Wednesday, August 28, 2019
Menell, Balganesh, and Nimmer on Mashups and Fair Use: The Bold Misadventures of the Seussian Starship Enterprise @BerkeleyLawBCLT
Peter S. Menell, UC Berkeley School of Law, Shyamkrishna Balganesh, University of Pennsylvania Law School, and David Nimmer, Irell & Manell, LLP, have published Mashups and Fair Use: The Bold Misadventures of the Seussian Starship Enterprise. Here is the abstract.
This amicus brief filed in the Ninth Circuit appeal of Dr. Seuss Enterprises v. ComicMix seeks to rectify and restore the balances underlying the Copyright Act of 1976 — particularly the interplay of the Section 106(2) right to prepare derivative works and the fair use doctrine. The District Court granted the defendants’ motion for summary judgment on the ground that OH THE PLACES YOU’LL BOLDLY GO! — the defendants’ illustrated book combining Dr. Seuss’s OH THE PLACES YOU’LL GO! and other Dr. Seuss books with Star Trek characters and themes — made fair use of the Dr. Seuss works. Based on the works at issue, uncontested facts, and the judge’s factual findings, the brief contends that defendants’ unauthorized derivative work plainly supported a grant of summary judgment for the plaintiff on the fair use defense. The District Court’s conclusory finding that the defendants’ work is “highly transformative,” disregard of the second and third fair use factors, analysis of the fourth factor, and allocation of the burden of proof misapply the standards for fair use analysis. The District Court’s decision destabilizes essential copyright law principles that have long supported markets for collaborations and derivative works. If this decision stands, competitors could flood publishing, television, film, and merchandising markets with unauthorized derivative works merely by “mashing” in other elements. Lucasfilm could produce OH THE PLACES YODA’LL GO! without obtaining a license from Dr. Seuss Enterprises. The developers of the Pokémon series could offer OH THE PLACES YOU’LL Pokémon GO!. Castle Rock Entertainment could introduce OH THE PLACES YOU’LL Yada Yada Yada!. Warner Bros. could freely mash together Bugs Bunny with Marvel Comic’s Iron Man or Sesame Street’s Kermit the Frog. Moreover, anyone could produce and distribute such works. That result contravenes what Congress intended in establishing an exclusive right to prepare derivative works subject to the fair use defense. While mashups can qualify for fair use in particular cases — for example, where they offer parodic or even satirical commentary and insights; or where a fan adapts his or her favorite characters or scenes for a school project — a categorical rule that commercial, non-parodic, non-satirical mashups automatically qualify as “highly transformative” for purposes of fair use analysis goes well beyond the Copyright Act’s regime for promoting expressive creativity. Promoting mashup art beyond the limits set by copyright law’s exclusive rights, limiting doctrines, and fair use analysis may well be a desirable policy reform for the digital age. Such a course, however, is for Congress and not the judiciary.
Download the article from SSRN at the link.