https://read.amazon.com/?

asin=B07NS9CF7B&language=en-US

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P. Sirr

both

Jenna,

she

The "Copyright and Fair the c

use" Problem the c
the s
The s
anthe
Wi
song's

where
Note: To help you keep the parties straight,we have named White
the Plaintiff"Page" because both words start with the letter

and p

Page 385 of 418 •

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we have named
P. Similarly, the Defendant "Dash" because
both words start with the letter D.

Jenna Page is a rock musician who is most famous for a song

she wrote and recorded,"Red, White, and Blue."Page holds

the copyright to the song's lyrics.The song's refrain repeats

the colors of the flag, "Red, White, and Blue," and then makew

the song's true point: "Red, White, and Through with Blue."

of the United States and has become

The song is critical an

anthem among those in the anti-establishment movement.

Within a few years of the song becoming popular, the

song's refrain also became a popular chant at patriotic rallies,

where audience members would dance and sing,"Red,

White, and Blue; Red, White, and Blue" to the song's tune.
:er
The lyricsof Page'ssong complain of economic inequality
and politicians'
failureto remedy the country's problems.

385 •

ENG
US
https://read.amazon.com/?asin=B07NS9CF7B&languagesen•US 'lit

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The song received extensive radio play when it was first

released and stillenjoys a fair amount of notoriety.

Page just discovered that Billy Dash, a relatively unknown

young singer,has produced and is successfullymarketing

a rock song entitled "Red, White, and Blue Through
and Through." Dash's patrioticsong celebrates America's
freedom and traditions.
The music appears to be identical to the original, but the

words are different. Following is a comparison of the lyrics

of the two songs. Dash's song champions pride in America
without the critical
element Page'ssong emphasizes. Dash's
song parallels the lyrics and structure pf Fake's song,
Page wants to know how té Dasii from using
her lyrics.(The copyright on the
somposition, as
opposed to the lyrics, is held jointly n)embers of Page's
band; we will concentrate only on the
'lyrics,
not on the
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AL WRITING (EXAMPLES & EXPLANATIONS SERIES)

music.) Dash is likely to claim his use of Page's song is

protected as "fairuse."

Assume that a legal challenge would be filed in the

ng Northern District of California.

"Red,White, and Blue"by "Red, White, and Blue

Jenna Page Throughand Thpugh" by
Billy Dash
ics— The bankers fought for their The heroes fou fitfor our land

of cash of the free

ica
*And the elites added to their And they gave a lot,so we can
h's
stash be
They got theirfancy gems and They pa egt e 'ay for us free,
ng
their private jets prou
as
There's no work to be had and This ptr reat, the
no safety nets traditions w save

gem 8
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Red, white, and blue Red,white, and blue

Red,white, and blue Red,white, and blue
Red, white, and through with Red, white, and blue through

being blue and through

We gothouses abandoned, We got flags a-wavin', America

livestorn apart the best

And we got mamas on food And we got proud mamas
-stamps, babies in the cart cheering, babies held to chest
Factoriesclosed and laughs Fireworks, apple pie, stripes
turn to sobs and stars,
—There'shungry mouths, but no There's love ofcountry, 'rock n

jobs,nojobs roll, fast cars

—Red,white, and blue Red, white, and blue
Red,white, and blue Red, white, and blue
Red,white, and through with Red, whice; and blue through
being blue and through

page -386ofZ1
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We were told there was hope, We were raised with hope and
to vote, just vote with pride
And the prospect for change, it And from what's right,we
grows more remote never, we never hide

ca They're lining their pockets,a They're shining, the colors of

capital of gold our crew

And they're fighting like And they'refighting,
showing
children, while our future is what we know istrue
sold

Red,white, and blue Red,white, and blue

n' Red,white, and blue Red,white, and blue
Red,white, and through with 'Red,white, and blue through
being blue and through

Page of 418 •

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EXAMPLES & EXP A IONS FOR LEGAL WRITII

The following statutes and cases may apply to this

problem. Cases have been altered for convenience
brevity.

17 U.S.C.S 106. Exclusive rights in copyrighted works

Subject to sections 107 through 122 the ownerof?
copyright under this titlehas the exclusive rights to do and
to authorize any of the following:

(1) —toreproduce the copyrighted 'Ork in copies or

phonorecords;
(2)
(3) to distribute copies or phoofrecords of the
copyrighted work to the public 'by other transfer
of ownership, or by rental, lease, or lending;
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AL WRITING (EXAMPLES & EXPLANATIONS SERIES)

this (4) in the case of literary, musical, dramatic,

and and choreographicworks, pantomimes, and motion
pictures and other audiovisual works, to perform the
copyrighted work publicly•

of 17 U.S.C.S 107. Limitations on exclusive rights: Fair use

and Notwithstanding the provisions of section 106 the

fair use of a copyrighted work, including such use by

reproduction in copies or phonorecords or by any other
s or means specified by that section, for purposes such as
criticism,comment, news reporting,teaching (including
multiple copies for classroom use), scholarship, or research,
the is not an infringement of copyright. In determining whether
sfer the use made of a work in any particular case is a fair use the
factors to be considered shall include:

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EXAMPLES & EXPLANATIONS FOR LEGAL WRITI

(1) the purpose and character of the use, including

whether such use is of a commercial nature or is foe
nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion usedin

relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential marketfor
—value of the copyrighted work

Campbell v.Acuff-Rose Music, Inc.,510 U.S. 569 (1994)

An Orbison and William Dees wrote a rock

ballad called "Oh, Pretty Woman" and assigned 'theirrights
to Acuff-Rose Music. Campbell and his popular rap music
group, 2 Live Crew, wrote a rap song in 1989 entitled "Pretty

Woman." After nearly a quarter of a million copies of the rap

recording had been sold,Acuff-Rose Music sued to enforce

Page
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ing their copyright. 2 Live Crew claims their commercial parody

for is a "fairuse" within the meaning of the Copyright Act, 17

U.S.C.S 107. 2 Live Crew does not dispute that the song
would infringe on the copyright absent a finding of fair use

The fair use doctrine "permits [and requires] courts-to

avoid rigid application of the copyright statute whenßn
or occasion, it would stiflethe very creativity which that law
—Eis designed to foster." Stewart v. Abend, 495 U.S. 207, 236
(1990) (internal quotation marks and citation omitted).
-There are no bright-line rules, and the statute calls for —
ock case-by-case analysis.Similarly,nor may the four statutory
;hts
factors be treated in isolation, one from another. The results
1Sic must be weighed together, in light of the purposes of
copyright.
rap
yrce

'age 337

ENG
Giantllpi!Özelle$ir (JcretsizOptmaii WindoWsMediÅ IE'denAl Zargan ingili

EXAMPLES & EXPLAÅA!IONS FOR LEGAL WRI

The firstfactor, "the purpose and character of the use,

including whether such use is of a commercial nature or

-is for nonprofit educational purposes/' considers whether

the use is for criticism, comment, or the like. The question

—is whether the new work "merely supersede[s]the objects"

of the original creation, or instead "adds something ne
with a further purpose or different character, altering th

-efirstwith new expression, meaning, or,message; it

—otherwords, whether and to what extent the new work is
-
—transformative.' " (Citations omitted.) Such transformative

—useismotabsolutely necessary for a finding of fair user but

the goal of copyright, to promote science and the arts, is

generally furthered by the creation o! works.
Parody has an obvious claim to transformative value. It
can provide social benefit, by shedding light on an earlier
work, and;in the process,creating a new one. Parody may

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or may not be fair use under S 107; parody, like any other

use, has to work its way through the relevant factor, and be—

judged case by case.

—Parody is transformative when it has "critical
bearinr
-onthe substance or style of the original composition.'
The threshold question is whether a parodic character ma
reasonably be perceived.

2 Live Crew's song is transformative.The song could

reasonably be perceived as commenting on the original or
criticizingit.2 Live Crew juxtaposes the romÅntic musings
of a man whose fantasyco true (vyith a/ostitute), on
the one hand, with degrad
sex, and a sigh of relief from phteypal it onthe
9thert 'The laterwords cal)be taken a? a Comment on the
p#ivete of, of gn ear ler c! y, a a yejectionof
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EXAMPLES & EXPLANATIONS FOR LEGAL WF

its sentiment that ignores the ugliness of street lifeand the

debasementthat it signifies.
Furthermore, contrary to the court of appeals' rulingr
which held that the commercial or nonprofit educational
purpose of a work precluded a fair use finding, this isonlE
one element of the firstfactor.Section 107(1) speaks
broader investigationinto "purpose and character."

2
The second statutory factor, "the nature
copyrighted work," is generally disregarded in parody cases.
It is not much help in this case, or in any parody caser since
parodies almost invariably copy publicly known, expressive
works.
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The third factor asks whether "the amount and

—substantiality of the portion used in relation
copyrighted work as a whole" isreasonable in relationtotWZE

purpose of the copying. The persuasiveness of a parodist'

•ustification for the particular copying is significant, forwe—

- recogmze that the extent of permissible copying varies withæ

the purpose and character of the use.

When parody takes aim at a particular original work, the —

parodymust be able to "conjure up" at least enough of thaü

originalto make the objectof its critical wit recognizable.

Hence, using some of the original's distinctiveor
memorable features is common, as. audience will
recognize them. Once enough has been taken to assure
identificationrhow much more is reasonablewill depend
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purpose and
on the extent to which the song's overriding
contrast, the
character is to parody the original or, in
serve as a market substitute
likelihood that the parody may

for the original.But using some characteristicfeatures

cannot be avoided.
—
Here, 2 Live Crew copied the characteristicopeningbass
-
.xiff(or musical phrase) of the original and the words

of the firstline copy the Orbison lyrics,arguably the

"heart" of the original.But the question of fairness asks
what else the parodist did besides go to the heart of the
original.2 LiveCrew copied the bass riff and repeated vitr
but also produced otherwise distinctive sounds, interposing
"scraper" noise, overlaying the music with solos in different
keys, and altering the drum beat, changing the structure
of the original song. The parody is not so insubstantial,
Jilizce-Tü.„ Kisayol Cambridge Diction... Case Comment: Stou Akademik Proje Ha...

ITING (EXAMPLES & EXPLANATIONS SERI S)

as compared to the copying, that the third factor must be

resolved as a matter of law against the parodists.

The fourth factor, "the effect of the use upon the potential

market for or value of the copyrighted work," requires courts—

m to consider not only the extent of market harm caused bythe—

particular actions of the alleged infringer,but also '(whether—

unrestricted and widespread conduct of the sort engaged in

by the defendant .. would result in a substantially adverse
impact on the potential market" for the original. (Citations
omitted.)
As to parody, it is more likely that the new work will not
affect the market for the original because the parody and the
original usually serve different market functions. We do not,
 Kindle

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EXAMPLES & EXP A IONS FOR LEGAL WRI

—of course, suggest that a parody may not harm the market at
all,but when a lethal parody, like a scathing theater review,

killsdemand for the original,it does not produce a harm

cognizable under the Copyright Act.

Since fair use is an -affrmative defense, however, 2 Live

Crew should have addressed the effecton the market forrap
derivatives, not just demonstrated that there was no likely
" effecton the market for the original.Affdavits addressing
—the likelyeffectof 2 Live Crew's parodic rap song on the—
market for a non-parody, rap version of "Ohj Pretty Woman"

ashould also have been submitted. This evidentiary hole can

be plugged on remand.
In conclusion, it was error for the of Appeals to
conclude that the commercial nature 2 LiveCrew'sparody
of "Oh, Pretty Woman" rendered itpresuynptiyely unfair. The

court also erred in holding that 2 Live Crew had necessarily

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VRITING(EXAMPLES & EXPLANATIONS SERIES

copied excessivelyfrom the Orbison original,considering

the parodic purpose of the use. We therefore reverse the—
judgment of the Court of Appeals and remand the case for?
further proceedings consistent with this opiniom

AppendixA to Appendix B to
Opinion of the Court Opinion to the Court

"Oh, Pretty Woman" by Roy "Pretty

Woman" asrecorde&
Orbison and William Dees — by 2 Live Crew
Pretty Woman, walking down Pretty woman walkin' down
the street the street

Pretty woman girl you look so

sweet
Pretty Woman, the kind I like Pretty woman you bring me
to meet down to that knee

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EXAMÅÉs & APIANÅTIONS FOR LEG

Pretty Woman, I don't believe Prettywoman you make me

you, wanna beg please

—you'renot the truth Oh, pretty woman

one could look as good as Bighairywoman you need to

shavethat stuff
Mercy Big hairy woman you knowV@_
bet it is tough
Woman, won'tyou Big hairy woman allthat harrite

ain't legit
etty Woman, I couldn't help Cause you 100klike Cousin Itw

-EPretty Woman, that you look Bighair wo an

—lovelv
as can be Bald'hfad+ woman girl your
hair won't gßyq
Are you lonely just like me? Baldheaded woman yougotæ
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teeny weeny afro

Pretty Woman, stop a while Bald headed woman you know

your hair could look nice
Pretty Woman, talk a while
Pretty Woman give your smile Bald headed woman first
yo
to me got to roll it with

Pretty Woman, yeah, yeah, rice

—yeah
•retty Woman, lookmy way Bald headed woman here,let—
me get this hunk of biz for ya
Pretty Woman, say you'll stay Ya know what I'm saying you
with me look better than
'Cause I need you, I'll treat you rice a Vonl
right
Come to me baby, Be mine Oh bald headed woman
tonight
 Ill

TIONS FOR LEG

PrettyWoman, don't walk on Big hairy woman come on in

-ÉPrettyWoman, don'tmake me And don jt forgetyour baW

headedfriend
-ettyWoman, don'twalk Hey pretty woman letthebo

Jump in
Afthat's the way itmust be, Two timiniwoman girl
know you ain'tright

%IguessN11go on home, it's late Two timin'womanyou isout—

with my boy lastnight

EThere'11 be tomorrow night;
but wait!
What do I see? woman that takesa
Ioaå my mind
Is she walking back to me? Twotimini womannowlknowe

- sage a
 ictio ea rnÅr4tk +kademikprojf Ha.

qE*AknpLÉs & PXPLANAT NS ERE

Cheba y ain'!rnine

Yeah, she'swalkingback tome! Oh, two timin'woman

Oh, PrettyWoman Oh prettywoman

Dr. Seuss Enters., L.P. v. Penguin Books USA, Inc., 109 F.3d
1394 (9th cir.1997)
We must decide whether a poetic account of theor
Simpson double murder trialentitledThe Cat NOTin%E
Hat! A Parody by DnJuice, presents a sufficientshowing off

copynght and trademark infringement of the well-known

The Cat in the Hat by Dr. Seuss.
Under the pseudonym "Dr. Seuss," at least 47 books were
published over 60 years, with approximately 35 million
copies currently in print worldwide. The books use simple,

ENG
lantllar!ötplle$ir Ücretli ot åll i do s di zargar

Al N FOR LEGALM

-rhyming, repetitivelanguage, accompanied by characters

recognizableby and appealing to children.
Cat in the Hat involves a mischievous buuwe1V
_rneaning character, the Cat, who continues to be amongthe
•nost famous and well recognized of the Dr. Seuss creations—
enheCat is almost alwaysdepictedwith his distinctive
•erUrfChed and somewhatshabbyred and white stovepipe=
AyaEAlmost40 years later,Penguin Books published The Can
AVOTiwthe Hat! satirizingthe O.J.Simpson double murder
tnalßeusssued for copyright infringement, and .Penguin
fair use for a parody. The court therefore
applied the four factors stated in 1 Copyright Act.
 enta to, e Akademik Proje Ha...

[TING (EXAMPLES & EXPLAN'ÅTIONS IS

Under the firstfactor,'the purpose and character of the—

use,including whether such use is of a commercial nature—

—or•s for nonprofit educational purposes," the inquiry is
The Cat NOT in the Hat! merely supersedes theDr,æ
3Seuss creations,or whether and to what extent the new work?
M
31s transformative," i.e.,
altering The Cat in the Hat withnew=

æ=expression, meaning or message Looking at The CatNO

AntheHat! itself,
the firsttwo pages present a view
AngeleS/with particularemphasis on the connection with?
—Brentwood, given the depiction of the news Camera
The story begins as follows:

A happy town
Inside L.A,
Where rich folks playl
The day away.
 IEIåen Zarga

But under the moon

The 12th ofJune.
Two victims flail

Assault! Assail!

Somebody will go to jail!

Who will it be?
Oh my! Oh me!

±äThe third page reads:"One Knife?(Two Knife?/ReåKnifeæ

=DeadAVife." This stanza no doubt mimes the firstpoem
•nor>Seuss' one Fish Two Fish Red Fish Blue Fish:
fish/tw06sh/reåfish/blue fish. Black fish/blue fish/old fish
-new fish.'Throughout the book, thesg Stanzas and the
illustrationssimply retellthe Simpson i
!ale.
61!hough The Cat
NOTin the Hat! does broadly mimic Dr, $euss i characteristic
style, it does not hold his style up to ridicule.The book
merely uses the Cat's stovepipe hat, the narrator ("Dr. Juice"),

892 ot41G
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ITING (EXAMPLES & EXPLANATIONS SERIéS)

and the title (The Cat NOT in the Hat!) "to get attention" or
maybe even "to avoid the drudgery in working up somethin
fresh."Campbell, 510 U.S. at 580. Because there is no efforü
to create a transformative work with "new expression
meaning, or message," the infringing work's commercial use
further cuts against the fair use defense. Idi at 5 79.

2
While the second statutory factor, "the nature of the*
copyrightedwork,"has not been terribly significantin the
overallfair use balancing, the creativity, imagination and
originalityembodied in The Cat in the Hat and its central
character tilts the scale against fair use,

3
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É M S & EXPLANATIONS FOR LEGAL

The third factor,"the amount and substantiality of the

portion used in relation to the copyrighted work as a whole,"

_raises_the question of substantial similarity. "The Cat in the

A-lat?Eisthe centralcharacter.We have no doubt that thE
Cat'simage is the highly expressive core of Dr. Seuss Y wore

—Penguin Books insists that The Cat in the Hat is the vehicle
fortheir parody because of the similaritiesbetweenthetww
estories•e
Nicole Brown and Ronald Goldman were surpnsed?
byna XI
Catt' (O.J.Simpson) who committed
acts contrary
temoral and legalauthority.The prosecution of Simpson
created a horrible mess, in which the defense team seemed
to impose "tricks"on an unwilling public, resulting in a
verdict that a substantial segment of the public regarded as
astonishing. Just as The Cat in the Hat ends
with the moral
dilemma of whether the children should tell their mother

sage 23é2di 418

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IRITING (EXAMPLES & EXPLÅÅATIOÅÅ sÅßl€s)

about their visitor that afternoon, The Cat NOT in the Hat!

ends with a similar moral dilemma:

JUICE

JUSTICE
Hmm . take the word JUICE.
Then add sn
Between the U and I,you See.

And then you have JUSTICE.

Or maybe you don't.
Maybe we will.
And maybe we won't,
'Cause if the Cat didn't do it?
Then who? Then who?
Was it him?
Was it her?
 i W zaigé

ONS FOR LEGAL

Was itme?
Was it you?
Oh me! Oh my!
Oh my! Oh me!
The murderer isrunning free.

¯Weagree with the districtcourt that Penguin'sfawuse

ucompletely
unconvincing."

of the use
potential market fornrvalue of the copyrighted work&The
good will and reputation associated with Dr. Seuss' workäe
is substantial. Because,on the facts presented, Penguins
use of The Cat in the Hat originalwas non-transformative—
and admittedly commercial, we conclude
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RITING (EXAMPLES & EXPLANATIONS SERIES)

substitutionis at leastmore certain,and market harm may

be more readily inferred. Especiallybecause the market was
children, who could easily mistake the copy for the original,
a negative effect is likely.

Since fair use is an affrmative defense, Penguin must

present favorable evidence about relevant markets. Given
their failure to submit evidence on this point, Penguin is not

entitled to relief.
Affrmed.

Mattel Inc. v. WalkingMountain Prods., 353 F.3d 792 (9th Cir.

2003)
Mattel asks us to prohibit artist Thomas Forsythe
from producing and selling photographs containing
Mattel's "Barbie" doll. Forsythe, aka "Walking Mountain
Productions," is a photographer who produces photographs

us 12/26