Wednesday, March 18, 2009

Fox wins fair use fight over 'Family Guy' song

I always chuckle when I see the major movie and TV studios and networks depicted as copyright absolutists, or opponents or even enemies of fair use.

That portrayal is false. The reality is much more complicated; the fact is that the studios rely on fair use countless times every day, and routinely fight for it in court.

The latest example is a case brought by music publisher Bourne Co., which owns the composition When You Wish upon a Star, against Twentieth Century Fox Film Corp. (my former employer), which owns the copyright to the series Family Guy. Family Guy used a modified version of the tune and set it to new lyrics for a song called I need a Jew. Fox (and the other defendants) moved for summary judgment, arguing fair use. And on March 16, federal Judge Deborah Batts of the Southern District of New York granted the motion, agreeing that the use of the song parodied both the "childish and simplistic" message of the original, as well as its association with Walt Disney, an alleged anti-Semite.

Congrats to Fox. And remember next time you watch Family Guy, or The Simpsons, or The Daily Show, or The Colbert Report, or just about any news broadcast: the studios and networks believe in fair use, too.


  1. "Congrats to Fox. And remember next time you watch Family Guy, or The Simpsons, or The Daily Show, or The Colbert Report, or just about any news broadcast: the studios and networks believe in fair use, too "

    They do in very limited ways, though. Disney, for instance, has historically been a big fan of leveraging the public domain for stories but an even bigger opponent of ever letting their own material ever fall into that same domain of available creativity for others. Granted, this may make business sense for Disney, but the same is true for the fair use argument. The studios are only in favor of "fair use" when such is in their favor. In the case of fox, they were specifically leveraging the parody exemption, which has generally been a stronger and clearer exemption than some other forms of fair use. But can you say the studios and record labels never fight parody exemptions when the material is theirs? I think not.

    Anyway, back in the real world, it is neigh impossible to get errors and omissions insurance based on "fair use" rather than written clearance.


  2. "The studios are only in favor of 'fair use' when such is in their favor."

    True. Studios are part of giant corporations, and (unashamedly) their primary goal is to make money. When they think fighting for fair use will help their bottom line, they'll fight for it. When they think an expansive view of fair use harms their interests, they'll fight against it. My point was simply that, because of their business interests, when it comes to fair use, the studios are sometimes on the "pro" and sometimes on the "anti" side (probably more accurate to say the "narrow" and "expansive" sides).

    As for insurance, that has been a problem in the past, but it's improved significantly in recent years. See here:

  3. "As for insurance, that has been a problem in the past, but it's improved significantly in recent years. See here:"

    Thank you for the link. However, the article is proof that such insurance specifically is still the exception and fair use is a very tenuous right, being both deliberately broad and vague--not the kind of basis most insurers have any reason to support.


  4. Heeb magazine reported on this, and linked to a YouTube clip of the fair use parody of the copyrighted song... However, Fox had the clip removed.

    So much for the Studio's being "pro-fair use."

    And, yes, I realize the issues between the parody claim of fair use and the posting of the fair use parody to YouTube are separate claims with separate merits or lack thereof, but the take down belies the idea that their is a large overlap between Fox's idea of fair use rights for itself and its idea of fair use rights for others.


  5. I can't be absolutely sure what happened here, but I suspect it was either:

    1) the video got blocked by an automatic filter, in which case the poster has the opportunity to dispute the block and explain why the use is fair; or

    2) Fox may have seen the video on its "watch page," unsurrounded by any commentary, and requested its removal.

    Fox has every right to say, "We don't believe it's fair use for someone to simply post clips from 'Family Guy.'" And I don't think that changes just because some *other* people may embed that clip as part of a commentary or other socially beneficial use. (But I don't speak for Fox, and you'll have to ask them what happened here.)

  6. One of the major issues that consumers, fans, mash-up artists, and bloggers face when it comes to IP discussions is just what "fair use" means. I think "fair use" is a fundamental component of any copyright law. Particularly in light of how copyright is framed in the Constitution.

    If the underlying Constitutional reason copyright protections exist is to "secure for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries" for the purpose of promoting "the Progress of Science and useful Arts" there must be a time when those ideas become non-exclusive for the very same reason. Inventions and ideas can be improved and expanded upon only when they are allowed to freely become the foundations for other Inventions and ideas.

    George Lucas fans did an entertainment service, one that I would argue was useful in that entertainment itself is a useful function of Art and one that Lucas seems to agree is useful, when they began producing fan films and fan fiction by the metric ton. Under strict IP monopoly, such entertainments could not be made. The same is true for the Family Guy piece.

    Certainly, corporations are going to fight for the right to use a great deal of IP under fair use if they think it will be profitable. There is nothing on the face wrong with this behavior as efficient economic production benefits society as a whole. They will also fight, to great extremes, to limit the ways in which others can use their IP. Sometimes in order to prevent the genuine theft of property, and other times to control what is being used in a manner that may limit the Progress of the given Art. It is in their interest to fight in both directions.

    Legislation with regard to what constitutes a "limited time" and "fair use" are sadly lacking and it has fallen upon the Courts to provide guidance with regard to fair use. Legislatures have decided on an extremely liberal definition of what constitutes a limited time when it comes to copyright.

    The problem with leaving what constitutes fair use to the Courts is that Courts are monumentally inefficient institutions for the creation of law. They are very good at defining and interpreting law, certainly, but they must address issues on a "case-by-case" basis and are thus much slower than a legislative solution.

    While legislature can never define "fair use" in a way that would be perfectly clear, or remove completely the need for litigation, they can certainly make the concept clearer and have the Courts be used to refine rather than define what is or isn't fair use.

    Another disadvantage of the Court solution is that it can easily be perceived as a solution where the Studios have a distinct advantage. After all, they have more money to litigate and can argue on both sides of any fair use argument longer and with more able representation than most anyone else.

    There are two things that make this less worrisome than many might initially believe. First, the Studios battle one another from time to time, which will benefit society by helping define fair use in ways that will apply to everyone. Second, a dispassionate, independent, and long thinking judiciary will be more likely to come to decisions informed by the merits of a given argument rather than making them based on the amount of money spent advocating any particular argument.

    It often seems that the societal rift between "information wants to be free yo" and "my IP should provide me monetary compensation in perpetuity" is too vast to be overcome. More meaningful legislation by Congress could aid in this as could more reflective -- and less vitriolic -- discussion of the issue by the advocates of various positions.


Comments here are moderated. I appreciate substantive comments, whether or not they agree with what I've written. Stay on topic, and be civil. Comments that contain name-calling, personal attacks, or the like will be rejected. If you want to rant about how evil the RIAA and MPAA are, and how entertainment companies' employees and attorneys are bad people, there are plenty of other places for you to go.