The Volokh Conspiracy

A reader writes, apropos my recent post on parody and fair use,

Dear Mr. Copyright Expert,

So Ghettopoly loses while "The Wind Done Gone" prevails.

Is there a principle at work here other than measuring your revulsion and working backwards to get the desired result?

I can see why people are sometimes cynical about judges' decisionmaking, but it's good to check the facts to see whether they bear out the cynicism. And in fact, the leading modern parody cases don't seem to support the cynical view. In Campbell v. Acuff-Rose (1994), the leading Supreme Court case on the subject, the Justices basically accepted a fair use defense by the rap group 2 Live Crew -- not a very appealling defendant, that created a pretty vulgar parody of Roy Orbison's "Pretty Woman." (Look here for the lyrics, especially Verse 4 and the bridge preceding it.) On the other hand, in the most prominent recent case rejecting the fair use defense, Dr. Seuss Enterprises v. Penguin Books (9th Cir. 1997), involved a comparatively inoffensive Seuss-styled account of the O.J. trial, called "The Cat NOT in the Hat!" Hard to see much "revulsion" at the copyrighted work in the court's opinion there.

What is the principle, then? Here's the key argument from Campbell, which the Dr. Seuss court cited (and the bottom line of which I briefly summarized in my initial post, though without the supporting argument):

For the purposes of copyright law, . . . 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. . . . If, on the contrary, the commentary has no critical bearing on the substance or style of the original composition, which the alleged infringer merely uses to get attention or to avoid the drudgery in working up something fresh, the claim to fairness in borrowing from another's work diminishes accordingly (if it does not vanish) . . . .

Parody [which comments on the original] needs to mimic an original to make its point, and so has some claim to use the creation of its victim's (or collective victims') imagination, whereas satire [which doesn't comment on the original] can stand on its own two feet and so requires justification for the very act of borrowing. . . .

Now as it happens this "parody/satire" distinction can certainly be criticized (though it can also be defended). First, many works, especially humorous ones, are ambiguous; they don't articulate the point of their commentary in so many words, but leave it to the audience to figure things out, and different members of the audience can perceive things differently. Some people might well see any poem that uses Seussian style to discuss accused murderers as poking fun at Seussian conventions of childish innocence. How is a judge or jury to figure that out, especially if the work was aimed at people whose sensibilities and senses of humor are quite different from the judge's or the jurors' sensibilities?

Second, because of this, authors might be deterred from writing material that does implicitly comment on the original, for fear that this will lead to an expensive lawsuit. Third, it does indeed open the door to judges and juries acting based on their own like or dislike for the defendant's work -- vague rules do indeed risk such viewpoint discrimination. And indeed in some pre-Campbell cases, it did seem that some courts improperly counted a work's vulgarity or sexual theme against it.

But to my knowledge there's no reason to think that modern courts are in fact applying the test based on "revulsion" towards the defendant's work. There's much to criticize in the parody/satire distinction, but no reason to just assume the most cynical explanation of how it's been applied.

Several readers pointed out to me that Allen Ginsberg had much to say about Moloch — which, to remind people, is what the MS Word spell checker changes Sasha's, Benjamin's, and my last name to. This makes me realize that Allen Ginsberg must have actually been writing about us, but his spell-checker screwed things up. Wow! In any case, here are his views of our clan, from Howl:

Moloch! Solitude! Filth! Ugliness! Ashcans and unob-
   tainable dollars! Children screaming under the
   stairways! Boys sobbing in armies! Old men
   weeping in the parks!
Moloch! Moloch! Nightmare of Moloch! Moloch the
   loveless! Mental Moloch! Moloch the heavy
   judger of men!
Moloch the incomprehensible prison! Moloch the
   crossbone soulless jailhouse and Congress of
   sorrows! Moloch whose buildings are judgment!
   Moloch the vast stone of war! Moloch the stun-
   ned governments!
Moloch whose mind is pure machinery! Moloch whose
   blood is running money! Moloch whose fingers
   are ten armies! Moloch whose breast is a canni-
   bal dynamo! Moloch whose ear is a smoking
   tomb!
Moloch whose eyes are a thousand blind windows!
   Moloch whose skyscrapers stand in the long
   streets like endless Jehovahs! Moloch whose fac-
   tories dream and croak in the fog! Moloch whose
   smokestacks and antennae crown the cities!
Moloch whose love is endless oil and stone! Moloch
   whose soul is electricity and banks! Moloch
   whose poverty is the specter of genius! Moloch
   whose fate is a cloud of sexless hydrogen!
   Moloch whose name is the Mind!
Moloch in whom I sit lonely! Moloch in whom I dream
   Angels! Crazy in Moloch! Cocksucker in
   Moloch! Lacklove and manless in Moloch!
Moloch who entered my soul early! Moloch in whom
   I am a consciousness without a body! Moloch
   who frightened me out of my natural ecstasy!
   Moloch whom I abandon! Wake up in Moloch!
   Light streaming out of the sky!
Moloch! Moloch! Robot apartments! invisible suburbs!
   skeleton treasuries! blind capitals! demonic
   industries! spectral nations! invincible mad
   houses! granite cocks! monstrous bombs!
They broke their backs lifting Moloch to Heaven! Pave-
   ments, trees, radios, tons! lifting the city to
   Heaven which exists and is everywhere about
   us!

I should be on MSNBC's Abrams Report today, debating about the Second Amendment. I'm not sure whether it will be live or taped, but I'll be doing the taping at 3:15 pm Pacific.

In an earlier post, I complained that Microsoft Word's spell-checker suggested that "Volokh" be changed to "Moloch." I wasn't wild about the connection to a spiny-scaled lizard ("Moloch horridus") and especially not to a god to whom the Phoenicians and Canaanites supposedly sacrificed children.

But Seth Goldman points out the deep truth underlying Word's suggestion! A second definition of "Moloch" is:

Something possessing the power to exact severe sacrifice.

Around exam time, my students may well find this to be highly apt.

Stephen Bainbridge. Stephen asks me whether he can get away with posting fan fiction that crosses Elric of Melniboné (created by Michael Moorcock) with Anita Blake (of Laurell Hamilton's Anita Blake, Vampire Hunter series).

I'd counsel against it. The fan fiction would use enough of the Moorcock and Hamilton material -- enough character attributes and allusions -- to constitute "copying" for copyright purposes (even if the only things that they literally copy are the names).

To avoid liability, Stephen would have to argue fair use. But while parody that pokes fun at the original, or otherwise comments on it, is often a fair use (see the 2 Live Crew case, Campbell v. Acuff-Rose), parody that simply uses the original to poke fun at something else is generally not a fair use. Thus, for instance, the Ninth Circuit held that an item about the O.J. trial that borrowed from Dr. Seuss infringed the Seuss copyright, because it commented on O.J. but not on Dr. Seuss. And while one can often argue that any use of someone else's work (especially a humorous use of a serious work) in some way comments on the original, the Ninth Circuit case shows that courts are often skeptical of such arguments. It sounds like Stephen may be trying to mock Hamilton's work, but unless the submitted item comments (in a way that the court will recognize) on both Hamilton and Moorcock, then he's in trouble.

Finally, note that this analysis relies on the fact that Stephen's blog has advertising, and thus would be treated as commercial, which is a big strike against a fair use. Parody and commentary that critique the original may be fair use even if they're commercial; and other uses may be fair use if they're noncommercial. But if a court rejects the parody/commentary argument and the use is commercial, then the fair use claim becomes quite weak.

All this is just a general answer. It's hard to tell for sure if one hasn't seen the actual work, and with fair use it's hard to tell for sure even after one has seen the actual work. Still, I'd warn my colleague off his plan -- at least unless he insists that the submitted fiction pretty clearly mock both Moorcock and Hamilton.

Yes, you might think that's an oxymoron, but it really is pretty amusing. See here for an excerpt and a pointer to the PDF file.

is now available on amazon.com, though they say it takes 1 to 2 weeks for delivery.

If you want personalized copies, follow the instructions here; I have only copy left right now (24 have been bought since I got the box Friday), but the publisher says that 30 more are on their way.

And remember, some people appreciate New Year's gifts as well as Christmas gifts. (I'm not making this up, that's indeed the way we always did it in my family.) And some people appreciate gifts on any day.

Seriously, one thing I mention in the chapter on getting on law review is that people should start preparing several weeks before the competition. So if the competition is in March (as it is at UCLA, for instance), it would be good for a student to have the book well before then.

A really cool site for First Amendment junkies -- thanks to my former student Matthew Liebman for the pointer. Here's a list of what they have:

. . .

The "Conscription" cartoon in Masses Publishing . . .

The two-sided circular in Schenck . . .

The speech in Debs . . .

The circulars in Abrams . . .

The Left Wing Manifesto in Gitlow . . .

An article used as evidence in Near . . .

Examples of the documents in Herndon [v. Lowry] . . .

Transcript of the phonograph record in Cantwell . . .

The handbills in Valentine . . .

The speech in Terminiello . . .

Accounts of the speech in Feiner . . .

The leaflet in Beauharnais . . .

The advertisement in New York Times Co. v. Sullivan . . .

Photographs of the protest in O'Brien . . .

The letter to the newspaper in Pickering . . .

Examples of gender-segregated want-ads in Pittsburgh Press . . .

Transcript of the monologue in FCC v. Pacifica . . .

Photographs of the display in Lynch v. Donnelly . . .

Page proofs of the student articles in Kuhlmeier . . .

The "ad parody—not to be taken seriously" in Hustler v. Falwell . . .

Pictures of the displays in Allegheny v. ACLU . . .

The newspaper articles in Cohen v. Cowles Media Co. . . .

The city council resolutions and ordinances in Lukumi . . .

The anonymous leaflets in McIntyre . . .

A picture of crosses in the square in Pinette . . .

The school's student-activity-fee policy in Rosenberger . . .

Correspondence and the newspaper article in Boy Scouts v. Dale . . .

Transcript of the intercepted telephone conversation in Bartnicki . . .

I much appreciated Orin's post criticizing the "Nearly Half in U.S. Say Restrict Muslims" reporting of a recent survey. As Orin pointed out, here's what the survey actually measured, quoting this report:

1) Muslim civic and volunteer organizations should be infiltrated by undercover law enforcement agents to keep watch on their activities and fundraising.

2) U.S. government agencies should profile citizens as potential threats based on being Muslim or having Middle Eastern heritage.

3) Mosques should be closely monitored and surveilled by U.S. law enforcement agencies.

4) All Muslim Americans should be required to register their whereabouts with the federal government.

44% of respondents said yes to at least one of these questions.

To Orin's criticisms, let me add this one: Options 1 through 3 say nothing about under what conditions these procedures are to happen. People can have lots of views on them. Consider, for instance, option 1. Some people might say that all Muslim organizations should be infiltrated. Others might say that most should be. Others might say that the government should infiltrate those that it has some reason to believe are being used as recruiting centers for jihadism (that's my view). Still others might say that the government should never infiltrate any religious groups.

But the question lets people choose either "yes" or "no." So the count of those who would "restrict[] . . . civil liberties of Muslim Americans" would include those who would infiltrate all Muslim organizations, as well as those who would simply reject the extreme opposite position that any religious or political organization must be immune from surveillance. (Plus, of course, it's a judgment call whether one's "civil liberties" include immunity from government infiltration of groups to which one belongs -- there are arguments on both sides, but the Supreme Court has generally held that such infiltration doesn't violate either the First Amendment or the Fourth Amendment.)

The hypothetical proposal in "All Muslim Americans should be required to register their whereabouts with the federal government" would be pretty clearly a restriction on civil liberties; I'd reject it myself, and I share Orin's regret that it polled 29%. But it's also the only option that specifies "all," and that would clearly be unconstitutional.

Reader Kieran Jadiker-Smith writes:

I am a gay man, and, on a few occasions, I've gotten the "what a waste" remark from straight women. I haven't found this offensive; generally it's said in a playful, joking manner, and is not meant all that seriously. I suppose if someone said it with wide-eyed seriousness, I would be a bit annoyed, but I've never encountered it in that context.

For the record, I do find the idea of my having sex with women quite disgusting. But somehow, when someone makes a joke like this, I don't feel compelled to conjure up some graphic and explicit image of heterosexual sex. I take it simply as someone saying, in a humorous way, that she finds me attractive.

It's possible to rationalize indignance at any kidding involving issues of identity, but I don't think it helps in a society where we increasingly expect people who are different from one another to get along and even be friendly with one another. I should also mention, at this point, that I am 20 years old and grew up in two highly diverse, cosmopolitan urban areas (Vancouver, BC and San Francisco) and my friends have always been a mix of races, religions, backgrounds, and, starting in high school, sexual orientations. In general — even in oh-so-PC San Francisco — I've found that people prefer being able to joke about these issues a little bit rather than walk on eggshells, afraid to say anything about them lest they give offense. I came out of the closet when I was 15, and I think the ability to joke about it — up to a point, anyway — helped ease tensions as friends and acquaintances (some of whom had never had a gay friend before!) adjusted to the idea.

This whole discussion — perhaps because it's that time of year — reminds me of an item you ran some time ago about whether Jewish people might take offense at being wished a merry Christmas. I, too, am Jewish. But, like you, I've chosen — sensibly, I think — to interpret "Merry Christmas" as something other than an act of hostility or a subtle suggestion that I should convert to Christianity. I very much doubt than many people — Christian or otherwise — intend it as such. I simply accept it as I think it's offered — as a wish for a happy holiday season, even if I'm not celebrating the holiday to which they specifically refer.

So, too, do I accept "what a waste" as it's intended — a lighthearted, joking compliment. I know this world is full of people who come pre-offended, but I don't think they — or people who cater to them — are really advancing the causes of respect, friendship, comity, civility, or tolerance.

For all the same reasons, I don't see a reason in the world straight men shouldn't adopt the same attitude if they hear the same thing from a gay man. The interpretation of context shouldn't be impaired by one's sexual orientation.

Well put, and I wish more people had this attitude. At the same time, since the purpose of "what a waste" seems to be a compliment, its users should realize that at least with some listeners — though not Mr. Jadiker-Smith — it may not be a very effective compliment.

We've been using Chris Lansdown's PowerBlogs service for several months now, and I've been very pleased -- pleased enough that I wanted to pitch it to all of you. The interface has lots of nifty features: tools to help create tables, bulleted lists, and numbered lists, a way to link related posts together, support for hidden text, easy blogroll maintenance, and a bunch of other things. (Of course, it also has all the normal stuff, such as support for comments, delivery of posts by e-mail, RSS feeds, multiple bloggers, customized layout, and more.) The system has been extremely reliable. And the technical support has been excellent. You can find more about the features here, and about the pricing here -- the cost is pretty reasonable, starting at only about $5/month, though it naturally goes up for higher-bandwidth or higher-space blogs. I highly recommend it.

My student Patricia Stringel -- who hastens to stress that her interest in this is purely academic -- passes along an interesting bit of trivia: In 19 states, including California, New York, and most of New England (so no Beverly Hillbillies jokes, please), first cousins are apparently perfectly free to marry.

While parent-child, sibling-sibling, and uncle/aunt-niece/nephew marriage and sex seem to be pretty broadly condemned in the U.S., there's much more disagreement on cousin-cousin relationships. Actually, it makes a good deal of sense, but it surprised me: I somehow assumed that cousin-cousin relationships were more broadly banned. (Note: The data is from a site dedicated to legitimizing cousin love, and I haven't checked it myself. I have no reason, however, to doubt its accuracy, since the site purports to provide helpful information for cousins and presumably wouldn't try to deceive them. The site also includes statutory language, which is another good sign, though it says it's only current as of 1999.)

Oh, and the most amusing part is the name of the domain -- "cuddleinternational.com," with the "cuddle" standing for "Cousins United to Defeat Discriminating Laws through Education."

I'm pleased to report that a couple of weeks ago, the California Supreme Court held that people are free to tell the truth about others' past crimes. Thirty years earlier, the court had held, in Briscoe v. Reader's Digest, that when a crime was long enough in the past, it would be an "invasion of privacy" for others to publish information about the supposedly "reformed" criminal, and the criminal could sue for lots of money over that. (California courts had also held that much earlier, in the 1930s, and some other state courts had followed suit.) Now the California Supreme Court has overruled Briscoe, and concluded that recent U.S. Supreme Court decisions protect accurate accounts of public records — such as people's past criminal convictions — despite the passage of time.

To explain why I think this is an excellent decision — and why I'm strongly opposed to some "privacy" and "paid his debt to society" rhetoric in such cases — I'm taking the liberty to exhume an old item of my own, from my 2000 article on Freedom of Speech and Information Privacy: The Troubling Implications of a Right to Stop People From Speaking About You, 52 Stanford L. Rev. 1049 (2000):

[In Briscoe, Reader's Digest was held liable for revealing that Briscoe had eleven years earlier been convicted of armed robbery (a robbery that involved his fighting "a gun battle with the local police"). The court acknowledged that the speech, while not related to any particular political controversy, was newsworthy; the public is properly concerned with crime, how it happens, how it's fought, and how it can be avoided. Moreover, revealing the identity of someone "currently charged with the commission of a crime" is itself newsworthy, because "it may legitimately put others on notice that the named individual is suspected of having committed a crime," thus presumably warning them that they may want to be cautious in their dealings with him.

But revealing Briscoe's identity eleven years after his crime, the court said, served no "public purpose" and was not "of legitimate public interest"; there was no "reason whatsoever" for it. The plaintiff was "rehabilitated" and had "paid his debt to society.") "[W]e, as right-thinking members of society, should permit him to continue in the path of rectitude rather than throw him back into a life of shame or crime" by revealing his past. "Ideally, [Briscoe's] neighbors should recognize his present worth and forget his past life of shame. But men are not so divine as to forgive the past trespasses of others, and plaintiff therefore endeavored to reveal as little as possible of his past life." And to assist Briscoe in what the court apparently thought was a worthy effort at concealment, the law may bar people from saying things that would interfere with Briscoe's plans.

Judges are of course entitled to have their own views about which things "right-thinking members of society" should "recognize" and which they should forget; but it seems to me that under the First Amendment members of society have a constitutional right to think things through in their own ways. And some people do take a view that differs from that of the Briscoe judges: While criminals can change their character, this view asserts, they often don't. Someone who was willing to fight a gun battle with the police eleven years ago may be more willing than the average person to do something bad today, even if he has led a blameless life since then (something that no court can assure us of, since it may be that he has continued acting violently on occasion, but just hasn't yet been caught).

Under this ideology, it's perfectly proper to keep this possibility in mind in one's dealings with the supposedly "reformed" felon. While the government may want to give him a second chance by releasing him from prison, restoring his right to vote and possess firearms, and even erasing its publicly accessible records related to the conviction, his friends, acquaintances, and business associates are entitled to adopt a different attitude. Most presumably wouldn't treat him as a total pariah, but they might use extra caution in dealing with him, especially when it comes to trusting their business welfare or even their physical safety (or that of their children) to his care. And, as Richard Epstein has pointed out, they might use extra caution in dealing with him precisely because he has for the last eleven years hidden this history and denied them the chance to judge him for themselves based on the whole truth about his past. Those who think such concealment is wrong will see it as direct evidence of present bad character (since the concealment was continuing) and not just of past bad character. . . .

[W]hich viewpoint about our neighbors' past crimes is "right-thinking" and which is "wrong-thinking" is the subject of a longstanding moral debate. Surely it is not up to the government to conclude that the latter view is so wrong, that Briscoe's conviction was so "[il]legitimate" a subject for consideration, that the government can suppress speech that undermines its highly controversial policy of forgive-and-forget. I can certainly see why all of us might want to suppress "information about [our] remote and forgotten past[s]" in order "to change . . . others' definitions of [ourselves]." But in a free speech regime, others' definitions of me should primarily be molded by their own judgments, rather than by my using legal coercion to keep them in the dark.

So the new California Supreme Court's decision (Gates v. Discovery Communications, Inc.) is a victory for free speech. And to the extent that it's a defeat for "privacy," it's a defeat for a form of privacy that the law ought not recognize — a putative right to stop people from telling the truth about what you've done.