagined black woman), and (2) antisubordination arguments raise particularly difficult issues for minority v. minority cases, for example the What a Wonderful World case. What does it mean to make an antisubordination argument for fair use in such a case? Anyway, the article sounds like a great idea. I look forward to seeing it.

Anonymous said...

If your point is that fair use based on sexualization is seemingly favored, and this favoritism should be expanded to all other forms of fair use, then I agree.

Unfortunately, when reading your article, I can not get the smell of that Dworkin-MacKinnon-esque
brand of "the rules are different when I am offended" to say that "if it makes some women feel uncomfortable or offended, then the Constitution should bend to that.

Racism, sexism, patriotism, atheism, fascism, marxism, and any other "ism" that anyone can think of, cry about, or celebrate, should be examined equally under fair use. If that is your point, then give me a hammer and a hard-hat, I'd love to build that house with you.

The marketplace of ideas has "I have a dream" in one bin, The Bible in the next, Hustler Magazine in the next, the NAMBLA newsletter in the next, and Dworkin's work in the next. I believe that pushing either bin backwards, even an inch, threatens free expression.

Bring the sexism on. If you don't like it, then there is probably a large market out there for parodies of Larry Flynt.

RT said...

Marc Randazza's comment just reinforces the truism that what the reader brings to the text is as important as what the author brings. Patry thinks there should be less willingness to find transformative fair use in derivative works (and no bias in favor of sexualization); I think there should be more (and no bias in favor of sexualization). I understand myself to have written the article from that second perspective, but it's true that the core argument of this piece is: whatever your perspective on transformative use, it's wrong to give special preference to sexualization. Sexualization is neither inherently liberating nor inherently degrading.

Some First Amendment absolutists go badly wrong when they mistake judgment (aesthetic, moral, political) for advocacy of legal regulation. I think 2 Live Crew's Pretty Woman is degrading, sexist, and despicable (I'm not all that fond of Orbison's original, either). I think the result in Campbell is correct (except that it shouldn't have required a remand on market harm), and I don't think there's anything in My Fair Ladies that suggests otherwise.

A strong position in favor of free speech doesn't mandate that we celebrate everything that counts as an instance of free speech. To the contrary, "the marketplace of ideas" requires of us as citizens the willingness to condemn speech that we don't want government to suppress -- especially when the suppression would be at the behest of copyright owners, who aren't really likely to be pursuing a democratic theory of any kind.

A comment is too short to engage on the merits of MacKinnon's analysis of harm, but I feel bound to point out that "offense" is not the problem she identifies with pornography, as her essay title "Not a Moral Issue" ought to make clear. You can disagree with her that the production of pornography regularly involves recording rapes; you can disagree with her that reading and watching pornography leads to more rape and discrimination (and please don't assume I agree with her on this); but reducing her arguments to "offense" does more harm to your credibility than to hers.