Friday, June 08, 2012

The question is, which is to be master?

Brownmark Films, LLC v. Comedy Partners, No. 11-2620 (7th Cir. June 7, 2012)

Yay, fair use withut discovery!  Although I’m not quite as excited as other people because I want to think a bit more about this language: “When a defendant raises a fair use defense claiming his or her work is a parody, a court can often decide the merits of the claim without discovery or a trial” (emphasis added).  While the context of concern abut “copyright trolls” who impose unfair costs on litigating defendants might serve to limit this language, I foresee plaintiffs wanting to use it too: what if the parody isn’t the kind of thing an audience of wealthy, largely white, largely middle-aged judges (and their clerks, on occasion) understands as parody, but can be recognized as such by its target audience?  Are we really that confident that judges will routinely “get” transformative uses, or will they be tempted to grant summary judgment against plaintiffs too?  The key here is to recognize that Campbell makes clear that transformative uses don't have to be successful, or have a single meaning (it's hard to say that any creative work has only one meaning, which is why people can disagree on what counts as parody and what as sequel even without the impetus of a copyright lawsuit); as long as an interpretive community can reasonably perceive the parody, that ought to count as parody, even if there are also people who don't get it.

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