Interesting Fair Use Case

Northland Family Planning Clinic v. Center for Bio-Ethical Reform (C.D. Cal. June 15, 2012) rejected a copyright claim, finding (I think correctly) that defendant’s use was a fair use as a matter of law.

Northland Family Planning Clinic created a video (apparently this one) titled “Every Day, Good Women Choose Abortion,” which, true to its title, aimed to tell women that getting an abortion is a decision that good women can and do make. Defendants created several videos that included several verbatim segments of the Good Women Choose Abortion video, interspersed with graphic imagery of abortions and, in some versions, some commentary, e.g., a quote from George Orwell. (The latest version, called the CBR II video by the opinion, is apparently here.) Plaintiffs sued, claiming copyright infringement. Defendants argued the use was a fair use, and the court agreed. An excerpt, though please read the whole opinion (which is pretty readable) for the details:

In this case, the balance of the [17 U.S.C. § 107] factors weighs in favor of finding fair use. While the accused works have some commercial use, their transformative character [as criticism of the original] substantially eclipses that consideration. Thus, the first factor tips in favor of Defendants. Because the Northland Video is, at least in part, a creative work, the second factor militates in favor of Northland. The third factor weighs in favor of Defendants because they did not use an excessive amount of the Northland Video to create their parody, in light of the Fisher factors [which state that parodies and similar critical works are generally entitled to use substantial portion of the original in order to comment on it -EV].

Finally, the fourth factor also weighs in favor of Defendants because the accused Videos did not create a cognizable market injury to the Northland Video. Though Northland many have suffered pecuniary or reputational losses as a result of the accused Videos, those injuries are not recognized under the Copyright Act. On balance, Defendants’ use of the Northland Video was fair. [Remainder of text moved: -EV] Under the “market effect” factor, the Court focuses on the extent to which the Defendants’ work usurps the potential market for the original or its derivatives. It is not relevant that a use may damage the original’s value through criticism. Courts must distinguish between “biting criticism that merely suppresses demand and copyright infringement, which usurps it.” … In this case, the harm Northland claims to suffer is not cognizable because it stems from an “aim at garroting the original,” not a usurpation of the original’s market. Northland asserts that the accused Videos have diminished the value of the Northland Video and have terminated all conversations with potential licensees. While this is no phantom injury, it is not recognized by the Copyright Act. Campbell v. Acuff-Rose, 510 U.S. at 591-92 (“We do not, of course, suggest that a parody may not harm the market at all, but when a lethal parody, like a scathing theater review, kills the demand for the original, it does not produce a harm cognizable under the Copyright Act.”) Furthermore, it is unfathomable to think that the accused Videos are a market substitute for the Northland Video. The purposes and messages of the two are diametrically opposite.

The one slight weakness of the opinion, I think, is in its treatment of the defendant’s video as “parody,” coupled with the conclusion that “for purposes of copyright law, humor is not a necessary element of parody” (and neither is even an attempt at humor). This is understandable, given that most of the recent cases on the commentary/criticism branch of fair use have involved parodies, including Campbell v. Acuff-Rose Music Inc. (1994), the leading Supreme Court case on the subject. But it still adds an unnecessary convolution, it seems to me.

Copyright law has long recognized that commentary on a work and criticism of the work must generally be required to include substantial portions of the work being commented on or criticized, so that the reader can understand the point the commenter or critic is trying to make, especially given that commentary and criticism (unlike, say, a direct copy or a translation) are unlikely to compete with the original work or even with adaptations of the original work that are licensed by the copyright owner. When Congress codified the fair use defense in 1976, it specifically gave “criticism” and “comment” as examples of uses that were especially likely to be fair. Campbell and other cases then concluded that parody was a fair use, because it was a form of criticism or commentary. “Like less ostensibly humorous forms of criticism, [parody] can provide social benefit, by shedding light on an earlier work, and, in the process, creating a new one. We thus line up with the courts that have held that parody, like other comment or criticism, may claim fair use under § 107.”

So the most straightforward way of thinking about this, I think, is that (1) this is a “criticism” / “comment” case, (2) the parody cases are useful precedents because they too are “criticism” / “comment” cases, and (3) the lack of humor in this case doesn’t keep the parodies from being good analogies. Calling this is a parody case but then saying that parody need to be an attempt at humor needlessly departs from the normal usage of “parody,” and makes the court’s argument seem less persuasive than it could be. But in any event, whether we call this a criticism/comment case or a nonhumorous parody case, the court’s fair use analysis is quite correct.