COLUMBIA BROADCASTING SYSTEM, INC. v. LOEW'S INC.
In February 1939, British subject Patrick Hamilton published and copyrighted the play “Gas Light.” The play was later produced and performed in New York under the name “Angel Street.” After the successful run in New York, Loew’s Incorporated (Loew’s), better known as Metro-Goldwyn-Mayer, acquired the rights to the play and produced and released a movie version. In 1945, Jack Benny secured Loew’s consent to produce, perform, and broadcast a radio burlesque version. More than six years later, the Columbia Broadcasting System (CBS) produced and broadcasted a television show of the burlesque “Gas Light” starring Jack Benny and sponsored by the American Tobacco Company. Neither the CBS, the American Tobacco Company, nor Jack Benny secured consent from either Loew’s or Hamilton.
Loew’s informed CBS that it intended to enforce its rights against infringement, and CBS claimed that its production constituted fair use because it was a parody. Loew’s sued, and the district court held that the television production was an infringement on CBS’s copyright. The U.S. Court of Appeals for the Ninth Circuit affirmed by holding that the fair use doctrine—which generally protects those who use copyrighted material in compilations, listings, and digests—does not allow the wholesale copying of substantial portions of a copyrighted work for the purposes of parody or burlesque without the permission of the copyright owner.
Did the U.S. Court of Appeals for the Ninth Circuit err in holding that the fair use doctrine does not allow for the substantial use of copyrighted work for the purposes of parody or burlesque without permission of the copyright owner?
Legal provision: Copyright Act
No. The judgment below was affirmed by an equally divided Court.
Justice William O. Douglas did not participate in the discussion or decision of this case.
Argument of W. B. Carman
Chief Justice Earl Warren: No. 90, Columbia Broadcasting System Incorporated, the American Tobacco Company and Jack Benny versus Loew's Incorporated and Patrick Hamilton.
Mr. Carman you may proceed?
Mr. W. B. Carman: Mr. Chief justice, may it please the Court.
This is a case of first impression which tests the right of the copyright in order to limit, control or prohibit some other author in the creation of a parody or burlesque and in that -- to that extend it test the legitimacy of the arts of parody and burlesque.
Before I state the facts, I'd like to get a little terminology out of the way.
There will be no distinction made there in my talk between the voice of parody or burlesque.
The nature of the parody or burlesque, there may be some distinctions that I shan't make them.
The nature of parody or burlesque, I may say it's pretty easier to recognize, one that it is to define one, but the art consists generally in picking on some original, and in this discussion the original will be limited to a particular work of a particular author and then by use of exaggeration, distortion, all of the comic arts, all of the arts of humor, turning that original, metamorphosing as it might be the original and it's something comic and unusual.
The peculiar and unique effect with parody is really created by its audience and to a certain extent, where the writer presents sufficient similarities to the original in his work, so that the both similarities call back to the audience, their remembrance of what they first saw, and then they contrast that, in their minds with the funny things which the new author has done with it and that produces that rare unique result of a parody.
Its peculiar humor lies in the fact that the audience recognizes the object of a parody, and if doesn't recognize the object, then it fails.
So obviously the parodist needs to use a good deal of the original copyrighted work, because he has to point up the similarities between that work and his work, as well he does the differences.
Now I come to the facts of this case.
Justice Felix Frankfurter: You may need to rely on the memory of the audience to the original?
Mr. W. B. Carman: That's correct.
He stimulates the memory of the audience of the original if I may say it, Justice Frankfurter.
In 1944 Loew's Incorporated produced a very fine motion picture called ‘Gaslight' which was copyrighted.
It was based on a play by Mr. Hamilton, but the play is not involved in this case, only the motion picture copyright and there is a synopsis of this melodrama in the appendix to our brief.
It was an expensive play, a very successful play; it played to about altogether around 15 million people.
In 1946, it was withdrawn from domestic exhibition, but it continued to be used abroad.
Mr. Benny as we probably all know was a very successful comedian and actor in the motion pictures, satires, stage, screen, radio and television and he had accustomed in his radio programs, so that from time to time, the parody or burlesque of various motion pictures, and when he came into television in 1952, he put on a television parody or burlesque of this picture ‘Gaslight,' this Loew's motion picture ‘Gaslight', and it was about 15 minutes skit on his television program in which he -- it was stated to be a satire on Gaslight and he took a few of the incidents in the general storyline.
Justice Harold Burton: Did he make it with the parody or did he leave that to the audience?
Mr. W. B. Carman: He said it was a satire on the production of ‘Gaslight,' the words that I think he used and there's a synopsis to that also in the appendix to our brief to the extent that anybody can synopsize a parody or burlesque.
Loew's objected to that action on the ground that it wasn't infringement of copyright.
The Broadcasters claimed that it was fairly used and nothing was done about that particular program.
That happened to have been what we call a live broadcast; it was a broadcast direct from the stage over the air.
Now subsequently it became the custom to a photograph he had broadcast and put then on the film.
And when I met Mr. Benny in 1953, was preparing his next season's series of five programs, he decided to repeat or remake this broadcast, this parody of ‘Gaslight'.
Loew's found out that he was about to do that through the newspaper publicity and they got a temporary restraining order against the production of the program.
That temporary restraining order was amended by stipulation to permit the photographing of the program on film; the case was then tried on stipulated facts.
There was only one witness, a Dr. Baxter of the University of Southern California who talked about the literary rights; and the court held that there wasn't infringement.
The court first stated in its opinion and this was just to judge Carter, that the owner of a copyright was entitled to be protected against the taking of our substantial portion of its protectable material when that the copying of a substantial part constitutes an infringement.
That's the general rule; it took from what we call a plagiarism case.
It found then upon examination of the works, that there was a substantial taking by defendant from the plaintiff's copyrighted property, and it declared that under these circumstances if this were the ordinary plagiarism case, without the defense of burlesque as a fair us, it would clear under the authorities that there had been access, a substantial taking, and therefore, infringement.
Now, we concede that if this were an ordinary plagiarism case with two similar works involved that the taking of amount which we use for the parody, could properly be held to be a substantial taking from the original work.
The court, trial court then went on and cited and discussed a number of the cases involving fair use, but it categorized its pretence, the proposition that burlesques as a fair use justifies a substantial taking and it concluded and I quote, “Parody or burlesque taking is to be treated no differently from any other appropriation, that as in all other cases of burlesques taking the issue becomes first, one of the fact that is, what was taken, and how substantial was the taking, and if it is determined that there was a substantial taking, infringement exists.
The court made then formal finding that the television program copied a substantial part -- was copied in substantial part from the moving picture and that such part was a substantial part of the program.
If the use wasn't fair, and are made fair by the reason of the fact that the use was for parody or burlesque.
Justice John M. Harlan: What is the best source of finding out measuring the substantial taking?
You have to look at the film or do you have to -- you get --
Mr. W. B. Carman: You have to look at the film Your Honor and we concede there was a taking which would have been substantial under the rule, under the plagiarism rule, we concede that.
Justice John M. Harlan: Yeah, but that's, that's not enough.
Mr. W. B. Carman: We may say definitely, it is not enough Your Honor, definitely it is not enough.
Chief Justice Earl Warren: And does your argument go to the extent of saying that they could use the entire script as long as it was burlesque?
Mr. W. B. Carman: No Your Honor, it does not.
Chief Justice Earl Warren: Where is the divide?
Mr. W. B. Carman: The dividing line is this and now -- I hope to come to that in a moment, what I'd like to --
Chief Justice Earl Warren: All right, well take your time.
Mr. W. B. Carman: I'll definitely come to that.
Injunction was made permanent in this case.
No damage has been asked by Loew's since it was a test case and no damage was awarded.
Now the Court of Appeals affirmed and substantially on Judge Carter's opinion.
It accepted the finding that there was a copy of a substantial part.
It found that was supported by the evidence, and as I say we concede that.
Justice Felix Frankfurter: You say this was a test case, Mr. Carman?
Mr. W. B. Carman: Yes.
Justice Felix Frankfurter: And people just wanted to get a ruling from (Inaudible)
Mr. W. B. Carman: Oh no, Your Honor.
This is a very bitterly contested case, what Mr. Selvin described it below as being a case brought on principle, and I think it is a case brought on principle.
Justice Felix Frankfurter: Even principles can be -- can have standing.
Mr. W. B. Carman: Yes, it certainly can.
The court in the Court of Appeal looked down the fair use doctrine as being generally limited to the when “compilation (Inaudible) things digest and the like and it then adapted Judge Carter's rule that you test a parody and burlesque just the same as you do any other taking, and that the issue is what is taken.
How substantially was the taking, and if it was substantial, then infringement exists.
Now therefore, the lower courts held as a matter of law, that a parody and burlesque was legitimate only, if the amount of the copyright of the original which was used in its creation, is not substantial.
We thought that was an erroneous, considered as an erroneous ruling, we asked for certiorari and it was granted.
Now at the outset, this case depends upon the rule over Your Honor, which we think is applicable here of fair use.
In an answer to the Chief Justice's question, I want to develop and it takes me a few minutes to develop the limitations of this rule, which is the fair used doctrine.
We start with this proposition that the copyright act itself is broad in its language.
For our purposes it provides that the copyright owner has the exclusive right to print copy or sell his copyrighted work, to translate it or make any other versions, to exhibit, perform, represent, produce or reproduce it any manner or by any methods whatsoever.
But the Copyright Act stems of course, as all laws do from the Constitution and the Constitutional Provision in this case, if the Court please is a rather unusual one.
It's Article 1 Section 8, which says, the Congress shall have the power to promote the progress of science and useful Arts, by securing for limited times through authors and inventors, the exclusive right to their respective writings and discoveries.
You will note that the Constitution specifically provides, in this case the purpose of the Copyright Law, which is to promote the progress of science and the useful arts.
Justice Felix Frankfurter: I hope you're not going to argue that we have to judge in each case whether it does or doesn't promote --
Mr. W. B. Carman: No sir, I do not.
I think that Justice Holmes in the Bilstein case, as well determined that that's not the province of the courts.
Justice Felix Frankfurter: Right!
And release the great --
Mr. W. B. Carman: Now all of the rights even offered after publication stem from the Copyright Law, because at common law, once an author had written a work and published it, he had no further rights therein.
That's the American Common Law, has been declared by this Court as early as Wheaton against Peters and has always been the law of the court.
On other words, the author's right stemmed directly from the law.
A Common Law, once you've published it, anybody could use it, he had no more rights therein.
Now the makers of the Constitution recognized that it was tremendously important to this country, to see that learning and knowledge be disseminated and that the arts and sciences grow and flourish.
And they felt that they there was no real encouragement offered to produce that result, because once he had utilized his power to make a first publication, he had no further rights.
So, again, in order to promote the science and the useful arts and for that purpose only, they decided it give the author certain rights.
And the primary right obviously that the author should have, or at least they felt he should have was the right to market his work after publication for a limited period time and being free from having somebody else market the same work, but may I point out that this reward which they gave to the author under the Constitution was purely secondary and this Court has so held, the primary purpose of the act was to promote Science and the useable arts and only the rewards of the author was secondary to that purpose.
This Court has stated that principle very recently, it goes back to Chief Justice Hughes' statement in Fox Film against Doyal in 286 Federal, but this Court has repeated this statement in the Paramount case, in 334 US and (Inaudible) against Stein, i.e., that the primary purposes the promotion of the arts and the author's reward is purely secondary.
Now then, we therefore must construe the Copyright Act in connection with its primary purpose to promote the progress of science and the useful art.
Therefore, while we're not going to permit, and we should not permit some other author to market the copyright owner's work, we should not prohibit him from impeding the progress of these arts from destroying the very purpose of the Constitution by prohibiting him from using that work, and consequently it is not the law and it never has been the law, that regardless of the language of the Act, that a copyright owner has a complete monopoly of everything that appears in his work.
I can state it no better than as the late (Inaudible) Chapuis stated it in an article in which he wrote for the 45 (Inaudible) Law Review as filed.
Nobody else should mark the author's book, but we refuse to say nobody else should use it.
Progress would be stippled if the author had a complete monopoly of everything in his book for 56 years or any longer period.
Some of its contents must be permitted in connection with the independent creation of the other authors.
The very policy which leaves the law to encourage his creativeness also justifies it in facilitating the creativeness of others.
Now may I give an example, if it please the Court, and this is purely an example, for that reason there, I will bring things in a copyrighted work that are not covered by exclusive rights of the authors.
The best what we call uncopyrighted material, thoughts, concepts, ideas, now these maybe entirely original, they maybe very valuable, they may appear no where else, except in the copyrighted work, but they are not protected.
The best there are being not protected as so called uncopyrightable property, the best of rule has been stated many times, but the best statement is that of Justice Learned Hand I think, in the Nichols case which is in 45 F.2d 119 and the reason why those ideas, no matter how important they are, how valuable, how unique are not protected, is well stated by the court in (Inaudible) because it says that otherwise you did try to protect them, science, poetry, narrative and dramatic fiction and other branches of literature would be hindered by copyright, instead of being promoted.
Now I don't claim.
I want to make this clear; we don't claim that what we took here was uncopyrighted property.
We agree that what we took here was copyrighted property and in the amount, which the court might properly have found used I should say, instead it took, we used copyrighted property and in an amount which the court might find to be substantial, but I give this as an example Your Honors to show that the copyright monopoly is not all embracing and doesn't cover everything and never has.
And by the same reason, and for the same reasons, the doctrine of fair use to get to Mr. Chief Justice's question, the doctrine of fair use has been established in the law for the purpose of permitting certain uses of copyrightable property, because otherwise, for the same reason, the progress of arts and science in the primary purpose of the copyright law would be destroyed.
Now the fair use doctrine is not as the Court of Appeal seem to think sort of a convenient catchall phrase for a lot of miscellaneous exceptions to the law, and it certainly is not as respondents argue, just another name for the rule which says that a substantial taking maybe infringement.
In other words, as I understand respondent's argument, it is that any taking which is substantial is an infringement and the fair use rule that simply means that an insubstantial taking is not an infringement.
Justice Harold Burton: You would indicate that a fair use for parody purposes is probably called for a larger part of the --
Mr. W. B. Carman: That is exactly correct Your Honor and that is exactly correct Your Honor and that is the principle upon which I propose to proceed when I got my very fair use rule to applying.
Justice Felix Frankfurter: Mr. Carman it isn't relevant I think to your problem, except your answer under substantial use, but why is it that even taking a sentence or a paragraph of a whole book now requires or is assumed to require permission of the author and publishers?
Is it because there have been very restricted decisions of the law.
Mr. W. B. Carman: There have some very restrictive decisions; one decision for example said three sentences were substantial, but I know another reason is Your Honor is the very strange view that's grown up over the years that you can't use anything unless you put less affirmation, that rule has no basis in fact whatsoever.
Justice Felix Frankfurter: Well, of course a nice rule.
Mr. W. B. Carman: Yes.
Now with the fair use of rule, if it please the Court, is not as I have said just a miscellaneous a tag.
It's a fundamental concept of our Copyright Law, just as fundamental as any other part of in every word Judge (Inaudible) says about it.
He says, fair use was evolved as a concept by the course in the English speaking world where they view to aiding the development of science and arts by allowing the use of copyrighted materials, despite the monopoly of copyright.
Now let us see in what area this fair use rule populates, from directly to the Chief Justice's question.
We have on the one hand this rule of substantiality which is the rule the lower court applies stated conversely, no taking is an infringement unless it constitutes a substantial part.
There must be a substantial taking to be an infringement.
Now the lower court said there was a substantial taking, hence an infringement.
The rule is there must be a substantial taking to be an infringement.
Now that's in the nature of our rule de minimus.
It's been so stated by some other courts.
The way you test that rule, the way you find out whether there has been a substantial taking, you take a look at the two works.
You'll find a similarity that exists between the two works.
And then you'll see whether looking only at the copyrighted work, the material in the copyrighted work that appears in the new work is substantial, is more than not de minimus.
Now that's a restrictive and rigorous rule that you can imagine because it's usually applied in cases where there has been a literary effect.
Somebody has just walked in and taken it and used it for their own.
Now we in our brief set forth how (Inaudible) it is, but I'd like to point out that a single sequence from a movie has been held substantial.
An incident or a part of an incident in a play has been held a substantial taking.
The using of three sentences from one book was held a substantial taking.
The using of the lyrics of the chorus of a popular song is a substantial taking.
All those are held substantial taking, under the substantial taking rule.
But there's an area, Your Honors, between that rule which says there must be a substantial taking to be an infringement and the other end of the scale with which we concur that says that you must take so much of a man's work that you're trying to market his work as your own.
That's the area, if the Chief Justice will please, where the fair use rule comes in operation.
Justice John M. Harlan: Assuming you have an honest-to-goodness burlesque, Jack Benny's plus, do you recognize then this any limit to the taking?
Mr. W. B. Carman: Certainly, I do, Your Honor.
In the first place, you cannot take as much by burlesque as will reproduce in substantial part to the mind of the audience, the thing from which you took, so that it won't want to go and buy or see the things from which you took.
When it comes to the point of substitution where your substituting in this burlesque for the sufficiently, so that the audience's interest in the original show has been said here to be satisfied.
You've gone too far because then you destroyed or impaired.
The secondary purpose of the act which was to give the author enough encouragement so he wouldn't go ahead and produce these literary works and you gave him that encouragement by in effect saying, if you publish, we'll give you the right to have the monopoly on that publication and the right to gain money by it and nobody else can probably show work for a period of 56 years.
Justice Felix Frankfurter: I wondered if that test could scarcely were not in that case, if the man is (Inaudible) is good enough, you wouldn't want to see the original; it would expire very (Inaudible)
Mr. W. B. Carman: But Your Honor, that's something different again.
But, Your Honor, is really saying in that case is that they saw the lampooning so good that they thought the original work wasn't much worth seeing.
Justice Felix Frankfurter: That's right.
Mr. W. B. Carman: Well, but I think that answer is --
Justice Felix Frankfurter: The original work could be shabby and yet entitled to copyright.
Mr. W. B. Carman: Without a doubt, but your answer, Your Honor, all you're doing there is what you do in the ordinary case of literary criticism and that's the best example of the Fair Use rule.
I think the Fair Use Rule, Your Honor, is an --
Justice Felix Frankfurter: Can a literary critic in order to show his disregard to this or that bestseller just quote chunks of it?
Mr. W. B. Carman: You bet he can, I am sorry Your Honor he certainly can.
Justice Felix Frankfurter: You may just have understood --
Mr. W. B. Carman: He certainly can, Your Honor, and I'd like to cover that right at this point.
I will say that that principle is very best demonstrated by the cases that deal with literary criticism and review.
The whole Fair Use Principle is best demonstrated by those.
The literary critic can tell a story, he can go into detail, you're reading the papers and you tell the whole story of the motion picture which you're going to see which no other author can take.
That's a substantial part certainly, a critic can do it.
Justice Felix Frankfurter: But can Edmund Wilson just quote three chapters from books that I could name, but more in order to show how bad they are?
Mr. W. B. Carman: May I give, Your Honor, the rule and the case as it's laid down by Justice Story because I think --
Justice Felix Frankfurter: No, give me an illustration of a case in which a critic just quotes verbatim chapters in order to prove that it's (Inaudible)
Mr. W. B. Carman: Your Honor, I can't give you any illustration of a case because all of the literary criticism situations although is accepted by all the courts in this country and England are dicta with one exception.
Now let me, may I state what Justice Story said in this connection?
Justice Story says this, in sitting in circuit in Folsom against Marsh.
No one, there is an exception, Your Honor, an English case Bell against White and which I think is directly where they did quote a very substantial part in the criticism and it was held perfectly proper, but let me quote Justice Story's statement.
No one can doubt that a reviewer may fairly cite largely from the original work, if his design be really and truly to use the passages for the purposes of fair and reasonable criticism.
On the other hand, it is as clear that if he cites the more important parts of the work with the view not to criticize but to supersede the use of the original work and substitute the review for it such a use such will be deemed to be piracy.
And Justice Clifford sitting in the case, in circuit in the case of Lawrence v. Dana, said the same thing, reviewers may make extract sufficient to show the merits or demerits of the work, but they cannot so exercise the privilege as to supersede the original work.
And again, to answer to your question to Mr. Justice Frankfurter about the wrongness of the review, may I quote from the case of Hill against Whalen where it says this, “The reduction in demand, speaking of a literary criticism case, to be a ground of complaint, must result from the partial satisfaction of that demand by the alleged infringing production and a criticism of the original work, which lessened its money value by showing that it was not worth seeing or hearing, could not give any right of action for infringement of copyright.
I picked that for Washington Post and I read an article about review of a new play that was going on down here and it gave the story, the plan for rebuttal and I didn't want and go and see the play, but nobody could sue the Washington Post for infringement of copyright because the critic didn't like the play and I was in (Inaudible) what the critic said.
Justice Felix Frankfurter: But am I right in inferring from Justice Story's test that it's the subjective determination, think of -- just apply those words.
Is the critic doing this in order to indicate, to make clear what kind of style it is or is he doing it really to do the book in or (Inaudible)
Mr. W. B. Carman: Your Honor, I think that -- well the difficulty in these literary property cases as we put awful jobs on courts every time we turn around, as Justice Hand -- Judge Hand said, he is trying to draw the line between un-copyrighted and copyrighted property.
He says -- he said, nobody have ever drawn a boundary and nobody ever can.
This is as much as you can say it.
Justice Felix Frankfurter: I'm not talking about boundary, but I'm talking of direction, which is a different thing.
Mr. W. B. Carman: I think this Your Honor.
I think it is a duty of a court.
I think this, that if a court with finding that a particular parody or burlesque was dishonest, if a person try to go just as close to the line as he could, not try to make a burlesque, but try to get as much benefit out of the original work as he could in a sly way without quite stepping over that line which I mentioned, where he substituted for it, and I think if the court found out or had that feeling, they would say it's not a fair use, because the principle of Fair Use Your Honor, is the principle of the copyrighted act itself that is to promote science and the useful arts and you're not promoting it, if you permit them to act dishonestly.
Justice Felix Frankfurter: Well, my question, it didn't deal with, I haven't got the parody, I've got ---
Mr. W. B. Carman: But I think the same is -- I think the same is true of criticism Your Honor, I think the same rule is applied.
Justice Felix Frankfurter: There is another category of these problems Mr. Carman, the dictionary cases or the cases where you get a scheme out of an author and you use the scheme in your own way --
Mr. W. B. Carman: Your Honor --
Justice Felix Frankfurter: -- so that you can't parallel the literary word.
Mr. W. B. Carman: There are other cases.
There are no cases as closely in point as a criticism and parody case, and for this reason.
The reason literary criticism is so given such broad use is this.
In the first place it's a very valuable art, the art of criticism and then the second place, the normal critics got to use the work if he is going to do a job, he can't write a book, if he doesn't tell what the book is about and usually he's going to quote them, so that in order to promote science and the useful art we're going to give that critic the broad extent of this rule of Fair Use within the area if it please the Court of Fair Use.
I think it's a question of weighing on the one hand, the claim of monopoly of the offer, the claim to be exclusive just to be exclusive, and on the other hand, the public interest and the public need in making the particular use.
Now Mr. Justice Frankfurter referred for example to many of it through the dictionary cases and to the other cases of Fair Use.
We've the Fair Use doctrine for example in treatises where one historian will write a book and he'll go and get a lot of information and maybe quote quite a bit from other historian.
All we've like in cases of text books and we have written cases of synopsis and we have, we have a number of incidental uses, all of which are set forth in my book – in our brief and Your Honors we'll find an article that collects most of the cases in six as kept copyright symposium at Page 43.
Now you don't permit so much of a use in the case of the historian who goes to book and gets some information on it, but as you do in the literary criticism cases, and the reason is that the historian doesn't have to go there.
He can go back and do all of his own original research if he wants to, but literary critic can't.
Like the parodist the literary critic has to operate on something that's already there, but the historian can, so you're going to, in these cases, you're going to measure, you're going to weigh and the amount that's taken is going to be, is going to be one important part.
It's not going to be the major part, it's not going to be the substantiality rule, like mechanical rule.
You're not only going to say how much did he take, you're going to say, why did he take, what did he do with what he got, what product did he produce, and is it necessary or desirable for the progress of science and the arts, can he be permitted to take or on the contrary, will the science and the arts, will the useful arts in the dissemination of knowledge be held if you don't let him take it.
Now it's clear the substantiality rule is not proper test.
I've already given the literary criticism cases and I think it's perfectly clear that nobody else with literary criticism statements could use the, tell about the whole story of the play or a book, or quote copiously from it if he wasn't going to do it for literary criticism because if he did he would be infringing those exclusive rights which the Copyright Act says, but the critic can do it.
Because it's a public interest that he do, do it and therefore we won't let the office say, well, I'm the exclusive owner, so I won't let you use any of my work, even though it doesn't hurt me financially.
It doesn't, it doesn't interfere with my right to market my own work.
I'll give one more example of the fact that the Substantiality Rule is not the basic rule.
It's been a held in two other case, one is cited in Mr. Selvin and one in ours, the Robbins case in our reply and the john's case and Mr. Selvin's brief, that the taking of a single course from a copyrighted song is a substantial taking, but on four occasions it's been held that the use of a single course from the copyright song is a fair use and it's depended on how it was used in one case, in an article, about the Green Bay Packers, they use the Green Bay Packers song, held it a fair use.
In another case, in an article about the (Inaudible) if the pro white they use the old Perils of Pauline song that we remember many years ago, held the fair use.
In another case in the story, where (Inaudible) he quoted a popular song as an incident, held to be fair use.
In another case, a singer is saying the chorus of a popular song, held a Fair Use because in those situations there wasn't any destruction of this marketability right, and it was in the public interest of (Inaudible) and therefore the court said, there is no infringement in those situations.
Now it's our position Your Honor that parody and burlesque are entitled to the same rights, be measured by this same kind of measurement as literary criticism, and for the same reasons, not because they are criticism, they are, a parody can be a very vital criticism.
I don't think there was ever any better criticism than Fielding's Shamela when he hit at Richardson's Pamela, but it's not because it and most parodies are critics because most parodies that make people think of themselves well, really was that original (Inaudible) as I thought it was when I heard it.
The parody kind of gives you a little doubt in your mind, but that isn't the reason.
The reason why parodies and burlesques are entitled to the same fair use as is literary criticism, is for the same reasons.
First, it's an important art.
It's one that we ought to protect and foster, and second, it's got to use the substantial part of the original in order to live and to grow.
I don't have to do much arguing.
I don't think about saying that parody and burlesque is an important art.
It's as old – older than the Greek.
Somebody and I don't know who it was, once said, that the first parodist was the witty neighbor of the first (Inaudible) and it goes back as (Inaudible) in the Greeks.
Most of our great writers, many of our great writers have written parodies, Fatery, (Inaudible) Fielding I've already mentioned, Kipling has written them.
It's a special kind of art that the freedom loving people like.
Americans, and English and French are the real artists at parody.
Justice Felix Frankfurter: I'd hope that you would mention max (Inaudible)
Mr. W. B. Carman: I have never Your Honor.
I've never heard of a Russian or a German parody.
There maybe some but I never heard of.
It's a kind of a thing that we like to laugh at each other and we like to laugh on ourselves and that's what a parody does.
It's sort of says in effect why so (Inaudible) little man, you have been awfully serious about this.
You see how, and that's a good thing for all of us.
It's a wonderful thing and we ought to protect it.
It's, I don't think I have to argue that's a important art.
Now secondly Your Honor, it's got to use a substantial part of the work and the plagiarism sense.
I know that Mr. Selvin will disagree with me on this subject, but I think that from the very nature of this kind of an art it must use a substantial part of the work.
After all it's got to use the original, you can't have a parody without an original, and if it's going to strike at the story just as Gaslight struck at the story in this situation, it's going to have to use a part of that story or it doesn't have any effect.
I think if Your Honors will read and look at the parodies in the appendixes which we have summarized parodies in the appendix to our brief, you would realize that every one of them took what that de minimis or substantiality rule would call substantial.
They have to, to get any effect to them and get a new (Inaudible).
Mr. Selvin suggests where you can use un-copyrighted property?
You can use ideas or concepts and you can do it that way?
Oh, you can sure.
There have been parodies of style yes, many of them.
There have been parodies that don't strike at particular book, many of them.
You can do that.
I suppose you can paint a great work of art and you don't have to use color, but when you come down and having a thing that's going to live, after all these things are un-copyrighted.
They are not protectable because of their generalities, and the parody is got to be protected.
Now I have got parody never substitutes for the original.
It never detracts from the people's enjoyment of that original.
If it does, if it substitutes, if you can go and see the parody and say, well I don't care I have seen all of my need to see the original show then it's an infringement Your Honor.
It comes into that, but that isn't what a parody does.
The parodist doesn't sell the original.
He tells the people -- he doesn't say look I am showing you the original.
He says, this original belongs to the man who wrote it, now look what I do with it.
You remember, you remember how this person did this line.
For example, let's take Lewis Carroll's famous parody, ‘You are old, Father William the young man said, that's a direct parody.
That line is directly taken from a very moral poem by Southey, and I am sure that when the Lewis Carroll's poem came out everybody saw it, well look at how moral and look at how pious Southey was and look what Lewis Carroll does with it.
And he wasn't trying to sell Southey's work and we in Gaslight -- in our parody we weren't trying to sell Gaslight, we weren't trying to show to the people what they did in Gaslight.
We were trying to show to the people, to say to them, this you remember what they did in Gaslight, look how we fixed it up.
Look how we made it funny, look how we changed it and create that aspect in the minds of the operators.
So, I think that the parody and burlesque fulfill all of the requirements.
For the right of Fair use just as literary criticism does, not because it is criticism, but because it's an art that we want to protect.
We want to have more parodies like those I put in our appendix.
We want to keep, we don't want to lose it, we don't want to say that come 1958 those parodies die in America.
And it's an art that we want to protect and those parodies had to use what would have been a substantial part under the plagiarism rule of the other work.
Now I would like to cover briefly two or three criticisms of this rule that respondents have put up.
They say in the first place, well your parody was commercial.
You put it on television and after all the American Tobacco Company sponsored it, so you had a commercial use.
Your Honor, it wasn't commercial, the parody wasn't commercial.
It's certainly isn't commercial because somebody paid the author, and I don't think it's commercial because it happened to be the American Tobacco Company to pay the author.
The parody wasn't an advertisement.
That's simply a new method which we have developed over the years in this country for, of economy, of the economics of it.
Television and radio operates and they produce their works of art if you want to call them that, and they are paid for by advertising sponsor, but that doesn't make what they produced is commercial.
There is nothing commercial about that, perhaps I won't say that auto light was the work of art, that's the name of our parody.
I won't say that it was.
It gave me a lot of fun and I think it was a much work of art as a lot of movies I have seen and lot of books I have read, but I wouldn't say that.
But if it wasn't, may be tomorrow one will be and the mere fact that it was put on television and sponsored by a sponsor doesn't make parody advertising or the parody commercial, any more than it would be, if the Bob Merrill company should decide to give away a bunch of books for the purpose of advertising, not anymore Your Honor, then is the case where the artist or (Inaudible) where right next in the middle of your story you see the advertisement for the Buick automobile and probably the writer of that story got most of his money in the record from the General Motors who bought the advertisement, but that doesn't make the story commercial.
Justice Felix Frankfurter: What would make it commercial?
Mr. W. B. Carman: Well, I would imagine that perhaps the same commercial would be, would be commercial Your Honor.
Justice Felix Frankfurter: I am a bit surprised that you don't say -- the commercial argument and so what.
Mr. W. B. Carman: Well, I will say that too Your Honor.
Now the other point that Mr. Selvin makes, first he says, well, we ought to have the right to make the parody.
You took away that right.
We shouldn't write to make our own parody.
Well, Your Honor I don't think the Copyright Law intended to give him a right to make his own parody anymore than it intended to give him a right to control criticism.
He might just as well have said, well you can't choose anything in this article criticizing my work, unless you get my permission and you got to say good things about it.
So I don't think -- now another point that they try to make it is there is competition.
Well, there isn't any competition between our work and his work as being the same work.
Surely, there is competition but every parody competes for the eyes and the ears of whoever is going to see it, it only goes to the people who can read or see or hear.
Take Ms. Skinner's wonderful parody and I hope Your Honors have all read it, called, 'For Whom the Gong Sounds' and it's a wonderful parody of Mr. Hemingway's, 'For Whom the Bell Tolls'.
We have it set out in full in our appendix, and I hope you have all read it.
Now that competed it.
If I had $2.5 and went down to (Inaudible) to buy a book, I could either buy 'For Whom the Bell Tolls' or 'For Whom the Gong Sounds'.
Justice Felix Frankfurter: And they both took even greater author to (Inaudible)
Mr. W. B. Carman: I have now doubt, but certainly that doesn't make Ms. Skinner's parody or burlesque illegitimate, because of that fact.
In the turn of the century here (Inaudible) Field used to put on -- that's before my time, but (Inaudible) Field used to put on a burlesque in one theater right next door the original would be playing, and I could walk down and had I been there and have taken my choice.
Now I didn't -- wouldn't have gone to see (Inaudible) Field because I thought I was going to see the show that was being on next door, it would have been a kind of thing I wanted to see with (Inaudible) Field is dead.
So I don't think that going to competition.
You should have fair.
Then the final thing is as I have already mentioned and Mr. Selvin says, well maybe you have got a dim view or a picture from looking at this parody.
Well that's something he is got to expect.
I mean the writer of a book has got to expect that somebody is going to take a dim view of his book and I don't think he can complain about that kind of a situation.
I think that's one he must face by himself.
So basically it seems to me parody has these rights.
Now Your Honor, we do not want to get very much help out to the authorities.
We have got them all set forth in our brief and we have got them set forth and Mr. Selvin going to set forth in his brief, but you won't get much help out of the authorities, this is a case of first impression, neither the case authorities nor the text books.
I agree with Mr. Selvin, most of the American text say you can parody and burlesque, it's fair use, but they don't say why and they don't say much about it.
There are two notable exceptions which I would like to call the Court's attention.
First, a very fine article by a Judge Yankwich in 33 Canadian Bar Review on this case and on this problem, which is entitled Parody and burlesque in the law of copyright and secondly a very extensive note in 56 Columbia Law.
And I would to take a moment to talk about the second parody case, there has only been two really in the country and that came up subsequent to this case it is what I call the attorney case.
It was a case of Columbia Broadcast, Columbia Company, Columbia Pictures Company against National Broadcasting Company in 137 Federal Supp.
348 and that was a case in which after the Benny parody, since these are put on one of the picture from Here to Eternity called Here to Obscurity.
In those days Your Honor we had a few parodies on television.
Since this case got started we don't have many more because nobody can face that Substantiality Rule, nobody would dare to write a parody with a Substantiality Rules during the phase of de minimis rule, so we don't have them.
This case has done that.
Much it's almost --
Justice John M. Harlan: How would you tell that?
Mr. W. B. Carman: How can I tell what your honor?
Justice John M. Harlan: What you just said, the number of parodies is diminished since the decision in this case?
Mr. W. B. Carman: Because I watch television, if Your Honor please and I don't see them anymore.
Justice John M. Harlan: There might be other reasons?
Mr. W. B. Carman: There may be, but I think this is -- knowing the industry a little bit I think this is a pretty good reason.
Justice Felix Frankfurter: It's a brave industry, isn't it?
Mr. W. B. Carman: No it is not, neither half of it Your Honor in the -- since these are put on this parody called from Here to Obscurity and Columbia sued him.
That case also came before Judge Carter and he decided and favored the defendants.
He decided there was no one infringement.
He was faced with a dilemma in that case.
In that case, we had -- the obscurity hadn't used what he called the storyline to the same extent that they had in this situation.
Judge Carter was somewhat obsessed by this storyline idea that the parody was bad if it took the storyline.
But, he thought we ought to be able to do the Eternity case.
He thought we ought to be able to do that.
At the same time in that year since we've learned a little bit more about how to present a case and maybe judge Carter thought a little bit more about it, he also came to the conclusion as he says in his opinion that you ought to be able to take more if you were using a burlesque or a parody than you were on a serious proposition.
You remember his first rule was treat it the same as any other appropriation, but in this case he decided to really opt it, but he had a dilemma.
He had many cases in front of him in which he said the substantiality rule was the basis of it, that's all, he (Inaudible) point of dilemma, and he said in the Eternity case, yes, you ought to be able to take more than you could if it was a serious case, so long as it is substantial or you can see the obvious the contradiction that arose in that situation.
Now, on the ultimate issue of fact in this case Your Honor is to whether applying the rule for which I have argued, the rule of fair use which is that in this area, this area between no infringement on the one side, and all was infringement when you substitute on the other, you ought to consider the rights of the public, the primary purpose of the act.
Upon the – (Inaudible) an issue of fact is to whether this parody did substitute and therefore was back, all right, that matter has never been decided.
The lower court simply said, if you take more than a substantial, it's an infringement.
So that issue wasn't that -- which we feel is entirely wrong, that issue was never been heard; perhaps this Court will prefer to send the case back to be heard again.
Maybe this Court would like to see the two works and decide that issue of fact for itself.
Justice Felix Frankfurter: May I trouble you to restate what you think is an issue of fact that would be appropriately -- that would be an appropriate test for adjudication by the trier of the facts.
Mr. W. B. Carman: I would say that the issue of fact in this case is this.
Does this parody of ours violate the fair use rule in that, it take so much of the original work that it substitutes therefore in the minds of the audience and therefore destroys the purpose of the act to whip the purpose to give him in for a limited period of time the right to market his own work free from somebody else's marketing that same work.
Justice Felix Frankfurter: And you -- I followed your argument as I did with intentionity, very carefully, you would say that the error of the lower court or courts, both of them, lies in the fact, they thought that they apply the test of substantial content taking.
Mr. W. B. Carman: From the original, and that's all.
Justice Felix Frankfurter: At least have a substantial, whatever that maybe, even in this case it was, a substantial content demonstrated by parallel columns, QED.
Mr. W. B. Carman: QED, that's what this Court --
Justice Felix Frankfurter: That's --
Mr. W. B. Carman: That's exactly correct Your Honor.
Now, I don't think I am not going to argue this -- the matter of fact because if this Court wants to see those pictures, it's another case where 10,000 words don't equal one picture.
That's a determination and the only way you can determine is by looking at the pictures themselves.
I will say this that I don't believe this Court or any court would ever holds that there has been a substitution that what we did was put on Gaslight in whole substantial part, we didn't, we put on our parody of Gaslight.
We didn't put on Gaslight, we didn't try to sell Gaslight, and we didn't interfere with their selling Gaslight.
Now Your Honor, when this case was in the lower court, Mr. Selvin said and I think properly so that this was a case of principle.
The principle for which he contends which is the substantiality rule, means that while you do protect the naked exclusivity rights of the author, you do so by hamstringing if not destroying parodies and burlesques.
The principle for which we contend on the other hand while it maintains the copyright owner's right to market his work free of the claims than anybody else to market the same work and that's what rightly was given so that there would be encouragement to produce, nevertheless permits parodies and burlesque to continue.
It will permit not only us, we are here today, but those who come after us to see and hear parodies at the time we have in our appendix there to see again or hear again a chandler, a Salt Water Taffy, a Rupert the Resselmbler, of For Whom Gone Son, those types of things that the future can see in here, they took substantial work, yes, they took substantial parts, yes, but it will permit that to be done in the future, and thereby in my opinion, it will fulfill the Constitutional mandate to promote these useful arts rather destroying them or hamstringing them to the point where they won't be effectively done.
Chief Justice Earl Warren: Mr. Selvin.
Argument of Herman F. Selvin
Mr. Herman F. Selvin: Mr. Chief Justice and may it please the Court.
It being conceded as indeed it has been conceded since the inception of this case that what was taken by the petitioner's parody a part was the kind of a taking which all of the decisions hold to being infringement of copyright.
The difference between Mr. Carman and myself becomes somewhat a narrow one.
His argument as I understand it is that parody because of its peculiar needs must be subjected to a somewhat different rule in the respect, in respect of what it may take from a copyrighted work than any other work, and that the doctrine of fair use so called is not as I hope to be able to demonstrate before I am through it is, merely a convenient expression for the proposition that one does not infringe a copyrighted work if he takes less than a substantial part of its copyrightable elements.
Now, since the right which was held infringed here is a statutory right and cannot exist apart from statute, perhaps as good a place as any to start is with the statute.
But, before starting with the statute, I'd like to go back to the Constitutional power pursuant to which the statute was enacted, and even beyond that to the legal context in which the Constitution was enacted and with which legal context, the framers, certainly those who were primarily responsible for the copyright power were familiar.
It had been determined in England sometime before the Constitution was adopted, and I think the best expression of it, certainly the first expression of it was in the judgment of Justice Willes in Millar against Taylor which was decided I believe in 1769, that the teaching of a copyright work was free for all to use, But, when an author published a book even though copyrighted under the then existing English statute which was the first copyright statute so far as we know under the Anglo-American jurisdiction, he presented to the public his ideas, his intellectual conceptions, his theme, the teaching of the work, and that all were free to use that for any purpose which they desired.
But and he justified that or pretty much the reason that Mr. Carman has stated that it was necessary and desirable to promote the progress of the arts and sciences by disseminating information and learning the researchers and discoveries of the learner.
But, he went on to say in effect the manner of expression, the arrangement of the words, the sequence of the words, the individual touch that the author gives, the concrete form into which he puts the abstractions, the intellectual abstractions are the things which copyright protect.
Now, Madison and Pinckney who proposed the copyright power in the Constitutional convention were undoubtedly familiar with Millar against Taylor.
It was not only the leading case at that time, but it was about the only decision in England at that time as well as Donaldson against Beckett which came up in The House of Lords after Millar against Taylor.
When they drafted the Constitutional power reciting its purpose to promote the progress of the sciences and useful arts; I think it is fair to say that they had in mind this very proposition that had already been laid down in the English cases.
Now, if they were thinking of promotion by disseminating the teaching of the work, but not by making the work public property and so far as its concrete form or expression is concerned, and I think that's shown by another part of the same Constitutional provision which is just as important as the statement of its purpose and that is the method by which that purpose was to be achieved, and the method was by securing to authors the exclusive right to their writings.
Now, the Congress conformably to that power has enacted from time to time copyright statutes, resulting in 1909 in a general revision which is our present statute with very few changes since then.
The right which it confers as it must be under the Constitution is an exclusive right, and that right in relation to our problem is this, to copy an event, to perform, represent, or exhibit, to make or cause to be made a transcription or recording by which in any manner or by any method, the work maybe performed, represented, or exhibited, and to perform, represent, and exhibit.
So far as statutory language is concerned, the act makes no distinction among the classes of works or the classes of persons who are subject to the exclusive right thus granted.
It carves out no exception for parodies or for parodists.
It carves out no exception for any kind of work.
There is significance in the use in the statute of the phrase in any manner or by any method.
The drafters there were not indulging in the favor of lawyer's habit of cumulating synonyms.
They were referring to two different ideas, in any manner, meaning in any mode or in any medium, by any method meaning by any mechanical means which maybe available to transcribe or record or reproduce the work if it is a work susceptible of that kind of expression.
Now the 1909 Revision was not just another day's work in the Congress of that era.
That provision was the product of over 100 years experience with copyright statutes beginning in 1790 as far as the Federal Statute is concerned and constantly amended over the time and amended I think with some significance, always in the direction of broadening the coverage of copyright, so that eventually as we have it now, virtually all the forms of creative expression are now subject to the Copyright Act, maybe copyrighted, and therefore obtain the exclusive right to which the statute refers.
It was the product of more than that 100 years experience and that broadening trend that has continued ever since the first statute.
It was the product of a very determined movement among representatives of all of the creative branches of the arts in this country, who felt that the copyright statutes were patchwork as of the turn of the century, but they didn't adequately meet modern demands.
A movement which was headed up considerable part by men such as Victor Herbert, John Philip Sousa, Mark Twain and certainly the latter was no stranger to parody or burlesque.
The Congress itself or a committee of The Congress, committee on patents, held extensive and intensive and elaborate theories on the revision of the Copyright Act.
As the report says, all of us who desired to be heard were heard.
We cannot assume in view that history and a few of the ancient lineage of parody to which Mr. Carman refers, we cannot assume that the Congress was unaware of the act or indifferent to the needs of it, and when it failed to make any exception in favor of parody or parodists of the 1909 revision broadly granting an exclusive right as it did, its failure was significant.
Had the Congress wanted the exception for which Mr. Carman speaks, it no doubt would have said so in 1909 or in the 50 years since.
Now, we come to the argument of necessity.
In all through this case the petitioner's reliance has been on the argument of necessity.
You can't have parody they say and they have said it from the start, you can't have parody without taking something from the work that you are parodying.
Well, I would like to suggest in the first instance with respect to that argument, it sounds to me like a question of policy for the Congress to determine, not a question of fact or a question of law for the court to decide.
And for the reasons which I have indicated, we can't assume that the Congress went ahead blindly for forgetting parody when it enacted the present law.
But if it is a question with which we should be concerned in this case, I make two further suggestions, that both as a matter of common knowledge and as a matter of the evidence in this case, the argument for necessity is destroyed.
No doubt there are and have been in the thousand years or more of which we know of parody.
There have been so called direct parodies, where some single specific work is burlesque.
But, by and large, so far as my survey of the field has made it possible for me to form an opinion, by and large the great mass of parody or burlesque is parody of ideas, of schools of thought, of attitudes, of political and social causes, and even in the literally and dramatic field, not of specific works, but of schools of work.
You take -- following up mentioned in the oral argument an example which is emphasized in petitioner's brief Northanger Abbey by Jane Austen, yes, Northanger Abbey started out as a lampoon, had something called The Mysteries of Udolpho, but, what it wound up as was not a parody of The Mysteries of Udolpho but of a class of novels of which the Mysteries of Udolpho was typical, and it lampooned not the specific work Udolpho but the whole class of so called horror novels and their own realistic approach to the problems of life.
And that's typical of most burlesque or parody.
But, even in the direct parody, when that which all everybody agrees is free even in a copyright work; it's plot, it's theme, it's intellectual conceptions, it's ideas, it's teaching, when that is free to anyone, even the direct parodist has all the material that he needs with which to furnish the identification with the original that is the basis of the claim of necessity.
From here the eternity is a good example regardless of what Mr. Carson's opinion may be -- Carton's opinion maybe as to Judge Carter's -- the reason for Judge Carter's decision in that case, his decision in that case and in this case are perfectly consistent with each other.
He looked at the words in each, he said, in our case, there has been a substantial taking, a substantiality is measured in the law of Copyright, but in the eternity case there hasn't been, why? Because Sid Scissors stuck to the general coop, the general theme from Here to Eternity.
Anybody who saw the parody and who had read either the novel or seen the Motion Picture would know immediately what was being parody.
But, he had only taken that, which is free to everyone, and he made a very good parody, just as funny as the one that's involved in this case, if it's fun that we are after.
Now Dr. Baxter who testified as an expert witness for the petitioner is not really when you read his testimony at large, is not really in disagreement with that proposition.
Dr. Baxter is a very charming and learned man.
I do not appreciate either his honesty or his fairness or his learning when I say that as an expert witness, he was an advocate just as the lawyers were and quite properly so.
Nevertheless, there is much in his testimony, supporting that idea if we are going to decide this question in a lawsuit rather than in the sort of an investigation, it could be made by a legislature, there was much support to the idea, that true parody, true burlesque does not parallel the original, never does, but actually, it is as he said I think at page 150 of the record, simply an excuse for having fun with an idea.
Well, ideas as one district judge in New York said, ideas are free as air as even the Stationers' Company in England would admit.
So, we say that the argument of necessity has no support actually either in the record of this case or in common knowledge as to the nature of the art.
Well -- and what about fair use?
Fair use with all difference to the many judges who have used the expression is a tag, it's a label.
And whenever a legal concept or a legal doctrine is given a tag of that sort, there is always the danger that if we concentrate on the label, we won't see what's inside the package, and that's what's happened with the so called doctrine of fair use as it is sought to be applied in this case.
Fair use does not have the term, fair use does not have a mysterious origin.
So far as I have been able to discover, its first use or of an equivalent expression, was in England in 1810 in a judgment of Lord Evelyn, Brookins against Stacey, the cases to which I refer are all cited in the brief, so I don't stop to give volume or page number.
Lord Evelyn was significantly enough discussing in that part of his opinion the question of how far a critic or reviewer could go.
And he said that the critic or reviewer has no right to copy or reproduce the whole or a substantial or material part of the copyrighted work, although he may indulge in fair quotation.
Now, it's quite obvious when you see it in the acquisition of those two terms.
The whole or a material part of the work on the one hand, fair quotation on the other, that Lord Evelyn was not thinking of where quotation in the sense of anything that would be more than substantial itself or substantial.
Well, that usage of translated into the term fair use apparently caught on with British judges.
What we find in the House of Lords in Chatterton against Cave which came about 1878, we find Lord Hatherly saying, again discussing the question of how far a critic could go in a review.
If the part taken is neither material nor substantial, if in other words as some judges put it Lord Hatherly said only a fair use is made, there is no infringement and that usage is continued in England down to the present day, even though the Act of 1911, the Copyright Act of 1911 made a very substantial change in the English law in certain situation.
The American usage has conformed to the English usage.
It has been here as in England, simply a convenient label for the legal concept that infringement requires substantial taking of the copyrightable elements of the work, not a taking of the taking of the uncopyrightable elements or something less than substantial of the copyrighted elements.
In America, I think the usage starts with the case to which Mr. Carman referred, with Mr. Justice Story's opinion when on circuit in Folsom against Marsh.
Folsom against Marsh is an interesting case aside from the fact that it involved copyrighting the private letters of President Washington.
It contains as an attempt on Mr. Justice Story's part to give some specificity, some specific content to the substantiality rule, probably the most widely cited and quoted passage in Copyright Law when he said that what the courts will look at are the nature, the quantity, and the value of the extracts made, the purpose and objects of the selection or the selections made, the effect upon the copyrighted work, those three elements, the same three elements and I might add which Chief Judge Yankwich adapted in the article to which Mr. Carman referred and which incidentally was a critical comment by Judge Yankwich upon Judge Carter's decision in this case while this case was pending in the Court of Appeals.
Now Justice Story's comment obviously had in mind the English usage and I think that is established by an interesting fact among the very many times from which the passage has been quoted are at least two occasions when it was it quoted with approval by two different vice-chancellors in England, about the middle of the 19th Century at a time when English judges were little aware and wholly indifferent to what American courts were doing as a rule.
Actually, the strongest authority it seems to be that can be cited for the proposition of fair use means what I have tried to say it means instead of what Mr. Carman says it means is the authority Judge Learned Hand who on two, at least two different occasions in the Second Circuit said this, “the question in any case is whether the part so taken is substantial and therefore not a fair use of the copyrighted work.”
Justice John M. Harlan: What are you reading from, Mr. Selvin?
Mr. Herman F. Selvin: Nichols versus Universal Pictures.
That is 45, Your Honor.
I am actually reading from our brief at page 29.
Justice John M. Harlan: Thank you.
Mr. Herman F. Selvin: And then in the Sheldon case he went to say copying might at times be a fair use, but it is convenient to define such a use by saying that others may copy the theme or ideas, or the like, of a work, though not its expression.
Justice William O. Douglas: Is that a parody case?
Mr. Herman F. Selvin: I beg your pardon, Sir.
Justice William O. Douglas: Is that a parody case?
Mr. Herman F. Selvin: No, no neither of these were parody.
Nichols was Abie's Irish Rose and The Cohens and The Kellys with the two works involved there and Sheldon was a the motion picture Letty Lynton.
Justice Harold Burton: The Dishonored Lady case.
Mr. Herman F. Selvin: Dishonored Lady and Letty Lynton, both being based to some extent on the case of Madeleine Smith in Scotland.
Well now if fair use is merely the label as I have tried to say or the concept of substantial taking which from the beginning has permeated copyright law, there is, I respectfully submit, no question left in the case where the finding a fact that there was a substantial taking of copyrightable and copyrightable material is not only not challenged, but is conceded to be correct from the facts and if fair use does not permit anything more than a substantial taking; if it is not an excuse for substantial taking then infringement has been made up.
Even so, if we take the three criteria of Mr. Justice Story and they have been frequently repeated throughout the cases and assume that fair use means something more that just the ordinary test of substantiality, it seems to me we must arrive at the same conclusion which was reached both courts below.
As to quantity and value of the parts taken the finding is dispositive, definitive, obsessive with substantial.
Now substantiality is not a mechanical test.
It is a pretty flexible one.
It can vary with the nature of the work from which the material is taken, the nature of the work into which it is taken, the nature of the material and its importance in place in both works.
Mr. Carman referred to various instances which I gathered he thought was somewhat shocking.
One sequence of a motion picture was held to be substantial.
Well, that is the Harold Lloyd case, Harold Lloyd against Universal.
One sequence, why, because the court said it was the core or the heart of the comedy in the picture around which all else revolved and therefore it was so important in the picture that it was substantial, even though it wasn't the whole picture.
Three sentences from a whole book.
Well, that was held to be an unfair use.
Three sentences on the effect of tobacco on the throat, taken out of a medical textbook and quoted in a cigarette ad.
Why did the court say that was substantial?
Because it represented all of the medical treaters substantially, all of the medical treaters had to say about it and it was a very prominent part of the advertisement into which it was it copied.
They said it was not a fairy use.
It is the chorus of the popular song held to be substantial.
Well, anyone familiar with the material that comes out of Tin Pan Alley knows that a popular song has as fixed form as a sonnet.
Sixteen bars repeated.
It makes up the chorus of a popular song and it has gotten so now that I don't think popular musicians even write an introduction, because it is never played.
All you ever hear is the chorus.
So if you take eight bars of the sixteen, you have taken at least half of the song and if you take sixteen bars you have taken the whole song in popular music, because that is the formula, sixteen bars repeated.
But in any case, any court has considerable flexibility in its determination of what is or what is not substantial or an important taking.
Well, the second of the criteria the effect upon the plaintiff's works.
If recognized both here and in England then under copyright statute such as exist in those two countries proofs of injury is not necessary.
It is enough that your right of exclusion has been invaded, but if injury is necessary, we can have it here.
The copyright act gives us the right to reproduce this work in any manner or by any method.
That means we can remake it, if we desire.
And by remake I do not mean so simply reprinting the old prints, but actually making the picture over again, rewriting it, a new script with a new cast, and actually photographing it all over again.
We can do that as one of our rights and for the period of the copyright it is an exclusive right.
We can remake it if we wanted a humorous version.
If we desire we can make it in a condensed version serious or comic suitable for exhibition on television at either 15 or 30 minutes periods or one hour periods.
Justice William O. Douglas: Maybe with the copyrights, can those be copyrighted?
Mr. Herman F. Selvin: Yes, as motion pictures photoplays they could be or as dramas.
Now that's a right and a potential market form which we have been forced off.
Benny's motion picture program of his parodies on motion picture film, it can be exhibited and re-exhibited all over the country on television.
It can be exhibited at motion picture theaters.
Now remember, concededly it is composed of our material.
It is conceded that in substantial part is our material.
They can put it on television, the records show that on the average they estimate that Benny gets about 25 million viewers on any one night.
The 25 million people watching Benny using our material when some of them might perhaps be in motion picture theater watching one of our pictures.
Now as I said in the brief, of course, we have to suffer competition from television and from everyone else, but why, when we have a property right which the statute says is the exclusive, are we compelled to suffer that competition from our own material, taken without our authority and against our consent.
Then the third of the criteria, the purpose and object of selections made.
If there is any unanimity on the doctrine of fair use both here and in England, it is on this proposition that the doctrine, no matter how liberal, does not justify one person simply for the purpose of earning a profit for himself, saving himself time, expense, and money by appropriating a substantial part of another's copyright material.
Now if the profit motive is secondary in copyright as Mr. Carman has suggested, it occupies even a more subordinate position with respect to the second user who takes our material.
And yet for what purpose was this material taken?
And you cannot differentiate among Benny, CVS, or American in that respect because they were all engaged in the same enterprise and that enterprise was to advertise Lucky Strike cigarettes and that is all there is to it.
They need this entertainment material in order to attract an audience, because the commercial is no good unless somebody is listening to it and they are not going to get an audience by just telling them that the announcer is going to come on and tell them what a good smoke Lucky Strike is.
The whole purpose of this entertainment material, a substantial part of which concededly they took from our copyright picture was taken in order to attract an audience so that Jack Benny and Don Wilson could tell that audience to smoke Lucky Strike cigarettes.
Now that is a kind of a purpose that no fair use decision has ever, has ever countenanced.
Nor is it the kind of a purpose which would countenance an ostensible criticism or review assuming that Eautolight ten years after the event is a review of Gaslight.
There is a case in England that I think is pretty good on that subject Campbell against Scott.
The defendant there had published what purported to be a critical review of the poetry and poets of the 19th Century.
What it consisted of was a few pages of an introductory survey of 19th Century poetry and then a reprint of a great deal of poetry that had been written by 19th Century poets.
It was in effect an anthology of poetry, although put out under the guise of being a critical assay.
Well, Campbell objected.
He did not want his poetry published without his permission, and what is, I suppose just as important, without getting compensated for it.
And the defense, as you might expect, was that this was just criticism, review, got to promote through the arts of sciences only tried one of the little gambit that Dr. Baxter introduced into his testimony here too that it was a compliment to the plaintiff.
Dr. Baxter testified it is compliment to a person to be parodied, because you generally did not parody an unsuccessful work or an unsuccessful author.
Well, in Campbell against Scott the defendant said that they considered they would have done Campbell a great injustice had they failed to take notice of him as one of the celebrated poets of the 19th Century and had reprinted samples of his work.
Notwithstanding the English Court had no difficulty in determining that that was not fair use, but infringement of copyright and that the critical flavor to the book was merely a pretext or a guise.
Justice Hugo L. Black: Is that the test you think we have to value?
Mr. Herman F. Selvin: Your Honor, the --
Justice Hugo L. Black: Whether or not this is a pretext rather than a parody?
Mr. Herman F. Selvin: Well, I think if it is sought to be defended as criticism or reviewed I think you have to ascertain whether it is in good faith intended as such or whether it is merely a cover for appropriating oneself for one zone profit to copyright material of another.
At any rate, Mr. Justice Black that was the approach the English cases have taken to that problem and the cases are cited in our brief.
Campbell against Scott is one of them.
There are several others.
And they make it quite clear that to be defensable as criticism it must be bona fide to criticism and not merely a patchwork job or scissors and paste-pot job where the critical flavor is introduced merely for the purpose of circumventing the copyright.
Justice John M. Harlan: Does that mean that in a case where you find that there hasn't been a substantial copied?
Mr. Herman F. Selvin: Well, --
Justice John M. Harlan: Still you strike it down if you find that you hold it is infringement if you find that there is not a bona fide use?
Mr. Herman F. Selvin: No, unless along with that there has been a substantial copy.
Now the only purpose or the only effect of criticism or review or parody for that matter, as I see it, is that it introduces some elements of flexibility into the standard of substantiality.
In a bona fide or a bona fide review where there is no attempt simply to get the free ride on the other person's (Inaudible), well obviously, has presented for a different purpose.
You can, I think, very well indulge a more liberal factual test of how much is substantial.
And you can then, in now those cases, as court do, in these three tests of which Mr. Judge Story referred, they do not all have to go inside, and you find a greater or lesser emphasis on one or the other of them as the facts of the case seem to be appeal to the particular court.
But when the purpose seems to be on honest one, when there is no attempt to get the free ride, as I say, courts tend to look more closely at the extent of injury if any to the plaintiff before a determination of substantiality.
Justice Felix Frankfurter: Mr. Selvin, may I ask you this question I have asked of Mr. Carman.
I suppose a voluminous single body of writers in English is the writing of critics, critical literature, what I want to know is whether (Inaudible) literary criticism, say by, Matthew Arnold, by (Inaudible), by McCarthy the voluminous writer, critical writers and by reviewers, people who dealt fiercely with the literature of their day, whether there has turned up a case in which one of these severe devastating critics in order to make his point about the flatulence or the emptiness or the undesirability in whatever form and desirability may express it there, whether such a critics in order to prove his point quoted elaborate from the author criticized and to other such situation has turned up in the court in your investigation.
Mr. Herman F. Selvin: Well, I think there is a comparable case in England in which the use was held to be fair.
Justice Felix Frankfurter: You just gave the Campbell case and that is different, because there was an excuse, but I am trying to think of honest and these moral questions seem to me to complicate it.
A critic who wanted to do really damn a work and then prove his object by quoting just blocks of it.
Mr. Herman F. Selvin: Well, the case -- I think it is Scott against Sanford, but I am not sure in any event the case is in my brief, but that was a case where there was a criticism of a play and quite of bit of a dialog and the action of the play was copied into the critique and the English court held that to be a fair use in circumstances pointing out that it was not the whole play.
It did not tell the connected story of the play, but there were excerpts taken to illustrate the particular points made.
Justice Felix Frankfurter: It is the question of just finding out whether there are six inches of it or one ounce of the weight of the book as I gather from what you say.
It is a question of taking it to make a point, but I wonder how much you may take to make a point?
This is pretty one-side, whether this was to make a point or make to make something else?
Mr. Herman F. Selvin: You cannot -- I do not know that you can lay down any rule of thumb.
Now in Smith against Shadow, which is another English case there is the opposite of that where a great deal was taken to make a point and the English court held it was not fair use and that was the work called Thackeriana where the author set out to prove that Thackeray's novels were autobiographical.
That was his thesis and in order to prove his point he copied quite a bit of Thackeray, enough so that the English court, liberal as it has been in the criticism cases, said that he had exceeded the bounds of fair use.
Justice Felix Frankfurter: What is that case?
Mr. Herman F. Selvin: That is Smith against Shadow.
That is also cited in our brief.
That is the Thackariana case.
That incidentally is one of the cases which quoted Mr. Judge Story's passage in Scott against Sanford, there is another one of the cases in England which is quoted there.
Justice John M. Harlan: Is that the one you were referring to just before?
Mr. Herman F. Selvin: Smith against --
Justice John M. Harlan: No, the first case you gave an answer to Justice Frankfurter.
You have given us two opposite sides of the coin, what is this case?
Mr. Herman F. Selvin: No, Smith against Shadow, the second of the two was the one that quoted Mr. Justice Story.
Justice John M. Harlan: What was the one before that?
Mr. Herman F. Selvin: Well, that was Campbell against Scott.
Justice John M. Harlan: Thank you.
Mr. Herman F. Selvin: That was the (Inaudible) poet's case.
Now I would like, if I may, try to say it in two or three sentences what I have been trying to say for the nearly hour that I have than up here.
Since it is conceded that the kind of appropriation was made here would in the ordinary case bringing an infringement of copyright, it must follow that that is true here unless some special rule is to be derived or devised for parody.
That it should have a special rule that it is argued arises from the necessities of the art.
We say the necessities are far from proved.
In fact, are disproved in this case, and in any event that is a question of policy for Congress, not a judiciary question.
And whether the fair use is merely the other side of the coin of substantial taking or not, whether it is the kind of a doctrine to which Mr. Carman referred, the criteria which test its application to any given set of fact require the conclusion, which was reached here by the courts below.
For those reasons we think the judgment below be affirmed --
Justice John M. Harlan: Could I ask you a question before you sit down?
Assuming we should disagreed with you, what about the question is to where the case should go back, would you think that there are issues of fact then would have to be determined or whether the case can be disposed off here?
Mr. Herman F. Selvin: I know of no issues of fact to be determined.
The finding of substantiality is not challenged.
If that isn't enough I do not know of any additional fact.
I must confess, I cannot follow --
Justice John M. Harlan: Well, you follow substantiality or fair use that the -- that is too strict a standard of the substantiality had been applied, would there then questions of fact, because there ought to be – the case ought to be sent back for --
Mr. Herman F. Selvin: Well, there are no questions of fact that could not be resolved in my opinion by simply a comparison of two works.
Justice John M. Harlan: The films are up here, I think.
Chief Justice Earl Warren: Mr. Carman.
Rebuttal of W. B. Carman
Mr. W. B. Carman: May I simply say to the Court, I have nothing further to add except to say that Mr. Justice Frankfurter referring to the case of Bell against White case in Eight English Report New Series of 141, that is as close as I can come for asking the question which Mr. Justice Frankfurter put up.
In that case a quarter of the article was used, quarter of the -- one-fourth of the work was used in a criticism.
The critic had quoted one-fourth of the work and then commented on it, and in that case the court held that was a fair use.
Justice Felix Frankfurter: I could be very much surprised if these questions as deceptible and as arithmetic (Inaudible) measurement.