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Wednesday, October 11, 2006

Copyright conundrum redux: the Nietzsche Family Circus

If you’ve been poking around the blogosphere lately, you may well have run across references to the Nietzsche Family Circus. This neat module randomly matches images from Bil Keane’s relentlessly happy family cartoon with some of Nietzsche’s darker quotations—a droll and often hilarious juxtaposition. It’s become the link du jour, with even some famous law bloggers giving it a shout-out.

The NFC lives at Losanjealous, an award-winning site featuring commentary about Angeleno pop culture. It’s not, however, the first site to host sardonic mash-ups of the Family Circus. In the mid-nineties, the Dysfunctional Family Circus regularly posted images from the wholesome cartoon and solicited alternative captions. The most hilarious—and, often, ribald—ones were selected for publication on the site.

The DFC ran for several years until King Features (which syndicates the original cartoon) objected and its creators took down the cite. But did they have to? I wondered about this issue back when DFC went under, and the NFC’s creator recently asked my advice about it just this past weekend. My thoughts about the NFC’s surviving an infringement suit follow the break.

First off, I think it’s pretty clear that the NFC (or the DFC) would amount to infringement. They include wholesale copies of the entire artwork portion of copyrighted cartoons. That the captions aren’t included doesn’t save them from infringing the owner’s copyright (copying the entire image of a cartoon, even without accompanying words, is hardly de minimis), but the addition of new captions might make for a fair use defense.

So how might such a defense run? The first case that came to my mind when I thought about the NFC was Campbell v. Acuff-Rose, where the Supreme Court upheld a fair use defense in a case involving 2 Live Crew’s obscene rap takeoff of Roy Orbison’s classic song Pretty Woman. Fair use familiarly entails consideration of four factors, but in Campbell the court focused on a single one: the purpose and character of the use, and in particular whether the allegedly infringing work was sufficiently transformative to amount to fair use.

The hard question raised by Campbell—and the one that seems to have the most relevance to the NFC—is whether the allegedly infringing work is a parody aimed at the original, or just a satire aimed more generally at social themes. Parodic takings may be defensible because, as the Court explained, “the heart of any parodist's claim to quote from existing material, is the use of some elements of a prior author's composition to create a new one that, at least in part, comments on that author's works.” By contrast, satires that have a social message but lack any necessary nexus to the original don’t have a claim that they needed to take from the original to get their message across, so would fail. The Second Circuit invoked this rationale in rejecting Jeff Koons’ fair use defense in the “String of Puppies” case.

Thus the question: the NFC, defensible parody or infringing satire? I’m biased, but I think the answer has to be the former. A main point of the NFC, and the DFC before it, was to poke fun at the squeaky-clean family depicted in Bil Keane’s cartoons. Nothing could be farther from the actual content of the Family Circus than the guttersniping obscenity of the DFC or the dark philosophical musings of the NFC. Thus the revised versions of the cartoon transformed the original by sending a radically different message. It’s impossible to avoid the conclusion that both sites succeeded in making their object look absurd, achieving the “joinder of reference and ridicule” that Souter invoked in Campbell. That’s parody.

On the other hand, one might argue that the NFC and its precursor, the DFC, were making a broader social point as well. They each seek to show that the wide-eyed wholesomeness of the Family Circus is a whitewash of the real American family, which often falls well short of some Norman Rockwellian ideal. By this standard, one could argue that there’s no necessary nexus between the goals of either site and their critical message, and thus that it’s merely an unprivileged social satire.

This points out the difficulty of the satire/parody distinction—one that I’ve never found entirely convincing—but it seems to me that in order to preserve any space for parody in the fair use defense, the latter argument has to be wrong. Every parody could be restyled to express some greater social message. Even 2 Live Crew’s parody could have been said to have been taking potshots at the notion of romantic love generally, an aim that did not necessarily require them to use Orbison’s song.

A final twist is that in a footnote, the Campbell Court may have created room for treating even general social satire as fair use, provided that the allegedly infringing work does not serve as a market substitute for the original. And in either case, I have a very hard time imagining that anyone who likes the Family Circus (that is, if anyone does like it) would give it up for dark humor of its Nietzschean or Dysfunctional takeoffs. Regardless, the DFC knuckled under to a couple strongly worded cease-and-desist letters. It’s not clear what will come of the NFC, but from a fair use perspective, I think they’re well in the clear.

Posted by Dave_Fagundes on October 11, 2006 at 01:20 PM in Culture, Intellectual Property | Permalink

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Comments

Thanks for the comments. It might be possible to make sense of the parody/satire distinction by looking to the notion of necessity. The law has historically limited the right to exclude where some third party needs to make use of your land (e.g., Ploof v. Putnam). In the case of parody, it's necessary to appropriate the owner's intellectual property to some extent because without that the parody would be impossible. However, in the case of satire such an appropriation isn't necessary because the owner's work is not the only necessary vehicle for the expressing the satirist's opinion. The idea of restyling most satires as comments on method would be another way of saying they possess the necessary nexus with the original to warrant a fair-use appropriation of that work.

Posted by: Dave | Oct 12, 2006 8:49:50 PM

I am no fan of the misguided legal version of the parody/satire distinction. (Just for fun, some copyright scholars should read some of the canonical works in literary theory on satire; they'll discover that the legal definition--at least historically--is a partial inversion.) My objection is perhaps best illuminated by the 9th Circuit's misguided Dr Juice opinion.

The lower courts have consistently refused to accept that one method of parody with long and distinguished(!?) historical roots is a radical change of context/content as a comment on method. Both Dr Juice and (to a lesser extent!) Campbell present this aspect: In each case, some of the comment arises from the radical change. Justice Souter remarked that 2Live Crew's work qualified as a parody commenting on the "banality" of Roy Orbison's ballad (and, although I think he was too easy on the Orbison work, that's beside the point!). I cannot find a principled reason to reject that same interpretation of Dr Juice, nor of the Nietzsche Family Circus. Instead, any application of this rationale ends up being based upon the personal interpretation of the jurists... which is precisely what Justice Souter warned against when he remarked that parody isn't always humorous.

Posted by: C.E. Petit | Oct 12, 2006 9:39:40 AM

Here's my take:

http://madisonian.net/archives/2006/10/05/is-the-nietzsche-family-circus-a-parody/

I tend to agree with you. Though a fan of Lee v. ART may call the Nietzsche quote a mere tile frame!

Posted by: Frank | Oct 12, 2006 12:00:32 AM

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