Abortion criticism as fair use: parody/satire mucks up the analysis once again

Northland Family Planning Clinic, Inc. v. Center for Bio-Ethical Reform, --- F.Supp.2d ----, 2012 WL 2354350 (C.D. Cal.)

Here’s a rule worth following: Don’t sue your critics for copyright infringement. 

Northland made a video about why women choose abortion as part of an effort to de-stigmatize abortion, and various anti-choice people/entities used portions of that video in their own.  Northland sued for infringement and the court found fair use.  The defendants’ videos interspersed Northland’s footage with images of bloody fetuses, Bible quotes, etc.  One closed with Northland's name, telephone number, and the words “Your Dead baby at 10 to 12 weeks,” superimposed over a bloody, dismembered fetus.  The longest videos contained 2:22 of the original 4:41 Northland video (43%) and ran just over 4 minutes themselves.

One of the defendants, CBR, used its videos for publicity and fundraising, in that a “Donate” button appeared on the webpage with them, as it did with all pages on the site.  One of its representatives also testified that he showed the videos “every time” he did a fundraising pitch, because the videos are “part of what we are doing,” and CBR's “entire existence hangs on the goodwill of donors who want to know what we're doing and want to know what our challenges and burdens are....”   Northland submitted evidence that it had discussed licensing its video to other clinics, but once prospective licensees became aware of defendants’ videos they were no longer interested in using it, and Northland itself has curtailed its use.

The court accepted defendants’ characterization of their videos as parodies “intended to criticize, comment on, and disparage the narrator's calm manner as well as her message that good women choose to terminate their pregnancy and that abortion is ‘normal.’”  Why not just “criticism” and therefore transformative?  Good question.  The court apparently thought that, because of the pernicious language about satire in Campbell, it had to pick an acceptable type of criticism: it had to decide whether the original work was “incidental to the alleged infringer's comment on a broader topic.”  This is a terrible way to think about parody, much less transformation; the reason people target particular works is often that they are good examples of something that is more broadly familiar to the human experience.  Thus the court cited Blanch v. Koons as an example of satire instead of relying on Blanch’s overall discussion of criticism as transformativeness.

So, the videos were parodies because they used segments of the original “in alternation with macabre images of abortion procedures to deride the original work's message that abortion is ‘normal’ and that good women choose to terminate their pregnancy.”  Defendants’ videos turned plaintiff’s message on its head by contrasting the calm message of ordinariness with bloody images. 

Northland argued that there was no parody, because defendants were just using its video as a representative of the pro-choice viewpoint—“a placeholder for the pro-choice perspective” that spoke broadly about the abortion debate and not about the Northland video specifically.  Within the terms of the court’s unfortunate interpretation of parody v. satire, this argument makes sense (though of course even a “satire” can be fair use, as in Blanch).  But the court found that defendants weren’t attempting to present both sides, nor were they attacking an entirely separate subject.  Rather, they copied the Northland video “for the primary, if not exclusive, purpose of attacking it. While the accused Videos may comment globally on the abortion debate, they are primarily focused on criticizing elements of the Northland Video.”  The first part of that is true!  The second isn’t!  Whatever the Northland video had looked like or contained, defendants would have attacked it, because Northland provides abortions and defendants oppose that!  When Republicans copy Democratic campaign ads or interviews, and vice versa, they aren’t criticizing that particular clip, or if they are it’s only an intermediate goal, not a primary goal and certainly not an exclusive goal.  So too here, and it makes no sense to pretend differently.  And, yes, that is transformative fair use.

The court noted that defendants specifically disagreed with the “falsities” of the Northland video.  “Thus, the criticism is targeted at the copyrighted work specifically, not just the pro-choice position.”  Comment: No, the criticism is targeted at the views expressed in the video that abortion is a normal and reasonable choice; the video is an example of such views.  In the absence of the video, defendants would (and do!) criticize other examples of the same views.  What would it mean to criticize a work but not criticize the broader worldview it represented?  To ask such a bizarre question is to illustrate just how badly the parody/satire distinction serves us when asking a legal question about transformativeness. 

Indeed, the defendants’ videos even suggested that the Northland narrator was Satan.  Anyway, a loosely targeted parody may be sufficiently aimed at an original to count as a parody.  “Thus, even if this Court found that the accused Videos broadly criticized the pro-choice position in addition to the Northland Video, the analysis would be in accord with Campbell.”  Again, this statement reveals the fundamental weirdness of this application of Campbell: could any of the defendants, in good faith, say “we only intended to criticize this video and weren’t trying to say anything about the pro-choice position broadly”?  Of course not, and no one should expect them to in order to make a transformative fair use.

Naturally, given the expansion of “parody” to mean “transformative,” the court then has to deal with the fact that the videos aren’t funny.  They don’t have to be for purposes of fair use.  “Here, the accused Videos fall squarely within the Campbell definition of parody because there is no doubt that a viewer could, and most likely would, reasonably perceive the accused Videos to be highly critical commentary on the original, aimed at ridiculing it.”

In addition, Northland argued that the videos weren’t parodies because the original wasn’t well-known.  But that isn’t a requirement either.  An audience unfamiliar with the Northland video could still recognize that the defendants’ videos were meant to ridicule the original.  “Parody promotes the creativity copyright law is designed to foster whether the parodied work is a household name or completely unknown. The benefit of social commentary and criticism is not confined to works indicting the former. Just as the Campbell decision cautioned courts against evaluating a parody's success, so too should courts refrain from evaluating the popularity of the parodist's target. Indeed, courts have no business circumscribing the parodist's victim.”  (The court’s reasoning on this point is sound, and it found some interesting examples of lesser-known parodied works, but I’ll reiterate that this argument would have been much easier to resolve without the whole “must target this work particularly and not the genre of which it is a part” bit above.)

Given that the videos were parodies, Northland’s argument that they weren’t sufficiently transformative because they used big verbatim chunks of the original also failed.  “While courts have not addressed verbatim use of copyrighted video content in the parody branch of the fair use doctrine, it is well established that ‘wholesale copying does not preclude fair use per se.’”  Mattel v. Walking Mountain and Bill Graham v. Dorling Kindersley are just two examples of transformative verbatim copying.  Here, defendants had to make a full copy of Northland’s video “in order to distill it into the segments they would need to create their own videos.” 

And they needed to use verbatim segments because the Northland video isn’t highly recognizable and ingrained in the audience’s collective psyche.  “Unlike ‘Pretty Woman’ or Barbie, where a parodist can comment on the original with a broadly suggestive allusion, here, Defendants could not effectively comment on the Northland Video without showing verbatim excerpts that captured the essence of the message and the mannerisms of the narrator.”  (And this explains Mattel how?  Forsythe literally used segments of Barbie ….)  I would have gone with “copying is proof”—it’s always possible to criticize an imitation for exaggeration/lack of verisimilitude.  Anyway, even if the transformation was more “rudimentary” than in Campbell or Mattel, “Defendants fundamentally changed and commented on the copyrighted work. The new background soundtrack, the visuals, and the juxtaposition of the new video clips with the original creates an entirely different impact on the viewer. Thus, the accused Videos are transformative.”

The court then turned to the commercial/noncommercial distinction.  There are vastly overbroad cases out there, primarily Worldwide Church of God, saying that profit can come from things other than monetary gain, such as an increased number of adherents to a religious sect.  Here, then, defendants “at least in part” profited, because they used the videos for fundraising and spreading their message.  Using a work to solicit donations for a litigation defense of that work is commercial.  Even if they weren’t used directly for fundraising, the videos “generated traffic to the anti-abortion websites on which they were posted and incited discussion on the sites' message boards. Defendants appropriated the copyrighted material to advance their own message, and therefore derived a benefit from their use. Generating traffic to one's website or conveying one's message effectively using copyrighted material is within the type of ‘profit’ contemplated by Worldwide Church.” 

So, basically, noncommercial use is private use (except where private use is also commercial under the precedents, e.g. Napster).  Obviously I think that’s a huge mistake, and adds to the incoherence of “noncommercial” in IP law.  It also creates a tension between transformativeness and “commerciality”: if you need to convey your own message to make a transformative use, and advancing your own message makes a work commercial, then a finding in your favor on transformativeness automatically weighs against you on commerciality.  We may be living in a consumers’ republic, but that doesn’t mean that every way in which ideas are transmitted is thereby commercial.

The court added that the fact that users could make donations through a link on the same page where the videos were posted was further evidence that defendants profited from the videos.  (That they profited?  Was there any evidence that any donations came through those pages?  Never mind, Jake, it’s fair use analysis.)  At least the court dropped a but see to one of the Righthaven cases holding to the contrary.

Anyway, commercial aspects are less important when a work is significantly transformative, since even comment and criticism is generally done for profit in this country. “On balance, the profit Defendants gained from the use of Northland's copyrighted material is a minor part of the analysis in light of the transformative use of the material.”

The nature of the work isn’t all that important in parody cases, even though Northland’s video was creative; this factor weighed “slightly” in its favor.

Amount and substantiality of portion used: parody has more leeway under this factor too.  Two videos used about half of Northland’s video for half of their own.  One video was 1:17, and its entire audio track was from Northland’s, which was 27% of the audio track.  Northland argued that this was excessive.  The court disagreed.  There’s no fixed limit on what a parodist may copy.  The amount that may be taken depends on three things: first, the degree of public recognition of the original: “Close copying is impermissible when the work is well-known or familiar to the audience.”  Second, the “ease of conjuring up the original work in the chosen medium.” (Citing the terrible old Air Pirates case which found that defendants took “more than necessary,” despite the 9^th Circuit’s later disavowal of any “minimum necessary” standard.)  In graphic design, less copying is necessary to put in readers’ minds the parodied work, while “other media, such as song or speech, could have more fair use leeway, given the greater difficulty in mimicking that media.”  (This seems to me to be a reason that song parodies will ordinarily copy less than graphic parodies, not that they should copy less; and I’m not so sure about the is/ought in that is.)  Third, “the focus of the parody”: whether its overriding purpose was parodying the original, or something else.

Here, because the Northland video wasn’t well-known or familiar, defendants had to use a significant portion for the audience to appreciate the parody: they needed more than a mere allusion. 

Now we get a discussion of verisimilitude (I won’t say realism since we aren’t really interested in direct representation of reality):

Second, the Northland Video is not easy to conjure up in a sound byte or a single image. While the Ninth Circuit has not specifically opined that video or film is a difficult media to parody, the challenges of parodying video are closer to song or speech than graphic design. Akin to a song or speech, with parody of video there is a “special need for accuracy” that provides some license for a “closer” parody.   Just as a would-be parodist loses the likeness of a song if she substantially varies the music or meter of the original, a would-be parodist loses the likeness of a film if he substantially varies the script or setting of the original. It follows that video, like song and speech, should be afforded greater leeway in determining whether a defendant borrowed in excess. Moreover, the Court also considers the difficulty of “conjuring up” the message of a little known video without resorting to use of that video. While five seconds might be sufficient to capture the iconic image of Marilyn Monroe in a billowing skirt standing over a vent, the challenge presented in parodying the Northland Video is at the other end of the spectrum.

And finally, the overriding purpose was parody of the original.  Commenting on the broader abortion debate or soliciting donations were “incidental” to the primary parodic purpose.  Plus, the lack of market substitution weighs in defendants’ favor.  (As has often been observed, factor three tends to get the other factors, especially one and four, shoved into it, as here.)

Market harm: Northland’s alleged harm wasn’t cognizable because it stemmed from criticism, not market usurpation.  That potential licensees are no longer interested is a real injury, just not one covered by copyright law.  There’s no market substitution.

The balancing of factors, of course, favored fair use.

Final note: interesting that there’s no DMCA claim here (a victory for the remix exemption?  except that then “noncommercial” in the exemption would have to mean something other than what the court here says it means).  As far as I can tell, defendants must have used a program to download the video from YouTube, whose terms of service purport to disallow this.