Fair Use Protects Copyright Holder of Unauthorized Parody

The Second Circuit began its opinion with its intriguing ruling:

The primary question presented is whether an unauthorized work that makes ‘fair use’ of its source material may itself be protected by copyright.

We hold, for substantially the reasons stated by the United States District Court for the Southern District of New York (Thomas P. Griesa, Judge), that, if the creator of an unauthorized work stays within the bounds of fair use and adds sufficient originality, she may claim protection under the Copyright Act, 17 U.S.C. § 103, for her original contributions.

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South Park WWITB Video Fair Use, Rules Seventh Circuit

Was South Park’s video version of What What (In The Butt) a fair use of Brownmark’s original viral video version of What What (In The Butt)?  The district court thought so.  It made its decision based on South Park Digital Studios’ (SPDS) Fed.R.Civ.P. 12(b)(6) motion, comparing the two videos without considering other evidence.  Brownmark appealed to the Seventh Circuit Court of Appeals, arguing that the district court could not base its decision in a Rule 12(b)(6) motion on an affirmative defense. 

In a Rule 12(b)(6) motion, the defendant argues that the plaintiff failed to state a claim upon which relief can be granted.  Fair use (17 U.S.C. §107) is an affirmative defense, meaning that establishing the defense nullifies a claim of copyright infringement.  Brownmark argued that it is improper procedure for a district court to consider the defendant’s affirmative defense in a motion addressing the sufficiency of the plaintiff’s complaint.  The Seventh Circuit affirmed the district court’s ruling on both the procedural issue and the fair use issue, stating that the South Park video “is clearly a parody of the original WWITB video, providing commentary on the ridiculousness of the original video and the viral nature of certain YouTube videos.”  (Opinion pdf page 10).

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Coca-Cola Facebook Approach Does Not Fit in FranklinCovey Seven Habits Situation

I enjoyed reading blogger Ron Coleman’s  post, The seven habits of highly annoying lawyers. Ron created his own list of seven habits.  The “seven habits” phrase originated from The 7 Habits of Highly Effective People®, written by Stephen R. Covey and published by FranklinCovey.  It is a highly regarded book discussing “proven principles of fairness, integrity, honesty, and human dignity.”

FranklinCovey recently sent a cease and desist letter to Schlock Mercenary for publishing an ongoing, online webcomic called “The Seven Habits of Highly Effective Pirates.”  Ron’s post commented on the post of another legal blogger who thought that FranklinCovey’s cease and desist letter was unwarranted and that FranklinCovey missed the opportunity to put into play “think win-win,” one of The 7 Habits of Highly Effective People.  Under a comparison and competition based approach to life, one side wins and the other side loses and there is only so much pie to go around.

“Win-win sees life as a cooperative arena, not a competitive one….Win-win means agreements or solutions are mutually beneficial and satisfying.  We both get to eat the pie, and it tastes pretty darn good.” 

Unfortunately, trademark law does not operate on a “win-win” approach.  Trademark law arose out of unfair competition law.  Trademark law requires the trademark owner to use and protect the trademark or lose it.  This is particularly true in the 7 Habits situation.  7 Habits is probably a famous trademark, which entitles it to greater protection than ordinary trademarks, but also requires greater vigilance on the part of the trademark owner.

The Coca-Cola Facebook situation is an example of how a trademark owner created a “win-win” out of a trademark infringement and potential media disaster.  Michelle Golden  describes this situation on pages 68-69 of her book, Social Media Strategies for Professionals and Their Firms. Coca-Cola fans created a Coca-Cola Facebook page, included the Coca-Cola logo and posted content the corporation could not control.  Coke did not attempt to shut the page down, but instead, invited the two people who created the Facebook page to corporate headquarters.  There, Coke entertained them and began a collaboration with the fans to work on the page together.  Both the two fans and Coke executives are administrators of the page.  This is a “win-win.”  The fans get to keep their Facebook page and Coke gets to have a voice in the content.

Why won’t the same thing work for FranklinCovey?  Because FranklinCovey does not like the message about its mark.  Schock Mercenary’s message about the FranklinCovey trademark pokes fun at the mark and is undesirable for the corporation, whereas the Facebook message about Coca-Cola was a positive one that the company wished to encourage.  For FranklinCovey, there is no possibility of a “mutually beneficial and satisfying” solution when another is using its mark in such a manner.

Getting back to the famous trademark discussion in the fourth paragraph, as the owner of a famous trademark, FranklinCovey has the responsibility of policing its mark by refusing to let others “tarnish” it.  Tarnishment is “association arising from the similarity between a mark or trade name and a famous mark that harms the reputation of the famous mark.”  Policing the mark means taking action to stop parodies or other undesirable uses of the mark.

“[A] ‘parody‘ is defined as a simple form of entertainment conveyed by juxtaposing the irreverent representation of the trademark with the idealized image created by the mark’s owner.”

A parody is not categorically a fair use and can still create a likelihood of confusion.