Campbell’s (Market) Failure
[Ed: written a while ago, but seemed appropriate to publish as this nears]
Every time I re-read Souter’s majority opinion in Campbell, my goat is thoroughly gotten. It’s obviously the correct result, and it elevates important appellate precedents, but it just isn’t really honest about what needs to be done about fair use. It’s nice to carve out a more lenient standard for parodies in fair use, but to do this Souter places too much weight on the “market failure” approach. It’s still likely true that most copyright owners wouldn’t license a scathing parody, but that’s not why we like parodies and it’s not why we should protect them. We think parodies are important because they represent a fresh and separate perspective on work that has become common cultural currency. It adds to our collective discourse by presenting new views on that work, either in tension or agreement with the original. It should not matter whether a given parody is funny or even critical; what matters is that it is someone else’s opinion. We would do better to call it “commentary” and let it apply more widely, which has the benefit of being much closer in scope to the full spectrum of transformative uses we should protect (not to say that we shouldn’t protect consumptive fair uses, but that’s a whole ‘nother kettle of fish).
We’ve seen in Perfect 10 a case of copyright owners essentially developing a licensing market to preclude claims of fair use, and there is no good reason to imagine that this will not happen with parodies. Many copyright owners would be happy to license some parodies if they thereby got the ability to control all potential parodies. I believe the Court was worried about this, but they really should have been explicit about it, rather than gilding parody with market-failure leaf and leaving the rest of fair use on the shelf.
In short, we need fair use for all kinds of commentary because it must be independent to be effective. The problem is not that copyright owners won’t license parodies, but that they won’t license good parodies. A parody made under license, likely with the copyright owner having strong approval rights, is at best suspect, and more likely a complete sham.
evan :: Jan.31.2008 :: Notions :: No Comments »