Richard J. Greenstone
The use of obscene parody by publishers, authors and entertainers has increased over the last several years affecting fair use under the Copyright Act of 1976. The obscene parody cases fall into two categories: those that directly use obscenity in parody and those that use the implication of obscenity in parody. Because obscenity and parody are involved with copyright’s most troublesome doctrine, the rules of fair use have been inconsistently applied leading to no predictable application of the fair use defense. This article will examine the various cases and statutes, and propose that the unique problems raised by obscene parody require different interpretation of the rules.
The following paragraphs individually examine three areas– parody, obscenity and fair use–applying each to obscene parody.
Parody, one of the oldest forms of literature, is criticism and ridicule of its target through humorous adaptations from the original work. Often, the parody is remembered far longer than the original work. Examples of parody date back to the ancient Greek Hegemon’s Gigantomachia (The Battle of the Giants). Other practitioners of parody include Cervantes, who wrote Don Quixote, Swinburne and his Heptalogia, and Gilbert a Beckett’s The Comic Blackstone.
Parody must be considered a fair use of the original work. Few authors will provide permission to a parodist, even less so if the parody uses obscenity to criticize the original. Courts recognize parody for “in today’s world of often unrelieved solemnity, copyright law should be hospitable to the humor of parody.” Judicial recognition of parody and qualification as fair use under section 107 is emphasized in Metro Goldwyn Mayer, Inc. v. Showcase Atlanta Co-Op. Prod., Inc., which undercut the humor of parody in favor of its critical aspect.
[I]n order to constitute the type of parody eligible for fair use protection, parody must do more than merely achieve comic effect. It must also make some critical comment or statement about the original work which reflects the original perspective of the parodist–thereby giving the parody social value beyond its entertainment function.
Many courts fail to consider one key question: is the work before the court a parody? The cases tend to concentrate their analysis on the third fair use factor, the amount and substantiality of the portion used in relation to the copyrighted work as a whole. Instead, the court should consider whether the parody “depends for its effect on the similarity to another’s work.” But similarity should not be read to allow verbatim taking. In Walt Disney Prod. v. Mature Pictures Corp. defendant’s verbatim use of plaintiff’s “Mickey Mouse March” resulted in a finding of infringement despite defendant’s fair use defense. The court claimed that defendant did not parody, but merely sought to use the original, going far beyond the “conjure up” minimum.
The parody must also aim its criticism at the original work. Infringement results if the parody falls stray of the mark. In the case of Metro Goldwyn Mayer, Inc. v. Showcase Atlanta Co-Op. Prod., Inc., defendants produced Scarlett Fever, a play parodying Gone With The Wind. The court found that Scarlett Fever was not parody but exploitation and adaptation of plaintiff’s copyrighted work thereby violating plaintiff’s derivative rights under section 106 of the Copyright Act. Scarlett Fever failed to parody the parts of the original work which it copies. Although precision in targeting the parody helps the parody to achieve its goal, it should not become a factor eliminating the less skillful parodist. True parody will not always criticize all aspects of an original work. Its humor, by necessity will overflow into related areas just as the original work relies upon mental associations of locale, characterization and time period. Two courts depart from this rule, looking not to whether the work fails to parody the target, but whether the work is valid satire or parody.
THE OBSCENITY DEFENSE
Although few persons admit to perusing obscenity an inordinate amount of time is spent defining, outlawing and tracking it down. Sections dealing with obscenity permeate postal statutes as well as other areas. Defining obscenity has not always been so clear cut. Some justices know obscenity when they see it and others use the most eloquent language to ward off the stigma of dealing with it to preserve the integrity of the court. But it is the definition of obscenity in Miller v. California that most lawyers recall. Obscenity is determined by the average person, applying contemporary community standards, finding that the work, taken as a whole, appeals to the prurient interests, and whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law and taken as a whole, lacks serious literary, artistic, political or scientific value. Miller’s community standard conflicts with a federal uniform copyright law thereby invalidating copyrighted works considered obscene in some communities and protecting those same works in communities with looser standards, resulting in the fragmentation of uniform national standards of the copyright system. A national obscenity standard for copyright law would solve this problem. Justice Blackmun has indicated that such a national standard may be acceptable if Congress implemented it through legislation.
Traditionally, obscenity was not protected by copyright law. Courts cited the Constitution which grants Congress the power “[t]o promote the Progress of Science and useful Arts”– for the proposition that obscene works did not promote either science or useful arts. The protections of copyright have also been denied to immoral and fraudulent works. On the basis of these theories, infringers of copyright successfully defended actions based on the notion that no property right could inhere in obscene or immoral works, therefore no copyright could protect the work. This defense went unused for several years until reaffirmed by the Attorney General supporting invalidation of copyright by the courts.
In two recent cases, Mitchell Bros. Film Group v. Cinema Adult Theater and Jartech, Inc. v. Clancy the courts expressly found obscenity protected by copyright law. In Mitchell, defendants obtained copies without plaintiffs’ permission of its movie Behind the Green Door, and infringed the copyright issued under the 1909 Copyright Act by exhibiting the film. The court considered the statutory language, “[t]he works for which copyright may be secured under this title shall include all the writings of an author…” to mean that “all writings” protects obscenity as a copyrightable writing. Comparing the 1909 Act with section 102 of the Copyright Act of 1976, the court noted that Congress intended to continue the policy of the 1909 Act in avoiding content restrictions of obscenity on copyrightability of “all original works of authorship.” This policy is in line with current patent and trademark statutes which avoid content restriction. The court placed its ultimate trust in the public to favor creators of useful works and to deny creators of useless works any reward. Furthermore, in one of the few instances where a court did not let its moral viewpoint cloud its judgment, the court stated that it was “inappropriate for a court…to interpose its moral views between an author and his willing audience.”
In Jartech, defendants reproduced plaintiffs’ copyrighted movies by the use of a process whereby a special camera photographed images from plaintiffs’ movies every few seconds. Then, these images were reproduced in book form with the dialogue printed below the photographs and used by the Santa Ana City Council to determine if the plantiffs’ theater constituted a nuisance. Plaintiffs sued for copyright infringement of the movie. Defendants invoked the obscenity defense contending that plaintiff’s obscene work did not qualify for the protections of the copyright laws. The court found for plaintiffs citing Mitchell andBelcher v. Tarbox, reaffirming the fact that the Copyright Act is content neutral in application thereby permitting obscenity the benefits of copyright protection.
Although Mitchell and Jartech appear to approve the perception that copyright law condones obscenity, affording obscenity copyright protection has the effect of preventing widespread dissemination by subjecting the potential infringer to the threat of actions for copyright infringement. This would limit the producers of obscenity to those with the means of creating original expression and protecting it through enforcement of the copyright laws.
THE FAIR USE FACTORS AND OBSCENE PARODY
The defense of fair use is a judicially created doctrine originating with Folsom v. Marsh evolving into the codification of fair use at section 107 of the Copyright Act of 1976. One commentator defines fair use as a “privilege in others than the owner of a copyright to use the copyrighted material in a reasonable manner without his consent, notwithstanding the monopoly granted to the owner by the copyright.” But as an equitable doctrine, it is so flexible as virtually to defy any definition. The House Report (Judiciary Committee) on section 107 reflects this viewpoint:
Although the courts have considered and ruled upon the fair use doctrine over and over again, no real definition of the concept has ever emerged. Indeed, since the doctrine is an equitable rule of reason, no generally applicable definition is posssible, and each case raising the question must be decided on its own facts.
Because obscene parody, in each instance, presents unusual facts, application of section 107 using rules of equity has been inconsistent and oftentimes unfair. The modern codification of fair use presents four factors which are equitable considerations to be assessed and weighed by the court as “a sensitive balancing of interests.” But as too often demonstrated, when obscene parody is involved, the balancing of interests is thrown out in favor of a finding of infringement based on the courts moral viewpoint.
The doctrine of fair use is invoked by defendant after a finding of infringement. Whether the infringement constitutes a fair use requires an examination of the facts of each case as applied to the fair use factors. Although section 107 is an equitable doctrine allowing for wide latitude in application, section 107 states that the determination of fair use “shall include” the four fair use factors.
Three of the four factors of section 107 have less importance when obscene parody is at issue than if the infringement is straight parody. But understanding the basic criteria of each factor is essential before looking at fair use in the context of obscene parody.
The first factor, the purpose and character of the use, has come under extensive judicial evaluation over the past several years. Debate has focused on the commercial nature of the use, profit motivations of the infringer, whether the use was for productive or creative purposes, and whether the copy was for the same intrinsic purpose for which the copyright owner intended his work to be used.
In Pillsbury Co. v. Milky Way Productions, Inc., defendant, publisher of Screw magazine, published pictures of plaintiff’s trade characters “Poppin-Fresh” and “Poppie-Fresh” engaged in intercourse and fellatio. Plaintiff contended that defendant was motivated by commercial considerations. The court rejected this argument finding that the pictures were in the nature of an editorial or social commentary rather than an attempt to financially capitalize on plaintiff’s property. Other obscene parody cases do not support this finding. In them, all defendants attempt to capitalize in some manner upon the original work.
The first fair use factor normally looks at the use in the context of commercial exploitation. Of course, most consider obscenity the crudest form of commercial exploitation. Problems arise because the subjective intent of the author becomes important. The producer of obscenity would probably state that he creates art. His argument, though skeptics disagree, is valid; in many instances what once was considered obscenity has become accepted expression. Justice Holmes emphasized this point in Bleistein v. Donaldson Lithographic Co.
The second fair use factor, the nature of the copyrighted work, is often considered in the context of whether the copyrighted work is informational or creative in nature. In normal cases the scope of permissible fair use is greater with informational works due to the risk of restraining the free flow of information. But obscene parody takes from creative expression, not from informational works. If the second fair use factor is applied as in other cases, the rule would severly limit the use of obscene parody. The nature of obscenity renders the information-creative dichotomy obsolete.
Under the second factor the courts have been diligent in finding infringement where the original work was intended for an audience of children. In Walt Disney Productions v. Air Pirates, the defendant’s characters, bearing a marked similarity to those of plaintiff, were placed in “incongruous settings where they engaged in activities clearly antithetical to the accepted Mickey Mouse world of scrubbed faces, bright smiles and happy endings.” Because the original work was aimed at children it is unlikely that either set of works, the original or the obscene parody, would invade the other’s market.
A cause of action for trademark dilution is more suited to obscene parody cases where the original work involves distinct children’s comic book or cartoon type characters. In a case using obscenity by implication, D.C. Comics, Inc. v. Unlimited Monkey Bus., defendants operated a singing telegram service where two characters, “Super Stud” and “Wonder Wench”, delivered bawdy telegrams and wore identical costumes to plaintiff’s characters “Super Man” and “Wonder Women”. The court noted the implicit disparagement and bawdy associations wherein the harm lies in the dilution of plaintiff’s works.
The third fair use factor, the amount and substantiality of the portion used in relation to the copyrighted work as a whole, is often used by the courts to decide the case. Loew’s Inc. v. Columbia Broadcasting Sys. Inc., highlights this factor making it a threshold test that eliminates near verbatim copying. Once a determination was made that no verbatim copying occured, the court examined whether the copy conjured up or recalled just enough of the original’s expression to bring it to the mind of the audience. In subsequent cases, this test has resulted in uneven findings of infringement or fair use in similar situations. Despite inconsistent results, the third fair use criteria is a valid factor that should apply to obscene parody as well as to other areas of fair use. It is similar to the second factor in that close or verbatim copying, especially in the obscene parody area could result in the trade dilution of the copyright owners property.
The fourth fair use factor, the effect of the use upon the potential market for or value of the copyrighted work, is aimed at the copier who attempts to usurp the demand for the original work. In normal parody cases the effect on the potential market should outweigh in importance the value of the copyrighted work. This factor, which courts consider crucial, should take on less importance in obscene parody cases as this form of expression rarely replaces the market for or affects the value of the original. Obscene parody is aimed at an entirely different market. The dissent in MCA, Inc. v. Wilson, would have allowed fair use on this theory. The court noted that “[a] raucous and explicitly sexual satire is not a substitute for the innocence of Bugle Boy. I therefore cannot agree with the majority’s ‘premise that the songs were competing works,’…or that the sale or rendition of defendants’ song would interfere with the marketability of plaintiff’s song.”
Normally, to negate fair use, plaintiff “need only show that if the challenged use ‘should become widespread, it would adversely affect the potential market for the copyrighted work.'” An obscene parody rarely becomes widespread. In most cases it is limited to one use and is not adapted by others seeking to appropriate expression. Obscenity’s limited audience ensures that the use will not spread thus limiting the affect on the potential market. In the obscene parody cases plaintiffs have shown no affect on the market for their copyrighted works.
Section 106 lists various derivative rights which are potential markets for copyrighted works. These potential markets distinctly differ from markets for obscene parody. No conflicts result between the two markets as owners of copyrighted works neither seek to parody their properties through the use of obscenity nor sell in the obscenity markets.
The nature of obscene parody requires a reexamination of the community obscenity standard in order to promote uniform application of copyright laws throughout the country. Without a uniform standard, judicial treatment of obscene parody and the copyright laws will suffer from variations in moral viewpoint, causing an increase in litigation determining the status of obscene parody in fair use cases.
Obscene parody requires broad interpretation of three of the four fair use guidelines. The third fair use factor, amount and substantiality of the portion used, should be applied as in other fair use cases. Authors of copyrighted works should be protected from any parodist who “lard their lean books with the fat of others’ works”. But differences between obscene parody and other parodic uses highlight how little application the first, second and fourth fair use factors have in cases of obscene parody. For these reasons obscene parody should be given the benefit of the doubt whenever possible. Today’s unprotected expression may become tomorrow’s work of art. Let the market place of ideas determine the acceptability of obscene parody
This article first appeared in 4 The Entertainment and Sports Lawyer Number 3, Winter/Spring 1986.
 MCA, Inc. v. Wilson, 677 F.2d 180 (2d Cir. 1981); Dallas Cowboys Cheerleaders, Inc. v. Pussycat Cinema, Ltd., 604 F.2d 200 (2d Cir. 1979); Dallas Cowboys Cheerleaders v. Scoreboard Posters, 600 F.2d 1184 (5th Cir. 1979); Walt Disney Prods. v. Air Pirates, 581 F.2d 751 (9th Cir.), cert. denied, 439 U.S. 1132 (1978); Pillsbury Co. v. Milky Way Prods., Inc., 215 U.S.P.Q. 124 (N.D.Ga. 1981); Walt Disney Prods. v. Mature Pictures Corp., 389 F. Supp. 1397 (S.D.N.Y. 1975). Back to text
 Hustler Magazine, Inc. v. Moral Majority, Inc., 606 F. Supp. 1526 (C.D.Cal. 1985); D.C. Comics, Inc. v. Unlimited Monkey Bus., 598 F. Supp. 110 (N.D.Ga. 1984); Elsmere Music, Inc. v. National Broadcasting Co., 482 F. Supp. 741 (S.D.N.Y.), aff’d per curiam, 623 F.2d 252 (2d Cir. 1980). Back to text
 479 F. Supp. 351 (N.D.Ga. 1979).Back to text
 Id. at 357. Back to text
 Note, Parody and Fair Use: The Critical Question, 57 Wash. L. Rev. 163, 173 (1981). Back to text
 Infra, notes 72 to 76 and accompanying text. Back to text
 Note, supra note 11, at 173. Back to text
[ 14] 389 F. Supp. 1397 (S.D.N.Y. 1975). Back to text
 Id. at 1398, quoting Berlin v. E.C. Publications, Inc., 329 F.2d 541, 545 (2d Cir. 1964). Back to text
 479 F. Supp. 351 (N.D.Ga. 1979). See also MCA, Inc. v. Wilson, 677 F.2d 180 (2d Cir. 1981) (song “Cunnilingus Champion of Company C” failed to parody Andrews Sisters’ “Boogie Woogie Bugle Boy of Company B”); Walt Disney Prods. v. Mature Pictures Corp., 389 F. Supp. 1397 (S.D.N.Y. 1975) (defendant’s verbatim use of plaintiff’s “Mickey Mouse March” failed to parody song). Back to text
 479 F. Supp. at 360. Back to text
 17 U.S.C.A. § 106 (West 1977) states:
Subject to sections 107 through 118, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; and
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display thecopyrighted work publicly. Back to text
 Cf. Walt Disney Prods. v. Air Pirates, 581 F.2d 751, 758 n.15 (9th Cir. 1978) (conjuring up life and society an inherent aspect of parody yet conjuring up cartoon characters no fair use), cert. denied, 439 U.S. 1132 (1978). Back to text
 Berlin v. E.C. Publications, Inc., 329 F.2d 541, 543 (2d Cir. 1964); Elsmere Music, Inc. v. National Broadcasting Co., 482 F. Supp. 741, 746 (S.D.N.Y.), aff’d per curiam, 623 F.2d 252 (2d Cir. 1980). Back to text
 18 U.S.C.A. §§ 1461, 1462, 1463, 1465 (West 1984). See also 18 U.S.C.A. § 1465 (West 1984) (broadcasting obscene language); 26 U.S.C.A. § 5723(d) (West 1980) (obscene material on tobacco products); 47 U.S.C.A. § 223 (West Supp. 1985) (obscene telephone calls); 18 U.S.C.A. § 2252 (West 1984) (child pornography). Back to text
 Attributed to Justice Potter Stewart. Back to text
 “The obscenity which the law seeks to suppress is that which brings the blush of shame to the cheek of virtue, not to the cheek of vice, not to the wise, because that ability to blush has long since been stifled, it is dead, it does not exist any longer.”Bullard v. Esper, 72 F. Supp. 548, 548 (N.D.Tex. 1947). Back to text
 413 U.S. 15, reh’g denied, 414 U.S. 881 (1973). Back to text
 413 U.S. at 24. Back to text
 Cf. Goldstein v. California, 412 U.S. 546, 555 (1973) (“The objective of the Copyright Clause was clearly to facilitate the granting of rights national in scope.”). Back to text
 Mitchell Bros. Film Group v. Cinema Adult Theater, 604 F.2d 852 (5th Cir.), cert. denied, 445 U.S. 917 (1979). Back to text
 Smith v. United States, 431 U.S. 291, 304 n.11 (1977). Back to text
 U.S. Const. art. I, § 8, cl. 8. Back to text
 Martinetti v. Maguire, 16 F. Cas. 920 (C.C.Cal. 1867) (No. 9,173); Barnes v. Miner, 122 F. 480 (S.D.N.Y. 1903); Dane v. M. & H. Co., 136 U.S.P.Q. 426 (N.Y. Sup. Ct. 1963). Contra 1 M. Nimmer, Nimmer on Copyright, § 1.02[A] (1985) (the language “promote the Progress of Science and useful Arts…” must be read as a preamble stating the intention of copyright protection). Back to text
 Richardson v. Miller, 20 F. Cas 722 (C.C. Mass. 1877) (No.11,791); Bullard v. Esper, 72 F. Supp. 548 (N.D. Tex. 1947);Hoffman v. Le Traunik, 209 F. 375 (N.D.N.Y. 1913). Back to text
 Belcher v. Tarbox, 486 F.2d 1087 (9th Cir. 1973). Back to text
 41 Op. Att’y Gen. 395 (1958). Back to text
 Id. at 401-02. Back to text
 604 F.2d 852 (5th Cir.), cert. denied, 445 U.S. 917 (1979). Back to text
 666 F.2d 403 (9th Cir.), cert. denied, 459 U.S. 826 (1982). Back to text
 Act of Mar. 4, 1909, ch. 16, 35 Stat. 1075 (1909) (codified at 17 U.S.C.A. §§ 1-216 (repealed 1978, West Supp. app. 1985). Back to text
 17 U.S.C.A. § 4 (repealed 1978, West Supp. app. 1985). Back to text
 604 F.2d at 854. See Schneider, Authority of the Register of Copyrights to Deny Registration of a Claim to Copyright on the Ground of Obscenity, 51 Chi.-Kent L. Rev. 691, 692-93 (1975); Note, The Obscenity Defense in Actions To Protect Copyright, 46 Fordham L. Rev. 1037, 1038 (1978). Back to text
 17 U.S.C.A. § 102 (West 1977) states:
(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:
(1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works; and
(7) sound recordings.
(b) . . . .
Back to text
 17 U.S.C.A. § 102 (West 1977). The House Judiciary Committee stated, “[t]his standard does not include requirements of novelty, ingenuity, or esthetic merit….” H.R. Rep. No. 1476, 94th Cong., 2d Sess. 51, reprinted in 1976 U.S. Code Cong. & Ad. News 5659, 5664. Back to text
 35 U.S.C.A. §§ 1-376 (West 1984 and Supp. 1985). Back to text
 Lanham Act §§ 1-45, 15 U.S.C.A. §§ 1051-1127 (West 1982 and Supp. 1985). Back to text
 604 F.2d at 855. Back to text
 Id. at 861. Back to text
 486 F.2d 1087 (9th Cir. 1973). Back to text
 666 F.2d at 406. Back to text
 9 F. Cas 342 (C.C.D.Mass. 1841) (No. 4,901). The privilege of “fair quotation,” i.e., the unauthorized use of copyrighted material by a reviewer, is the oldest form of fair use. The specific term “fair use” was first used in Lawrence v. Dana, 15 F. Cas. 26, 60 (C.C.D.Mass. 1869) (No. 8,136). Back to text
 17 U.S.C.A. § 107 (West 1977). Back to text
 H. Ball, The Law of Copyright and Literary Property, 260 (1944). Back to text
 Time, Inc. v. Bernard Geis Assocs., 293 F. Supp. 130, 144 (S.D.N.Y. 1968). Back to text
 H.R. Rep. No. 1476, 94th Cong., 2d Sess. 65, reprinted in 1976 U.S. Code Cong. & Ad. News 5679. Back to text
 17 U.S.C.A. § 107 (West 1977) states:
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 means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of the copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include–
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;
(2) the nature of the copyright work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
Back to text
 Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 455 n.40 (1984). Back to text
 Meeropol v. Nizer, 560 F.2d 1061, 1068 (2d Cir. 1977), cert. denied, 434 U.S. 1013 (1978). Back to text
 17 U.S.C.A. § 107 (West 1977). Back to text
 17 U.S.C.A. § 107(1) (West 1977). Back to text
 Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 451 (1984) (“[E]very commercial use is presumptively an unfair exploitation of the monopoly privilege that belongs to the owner of the copyright….”); Pacific and S. Co., Inc. v. Duncan, 744 F.2d 1490, 1496 (11th Cir. 1984) (videotape resale without permission of copyright owner no fair use); contra MCA, Inc. v. Wilson, 677 F.2d 180, 182 (2d Cir. 1981) (court may weigh public benefit with private commercial gain); Triangle Publications, Inc. v. Knight-Ridder Newspapers, Inc., 626 F.2d 1171, 1175 (5th Cir. 1980) (advertisement using cover of rival magazine fair use). Back to text
 Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S.____, 85 L.Ed.2d 588, 608 (1985) (publication of book excerpts labeled news by defendant not fair use); Rosemont Enterprises, Inc. v. Random House, Inc., 366 F.2d 303, 307 (2d Cir. 1966), cert. denied, 385 U.S. 1009 (1967) (quotation of 256 words from “The Howard Hughes Story” fair use). Back to text
 Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417 455 n.40 (1984); Pacific and S. Co., Inc. v. Duncan, 744 F.2d 1490 1495 (11th Cir. 1984). Back to text
 Marcus v. Rowley, 695 F.2d 1171, 1175 (9th Cir. 1983) (“Cake Decorating Learning Activity Package” found to be same type of use as copyrighted book “Cake Decorating Made Easy”); Jartech, Inc. v. Clancy, 666 F.2d 403, 407 (9th Cir.) (“The alleged infringers made abbreviated copies of the films, not for subsequent use and enjoyment, but for evidence to be used in the nuisance abatement proceedings.”), cert. denied, 459 U.S. 879 (1982); Hustler Magazine, Inc. v. Moral Majority, Inc., 606 F.Supp. 1526, 1535 (C.D.Cal. 1985) (Falwell’s use of Hustler advertisement used for different purpose). Back to text
 215 U.S.P.Q. 124 (N.D.Ga. 1981). Back to text
 Id. at 131. Back to text
 Martinetti v. Maguire, 16 F. Cas. 920 (C.C.Cal. 1867) (No. 9,173) (women in novel dress); Richardson v. Miller, 20 F. Cas 722 (C.C. Mass. 1877) (No.11,791) (pictures on playing cards); Broder v. Zeno Mauvais Music Co., 88 F. 74 (C.C.N.D.Cal. 1898) (word “hottest” used in song “Dora Dean”); Barnes v. Miner, 122 Fed. 480 (S.D.N.Y. 1903) (actor shown changing costumes); Hoffman v. Le Traunik, 209 F. 375 (N.D.N.Y. 1913) (humorous monologues); Bullard v. Esper, 72 F. Supp. 548 (N.D. Tex. 1947) (movie showing sexual relations concealed by bed covers); Dane v. M. & H. Co., 136 U.S.P.Q. 426 (N.Y. Sup. Ct. 1963) (dance composition about strip teasers). Back to text
 188 U.S. 239, 251 (1903). Back to text
 17 U.S.C.A. § 107(2) (West 1977). Back to text
 Consumers Union of U.S. v. General Signal Corp., 724 F.2d 1044 (2d Cir. 1983) (quotation of informational product review considered fair use), cert. denied, 469 U.S.____, 83 L.Ed.2d 45 (1984); Rosemont Enterprises, Inc. v. Random House, Inc.,366 F.2d 303, 307 (2d Cir. 1966), cert. denied, 385 U.S. 1009 (1967) (quotation of biography a fair use). Back to text
 581 F.2d 751 (9th Cir.), cert. denied, 439 U.S. 1132 (1978). Cf. Walt Disney Prods. v. Mature Pictures Corp., 389 F. Supp. 1397 (S.D.N.Y. 1975) (verbatim use of “Mickey Mouse March” as background music while female lead gratifies three men). Back to text
 581 F.2d at 753. Back to text
 598 F. Supp. 110 (N.D.Ga. 1984). Accord Dallas Cowboys Cheerleaders, Inc. v. Pussycat Cinema, Ltd., 604 F.2d 200 (2d Cir. 1979) (use of Cheerleaders uniform in pornographic movie); cf. Walt Disney Prods. v. Air Pirates, 581 F.2d 751, 753 (9th Cir.) (use of cartoon characters in “free thinking, promiscuous, drug ingesting counterculture”), cert. denied, 439 U.S. 1132 (1978). Back to text
 598 F. Supp. at 118. Back to text
 17 U.S.C.A. § 107(3) (West 1977). Back to text
 131 F. Supp. 165 (S.D.Cal. 1955), aff’d sub nom. Benny v. Loew’s Inc., 239 F.2d 532 (9th Cir. 1956), aff’d by an equally divided court, 356 U.S. 43 (1958). Back to text
 Walt Disney Prods. v. Air Pirates, 581 F.2d 751, 757 (9th Cir.), cert. denied, 439 U.S. 1132 (1978). Back to text
 Loew’s Inc. v. Columbia Broadcasting Sys. Inc., 131 F. Supp. 165, 176 (S.D.Cal. 1955), aff’d sub nom. Benny v. Loew’s Inc., 239 F.2d 532 (9th Cir. 1956), aff’d by an equally divided court, 356 U.S. 43 (1958); Columbia Pictures Corp. v. National Broadcasting Co., 137 F. Supp. 348, 354 (S.D.Cal. 1955); Berlin v. E.C. Publications, Inc., 329 F.2d 541, 543 (2d Cir. 1964). Back to text
 Pillsbury Co. v. Milky Way Prods., Inc., 215 U.S.P.Q. 124, 132 (N.D.Georgia 1981) (defendant’s replication of plaintiff’s “Poppin’ Fresh” character found to be fair use); Walt Disney Prods. v. Air Pirates, 581 F.2d 751, 757 (9th Cir.) (defendant’s reproduction of characters infringe Disney copyrights), cert. denied, 439 U.S. 1132 (1978). Back to text
 17 U.S.C.A. § 107(4) (West 1977). Back to text
 Consumers Union of U.S. v. General Signal Corp., 724 F.2d 1044, 1050 (2d Cir. 1983) (quotation from product review a fair use), cert. denied, 469 U.S.____, 83 L.Ed.2d 45 (1984); Rubin v. Boston Magazine Co., 645 F.2d 80, 84 (1st Cir. 1981) (defendant’s use of plaintiff’s copyrighted scales affected plaintiff’s potential market); Quinto v. Legal Times of Washington, Inc., 506 F.Supp. 554 (D.C. 1981) (defendants verbatim reprinting of plaintiff’s article foreclosed sale to another paper). Back to text
 3 M. Nimmer , § 13.05[A] at 13-76 to 77 (1986). Back to text
 Hustler Magazine, Inc. v. Moral Majority, Inc., 606 F. Supp. 1526, 1538-39 (C.D.Cal. 1985). Back to text
 677 F.2d 180 (2d Cir. 1981) (court held song “Cunnilingus Champion of Company C” failed to parody Andrews Sisters’ “Boogie Woogie Bugle Boy of Company B”). Back to text
 Id. at 191 (Mansfield, J. dissenting), quoting, majority opinion at 183. Back to text
 Harper & Row Publisher, Inc. v. Nation Enterprises, 471 U.S.____, 85 L.Ed.2d 588, 612 (1985) (emphasis added),quoting Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 451 (1984). Back to text
 Pillsbury Co. v. Milky Way Prods., Inc., 215 U.S.P.Q. 124, 130 (N.D.Ga. 1981) (plaintiff received one letter from an irate customer but could show no effect on sales of product). Back to text
 17 U.S.C.A. § 106 (West 1977), supra note 18. Back to text
 Yankwich, supra note 7, at 1154, quoting Robert Burton, Anatomy of Melancholy 18 (1948). Back to text.