The case of Brownmark Films v. Comedy Partners, which was decided last month in the Eastern District of Wisconsin, raises two really interesting issues for this blog.  I plan to address one of them — fair use — now and save the other for a subsequent post.

I do not want to rehearse the facts in detail here.  Suffice it to say that the case involves a claim that an episode of South Park infringed the copyright in plaintiff’s music video, which the judge calls “cryptic” and I call simply crude.  The much more difficult half of the case involves the issue of a transfer of exclusive rights, and I will discuss that later.  But for academics, I think, the most important aspect of the decision is how it deals with fair use.

The fair use call is really pretty easy in this case; inclusion in South Park is virtually prima facie evidence that a work is being parodied.  Indeed, the judge has little difficulty deciding that the use of less than one-third of the original music in a video featuring a different character and intended to mock the viral video phenomenon is fair use.

What is significant here is that the judge made the fair use decision before there had been a trial.  He examined the pleadings and found that everything he needed to make this easy call was already before him.  Then he ruled favorably on a motion to dismiss the case on the basis of those pleadings (technically a “motion to dismiss for failure to state a claim”) and dismissed the case with prejudice (which means plaintiff cannot re-file it).

Librarians and other academics are often afraid to rely on fair use, even when there arguments would be strong, because of the expense of defending a lawsuit even when you win.  Content companies often encourage that fear, reminding academics that fair use is a defense that can only be decided with certainty at a trial.  While this case is a little bit unusual, it invites us, I think, to look at this “chilling effect” and perhaps lend it less credence.

In his ruling to dismiss, Judge Stadtmueller explicitly notes that “evaluating an affirmative defense, and indeed the ‘fair use’ defense, at the pleadings stage is ‘irregular’.”  But he thinks it is justified precisely because when the case for fair use is “obvious,” “the court can conclude that this dispute does not warrant ‘putting the defendant[s] through the expense of discovery’.”  In other words, in straightforward cases, a fair use claim can be evaluated before there is a trial, explicitly to prevent the cost of litigation from itself becoming an obstacle to proper exercise of fair use.

The phrase “affirmative defense” is itself a little bit misleading in this context, I think.  By definition, an affirmative defense is one in which you admit the truth of the facts alleged but then prove new facts that nevertheless defeat the charge of claim.  Self-defense is a classic example of an affirmative defense — the defendant admits the killing but proves facts that justify it.

Fair use is slightly different than the typical affirmative defense.  It has to be raised after a claim has been made, of course, but it does not actually involve admitting the truth of the allegation.  Fair use is not a justification for an infringement; by the language of section 107 fair use is “not an infringement of copyright.”  So rather than showing a reason for infringing on someone else’s right, the fair use defendant is proving a limitation of the plaintiff’s right that means that no infringement took place.

Because it functions as a limitation on the right in question, fair use is actually a perfect example of a place where a copyright infringement claim should be dismissed because of a “failure to state a claim.”  That describes perfectly what is going on — because fair use has been established, the plaintiff did not have a right that was infringed in the first place.  Because fair use is “a mixed question of fact and law,” there will always be specific circumstances that must be adduced, but if those facts are plain on the face of the complaint, as they were in Brownmark Films, a judgement at that stage is entirely appropriate.  And that possibility reduces the sense that even a strong fair use claim is not worth litigating.

I like to think of fair use as a boundary on the rights in copyright, just like physical property has a boundary.  One way I could defend a claim against me for physical trespass would be to prove to the court that I never actually stepped on the plaintiff’s property.  I would raise that evidence in a defense, but what it would show was that no violation of the property right ever took place — that the plaintiff had not stated any claim.  That is exactly how fair use functioned in this case, and that possibility offers an important perspective on fair use.

Next post we will discuss the issue of transferring an exclusive right by a joint copyright holder and what impact that has on publication agreements

 

5 Responses to An easy fair use ruling, but with a message

  1. mary zachar says:

    Nice to see your analysis here Kevin. Fair use is one of the more enigmatic pieces in copyright analysis, with no certainty in its applied outcome, and as you point out, even without certainty as to the timing of its invocation in a litigation context. I see it as a limitation on the scope of Congress’s monopolistic grant of copyright – one so necessary that without fair use, copyright could not exist at all. So your boundary metaphor is the same limitation on scope. But what I also see is that unlike no trespass at all, fair use is an admission that there was a stepping onto another’s property – the copyright interest – but one that is permissible because the copyright has many layers which must be seen before we can find the correct balance which defines the scope of copyright in any particular work and it is correct for a court in reviewing a plaintiff’s complaint to see the copyright interest in such light, through the lens of a balanced view which is what it is, not an unlimited grant of a right without such balance inhering in the right itself. So that makes it a case by case analysis. If applied to a thin copyright, like that which inheres in a parody venue such as South Park, content is protected differently than if it were excerpted /reproduced from an unpublished script and then transformed. Really would be nice if we had some certainty with respect to fair use – this recent decision seems as you say to allow use of a litigation tool – a 12b6 motion – to address FU on the front end before attorneys’ fees go into the triple digits – but even so, few can afford the fees which even take one to that stage of a federal litigation. But I still see the chilling effect at even the prospect of litigation and believe that a cease and desist from a registered owner is a real lever in chilling creative expression.

  2. Pat Entlaw says:

    Excellent points. Strong arguments for a ‘loser pays’ system and/or substantial penalties for frivolous lawsuits.

  3. Actually, fees are much more freely available for successful defendants in copyright cases than under most federal statutes. That is especially true in the Seventh Circuit, where this case was decided. That court has recognized that defendants need to have an incentive to defend the public domain, comparable to the incentive for enforcement that is provided by the possibility of compensatory and statutory damages.

  4. JB says:

    Your “not stepping on” analogy is a bit off. A more accurate comparison is that stepping on someones property to make a delivery or ring their doorbell is not tresspass in the general case. Similarly if their property includes parts of the road or other public area, or they placed their picket fence a few feet inside the property line, then there is mostly public access to those outside areas of the property.

    I Am Not A Lawyer And I Don’t Play One on TV. This is not legal advice.

  5. Renee Marie Jones says:

    It is unfortunate that copyright holders use the fact that copyright trials are expensive to effectively grant themselves rights that they do not, in fact, have. This is an abuse of process, but it is a common abuse because rights holders are never adequately punished for it. A mechanism must be found to ensure that falsely claiming copyright infringement in cases of fair use is more expensive and more damaging to the copyright holder than to the party exercising their fair use rights. Until this is done, copyright law is fundamentally abusive, unfair, immoral, and unacceptable in a just society.

    The current system is so unfair and abuse prone that no ethical judge or lawyer could possibly ever support it. If you are a judge and you fail to dismiss a copyright action, you are evil. If you are a lawyer who brings a copyright action, you are evil. Copyright, as currently implemented, serves only to destroy society and must be abolished.