The Amazing Metrano, Family Guy, and Fair Use

The acerbic animated show Family Guy often ridicules popular figures harshly and very specifically, so it’s unsurprising that the show has drawn the ire of the targets of its ridicule, sometimes in the form of copyright infringement suits aimed at its studio and creators. Probably the best known of these was Carol Burnett’s suit claiming that Family Guy infringed her “Charwoman” character by depicting Burnett cleaning up in a porno shop. The suit was dismissed when a federal district court held that the depiction of Burnett’s character was defensible as fair use. Burnett v. Fox, 491 F. Supp. 2d 962 (C.D. Cal. 2007).

Along the same lines is the lawsuit pending by Arthur Metrano, much discussed in the IP blogosphere, alleging that the creators of Stewie Griffin: The Untold Story (a movie based on Family Guy) infringed his “Amazing Metrano” stage act by showing Jesus performing the act in substantially the same way that Metrano does. (It’s really hard to describe the act and the ensuing scene, but here’s a site with video clips of the two.)

The defendants in Metrano recently moved for a 12(b)(6) dismissal based on the fair use defense, and in light of Burnett, likely thought they’d prevail. Last week, though, a federal district court judge rejected their motion, holding that the first three fair use factors (purpose and character of the use; nature of the infringed work; and amount and substantiality of the taking) weighed in favor of Metrano, while the fourth (economic impact) had to await more fact-finding. I say a bit more about the decision, its merits, and the frustrating indeterminacy of the fair use defense, below the fold.

The most salient part of the decision strikes me as the court’s finding that the first factor—the purpose and character of the use—weighs in favor of Metrano. This factor is usually distilled to the question whether the use is “transformative”, citing the Supreme Court’s language in the enormously influential 1994 Campbell v. Acuff-Rose decision. Campbell also introduced the much-debated parody/satire distinction as a way to help determine whether a work is sufficiently transformative for the first fair use factor to weigh in favor of the defendant (an issue I’ve examined on this site in previous years). Parodies make fun of the plaintiff’s work itself and tend to be transformative; satires merely use the defendant’s work as a vehicle to mock some social issues, and tend not to be transformative.

In Burnett, the Central District of California applied this standard to find the Family Guy’s mockery of Carol Burnett’s “Charwoman” character a transformative parody, because Carol Burnett was clearly the object of the writers’ mockery (even though that mockery may have been mean and in poor taste). But the same court (through a different judge) found Burnett distinguishable from Metrano on this point, finding that the Jesus scene “does not criticize or comment upon Plaintiff’s routine or lampoon Plaintiff by depicting him in a new or different way, as did the episode of Family Guy in Burnett”, but rather "pokes fun at and questions Jesus’s purported ability to work miracles”.

These factual assertions possess some truth; the Family Guy clip in Burnett actually depicted Carol Burnett, while the clip in Metrano showed someone else (Jesus) performing Metrano’s act. This probably made the reference to Burnett more obvious, and one can certainly imagine that many viewers did not understand or know about Art Metrano’s act when they saw the Jesus scene in Stewie. Nevertheless, this strikes me as a distinction without a difference. The district court concludes that the only mockery at issue in the scene was the creators’ poking fun at Jesus’ ability to work miracles. But the scene could not have effectively communicated the message that Jesus was "overrated" unless what He was doing was lame and unimpressive (hence the vacant expressions of the audience members who watch Jesus perform the act), and that means that the scene also had to communicate that Metrano’s act was subpar.

The district court seems to assume (as most courts applying the Campbell parody/satire distinction have) that there must be a unique object of any given parody, but as these facts illustrate, it's entirely possible for a parody to have multiple objects. The Jesus scene, read in context with the bit of dialogue just preceding it, mocks both Jesus (by suggesting that He was not that miraculous) and Metrano (by suggesting that his “magic” act was lame and unimpressive). On this reading, the Jesus scene is clearly a parody of (inter alia) Metrano and his act.

It bears noting also that the parody/satire distinction does not subsume the question of transformativeness entirely, though most courts apply Campbell as though it does. A judge could find that the defendant’s use was not parody, but that it was still transformative. Metrano seems like an instance where this might hold true. Even if we assume that the judge is correct that the Jesus scene in Stewie was not a parody, it still seems transformative by any measure. It took Metrano’s act and changed the context, meaning, and message of it from a campy 60s comedy act to a surreal depiction of a popular deity. I suspect the district court would not have found this degree of transformativeness sufficient to cause the first factor to weigh in favor of the defendants, but the issue still should have been addressed.

Of course, this is just a (my) reading of the Jesus scene in Stewie, and while I think it’s right, it’s clearly contestable. This raises a related critique of the parody/satire distinction (and of the first fair use factor more generally): that it requires judges to act as literary critics (I forget who said this). Is it ever possible to identify the object of a defendant’s parody with any objective certainty? Is this really the kind of question we think judges trained in the law are capable of answering? On the other hand, we ask judges to make tough, and specialized, judgment calls in applying legal standards to novel facts all the time, and we don’t criticize securities law or criminal law for forcing judges to act as economists or psychologists. So however strange it may seem to have a case turn on a judge’s literary instincts, perhaps it’s just another instance in which we have to trust that the federal bench is full of wise enough generalists to make these (and many other similarly specialized) decisions well.

One final, procedural point: at first, I thought the posture of this case (motion to dismiss) would affect the fair use analysis. The district court merely held that there was not enough evidence to dismiss the case on a fair use theory now, and the decision certainly holds open the possibility that there might be such evidence after the record is developed a bit more (particularly with respect to the fourth fair use factor). But as the court correctly pointed out, fair use is a mixed question of fact and law, and the question whether a defendant's work amounts to parody as Campbell defined it is one of application of a legal standard to facts. And the facts relating to the content of Metrano's act and the Jesus scene in Stewie are undisputed, and will likely remain so throughout the case. So while the fair use issue could theoretically go the other way on summary judgment if the defendant can come up with a strong showing regarding market share, the parody/first factor issue seems to have been resolved with finality.