Tushnet on Copyright’s Privileging of Transgressive Fair Use

Rebecca Tushnet’s paper “My Fair Ladies: Sex, Gender, and Transformative Use” was a very interesting take on “classic” fair use cases in copyright. In a small tribute to her great blogging on these proceedings, and her extraordinarily helpful IP database, I’ll give a summary of her presentation below…. (more after the jump)

Tushnet discussed 2 Live Crew’s big fair use case, involving a song whose lyrics can be found in the appendix to Campbell v. Acuff Rose (blogged below). Tushnet notes how contestable the effort to characterize the song as one about “streetwalkers” is….and yet the court accepted it.

She also talked about the “Naked Gun” case, which permitted a parody of a picture of a pregnant Demi Moore via a picture of Leslie Nielsen’s head melded onto an image of a pregnant model. The court said that the poster “commented on the undue self-importance of the original.” But in a case involving Miramax’s suit against Michael More’s “appropriation” of the style and slogan of Men in Black, a very similar movie poster satire strategy was deemed not a fair use.

The next gendered example involved divergent treatement of Jeff Koons’s puppies sculpture and a later photo montage he did. The puppies shot was seen as “just satire,” not parody…chosen because it was typical, commonplace, and familiar. It’s about exposing the banality of the everyday. So the court responds: it has to matter what you pick. Another Koons creation, which focused on women’ calves and feet, *was* fair use. It’s an almost identical type of appropriation. So it seems like picking a random image of women’s legs is more critical to the court than an image of an old couple with puppies.

With Forsythe’s “Food Chain Barbie,” Tushnet reached a quite stunning point: if you want to appropriate images to win a fair use case, it’s helpful to use an image of a “sexualized female.” She noted the most pornographic image of all the cases she discussed (involved in the “Starballz” hentai book’s win of a fair use battle against the Star Wars franchise) won “transformative use” most easily.

Tushnet noted that, if we take these cases seriously, they give copyrightholders a market as or less “explicit” than the original work. The CleanFlicks case seems to fit into this model as well; it gave copyrightholders the exclusive right to “desexualize” movies, but all these fair use cases seem to give everyone the right to make a more sexualized “parody” (using that term very loosely).

Question and Answer

Q: Is the entire fact of these markets (or uses) reinforcing stereotypes?

A: Moviemakers are developing multiple markets for films, and given new NC17 movie versions, it seems like they want the right to control licensing of more sexualized derivative works. The paradox is that the pornographer has the most rights–see, e.g., PErfect 10 and the comparison between the image purveyor in that case and the art photography in Kelly v. Arriba Soft.

Q: Do courts respond to the gender/race of defendants?

A: Usually the owner of image = men or corporations. In Krueger, the right of publicity claim was brought by woman in picture (that Krueger emblazoned with the title “It’s a Small World–Unless You Have to Clean It).

Q: Is this only true for sex, or is there a relation between parody and dominant cultural paradigms? Note race in 2Live Crew and Wind Done Gone. What about violence as transgression?

A: Sex may seem more parodic to us than violence, given the pervasiveness of violence in American culture. Note that in Wind Done Gone, though it’s mainly about race, the sexual nature of Randall’s work “rises” to the top of the fair use analysis.

Q: There is a tension between low-protectionism and feminism here.

A: Transformativeness is your “best shot” in fair use. 2Live Crew was transformative. But parodies aren’t distinct from the larger culture either. So the idea that they have special access to liberation is unlikely.

P.S.: The paper is on the conference website, and is forthcoming, American Univ. J. Gender, Social Policy & the Law(2007).

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