Abstract

Some of the most important statements in our nation’s rich copyright jurisprudence were written by Justice Holmes over a century ago in Bleistein v. Donaldson Lithographing Co.,a case holding that circus posters were entitled to copyright protection.

In Bleistein, Justice Holmes stated that “[i]t would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of [writings, illustrations, music and other forms of expression] outside of the narrowest and most obvious limits.” This announced what has been called the principle of “aesthetic non-discrimination.

“Pull My Finger Fred,” and many other decisions involving bad jokes, sick parodies, and subject matter that could be regarded as in bad taste, disgusting or even obscene, show that the Holmes’ principle of aesthetic non-discrimination has, for the most part, been taken seriously by the courts. This principle is often tested in cases where a defendant uses a popular copyrighted work without permission in a way that is disgusting or offensive to the copyright owner. For example, a photographer posed nude Barbie dolls in suggestive positions with common kitchen appliances and marketed his photographs as art. Mattel sued for infringement and the photographer was successful in arguing that his photographs were fair use parodies of Barbie. The judges who decided this case did not let their opinions on whether the defendant’s photos of Barbie were in bad taste color their fair use analysis. Not all courts, however, have been able to maintain this kind of objectivity, so Holmes’ principle is sometimes at risk when courts have to decide whether an offensive or disgusting use of a protected work is a parody and fair use.

The cases reviewed in Section I of this Article show that subject matter one might label as offensive or repulsive is ordinarily copyrightable. It is rare for an offensive work to fall within those “narrow[] and most obvious limits” and be held unprotectable. Moreover, as discussed in Section II, many a defendant’s use of another's protected work in an offensive or even disgusting manner has been permitted as a parody by application of our robust fair use defense. For the most part, courts have applied the fair use doctrine in accordance with Holmes’ warning about not judging the worth of particular works. Although most federal courts heed his admonition, the discussion in Section III explains that there is still a risk that a court’s perception of the worth or merit of an infringing work will affect the ultimate decision. In particular, there is risk of a court failing to heed Holmes’ warning when it has to decide, in accordance with the framework for fair use analysis announced by the Supreme Court in Campbell v. Acuff-Rose Music, whether a challenged spoof or take-off on a copyrighted work qualifies as a parody by targeting or by commenting on that protected work. Like several other commentators, I am troubled by the comment on the original or target requirement, and I conclude in Section IV by contending that courts should be more willing to recognize satire as fair use

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