How could JibJab’s use of This Land Is Your Land be anything but fair?, some have asked. After all, probably the most important aspect of the fair use analysis is whether the new work harms the market for the old work (for instance, by competing with it). Surely there’s no such effect here, when the two works (the JibJab cartoon with a song that’s based on This Land Is Your Land, and the original song itself) are so different.
Well, not quite. It’s true that the Court made clear that even “satire” rather than parody might still be fair use, if there’s very little effect on the market:
A parody that more loosely targets an original than the parody presented here may still be sufficiently aimed at an original work to come within our analysis of parody. If a parody whose wide dissemination in the market runs the risk of serving as a substitute for the original or licensed derivatives . . ., it is more incumbent on one claiming fair use to establish the extent of transformation and the parody’s critical relationship to the original. By contrast, when there is little or no risk of market substitution, whether because of the large extent of transformation of the earlier work, the new work’s minimal distribution in the market, the small extent to which it borrows from an original, or other factors, taking parodic aim at an original is a less critical factor in the analysis, and looser forms of parody may be found to be fair use, as may satire with lesser justification for the borrowing than would otherwise be required.
As you can see, this mostly focused on works that do comment on the original, though only loosely; but it does say (as other Court decisions also suggest) that pure satire, with no commentary on the original, may be fair use.
But the effect on the market includes an effect on the market for licensed derivatives — which means one possible “loss” for the plaintiff is the loss of the opportunity to make money by licensing the song to such uses:
The fourth fair use factor is “the effect of the use upon the potential market for or value of the copyrighted work.” It requires courts to consider not only the extent of market harm caused by the 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. The enquiry “must take account not only of harm to the original, but also of harm to the market for derivative works.”
(The copyright owner’s public statements suggests that it would refuse to license such works, because of its own esthetic or business judgment, but my sense is that the analysis would look more to the effect on the market for works such as the plaintiff’s, rather than on the idiosyncratic preferences of this particular plaintiff.)
Consider an analogy: I make a movie based on your book. The movie may not hurt the market for your book — in fact, it might even increase sales of your book, since it will be free publicity for the book. But this doesn’t mean that I can just make the movie without getting a license, on the theory that my use is fair (it’s transformative, since it’s not a literal copy, and it doesn’t hurt your book sales).
Rather, my use is seen as affecting your market to sell movie rights (the “market for derivative works”). If I make a movie based on your book for free, you aren’t getting payment for the movie rights. That’s the “loss” to you (though loss measured relative to what you’d get if you sold movie rights, not out-of-pcoket loss).
Likewise, a song owner’s property right includes the right not just to sell copies of the song, but to license the song in soundtracks, license the song in cartoons, and even license the song in humorous cartoons. It doesn’t include the right to license the song in cartoons that poke fun at the song:
The market for potential derivative uses includes only those that creators of original works would in general develop or license others to develop. Yet the unlikelihood that creators of imaginative works will license critical reviews or lampoons of their own productions removes such uses from the very notion of a potential licensing market. . . . Thus, to the extent that the opinion below may be read to have considered harm to the market for parodies of “Oh, Pretty Woman,” the court erred.
But given that, to my knowledge, there is a market for selling licenses for humorous recastings of a song (I’m told, for instance, that Weird Al Yankovic pays licenses for many of the songs that he uses), and that such a market for recastings that don’t poke fun at the original is at least not unlikely, the Court likely would find an effect on the market: JibJab’s s use, if it became widespread (and, again, if it’s satire rather than parody), would strip copyright owners of their marketable derivate work rights. (It might also interfere with owners’ rights to license nonhumorous derivative works, to the extent that the public would come to associate the song with the humorous version, so that producers of other derivative works would thus not want to use the song any more.)
Some people criticize such arguments as “circular” or “bootstrapping.” But whatever one may call them, they are certainly well accepted by courts as to derivative uses such as movies based on books; and Campbell suggests that they would equally apply to humorous works based on serious ones, so long as the humorous work doesn’t poke fun at the original. Like it or not, that’s what the law seems to be (though there’s enough uncertainty here that I have to keep stressing the “seems”).
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