Tabberone is pronounced tab ber won
not tay ber own
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Tabberone is pronounced tab ber won |
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| This information is taken directly from the court opinion. It is not taken out of context nor is it altered. |
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From Ty v. Publications International, 292 F.3d 512 (7th 2002)
The distinction between complementary and substitutional copying (sometimes--though as it seems to us, confusingly-- said to be between "transformative" and "superseding" copies, see, e.g., Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994)) is illustrated not only by the difference between quotations from a book in a book review and the book itself, Marion B. Stewart, "Calculating Economic Damages in Intellectual Property Disputes: The Role of Market Definition," 77 J. Patent & Trademark Office Society 321, 332 (1995), but also by the difference between parody (fair use) and burlesque (often not fair use). A parody, which is a form of criticism (good-natured or otherwise), is not intended as a substitute for the work parodied. But it must quote enough of that work to make the parody recognizable as such, and that amount of quotation is deemed fair use. Campbell v. Acuff-Rose Music, Inc., supra, 510 U.S. at 579, 580-81 and n. 14, 588; Suntrust Bank v. Houghton Mifflin Co., supra, 268 F.3d at 1271; Leibovitz v. Paramount Pictures Corp., 137 F.3d 109, 114 (2d Cir. 1998); Dr. Seuss Enterprises, L.P. v. Penguin Books USA, Inc., 109 F.3d 1394, 1400 (9th Cir. 1997); 4 Nimmer & Nimmer, supra, sec. 13.05[C], pp. 13-203 to 13-218. A burlesque, however, is often just a humorous substitute for the original and so cuts into the demand for it: one might choose to see Abbott and Costello Meet Frankenstein or Young Frankenstein rather than Frankenstein, or Love at First Bite rather than Dracula, or even Clueless rather than Emma. Burlesques of that character, catering to the humor-loving segment of the original's market, are not fair use. Benny v. Loew's Inc., 239 F.2d 532, 536-37 (9th Cir. 1956), aff'd by an equally divided Court under the name Columbia Broadcasting System, Inc. v. Loew's, Inc., 356 U.S. 43 (1958) (per curiam); see 4 Nimmer & Nimmer, supra, sec. 13.05[B][1], pp. 13-194 to 13-195, sec. 13.05[C]; cf. Campbell v. Acuff-Rose Music, Inc., supra, 510 U.S. at 580-81 & n. 14, 591. The distinction is implicit in the proposition, affirmed in all the cases we have cited, that the parodist must not take more from the original than is necessary to conjure it up and thus make clear to the audience that his work is indeed a parody. If he takes much more, he may begin to attract the audience away from the work parodied, not by convincing them that the work is no good (for that is not a substitution effect) but by providing a substitute for it. |
