C&D Squashes Seuss-Style Satire: Where Did The Idea/Expression Dichotomy Go?
from the blue-eggs-and-spam dept
One aspect of fair use that often confuses people is the distinction between parody (which is well-established as fair use in many circumstances) and satire (which is not). The basic distinction is that a parody that makes use of a copyrighted work is doing so to comment on that work, while satire that makes use of a copyrighted work is doing so to comment on something else. The legal reasoning is that in the former situation, use of the work is necessary because it is intrinsic to the commentary, but in the latter situation it is unnecessary because the same commentary could be made in another way.
Unfortunately, the distinction is not always so clear. Illustrator Danny Hellman recently discovered this after completing a series of illustrations in the style of Dr. Seuss for a book about declining job prospects for recent graduates, itself written in the Seussian style (and presumably inspired by the tradition of reciting Seuss' Oh, The Places You'll Go! at graduation ceremonies).
A few months into the project, (after I’d turned in about half of the book’s 80 or so illos) the publisher sent promo materials for the book out to retailers. Apparently, some wicked, Grinch-like person felt compelled to pass these materials along to attorneys who work for the Ted Geisel [Dr. Seuss] estate, at which point this flock of legal carrion birds descended on my publisher much as the Onceler clan does on a newly-discovered forest of virgin Truffula trees.
Okay, enough of the Seuss metaphors. Suffice to say that my publisher was hit with a Cease & Desist letter, and the project was killed, in spite of our well-established First Amendment right to commit parody.
While I'm sure that the estate would have sent a C&D no matter what, in this case the parody defence is likely not as strong as Hellman assumes, because the book was not commenting on Seuss and his work, but rather on an unrelated topic, making it more satire than parody. There's also the possibility that trademarks are involved, which would be a different story, but without actually seeing the C&D it's hard to say. Assuming, as Hellman suggests, copyright is indeed the core issue, this situation is comes down to an even more fundamental question: can an artist's "style" be protected by copyright? Let's take a look at one of the images in question:
Yes, it is distinctly Seussian, but it does not replicate or make use of any of Seuss' actual work. This is an example of the failure of the idea/expression dichotomy that is supposed to be central to copyright law. In theory, ideas are not covered by copyright, only the fixed expression of those ideas, but while some argue that the distinction is clear and obvious, the fact is that's rarely the case. An artist's signature style is, in one sense, a part of the specific expression, but in another sense it is a collection of artistic ideas that dictate expression. If style can be protected, it creates a problematic double standard: could someone, for example, get away with reproducing a Seuss book in full using a different style of art and writing? Unlikely. But if they also can't tell a different story using the Seussian style then... suddenly there is no "idea" side of the dichotomy at all.
The real issue is that it's highly subjective, creating situations where judges must play art critic to determine if something is infringing. So a book like this can easily be killed by a C&D, since the publisher isn't going to risk a lawsuit when they have no clear standard telling them if the work is infringing. That creates a massive chilling effect on art, and gives rightsholders too much power to squash anything they don't like, with or without a firm legal basis.
Lack of clarity on key concepts like parody/satire and idea/expression is one of the biggest problems with copyright law today. When artists have no way of knowing whether something is infringing, it limits their creativity, and everyone is worse off. A firm, clear definition of the idea/expression dichotomy (and one that errs on the idea side, as was always the intent, since fair use is supposed to be what stops copyright from violating freedom of speech) would go a long way towards fixing a broken law.
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Filed Under: cease and desist, copyright, danny hellman, dr. seuss, fair use, idea expression dichotomy, parody, trademark
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This case should even be a case
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Re: This case should even be a case
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Re: Re: This case should even be a case
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Re: Re: This case should even be a case
And not even the publishers et al. Would gain anything from their. Dead (but if they found a way...)
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Re: Re: Re: This case should even be a case
Sure they would, then they don't have to pay the artist royalties.
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Re: Re: This case should even be a case
Think of the children.
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Re: Re: This case should even be a case
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Re: This case should even be a case
I actually think that the copyright term should ignore completely whether the artist is alive or dead. The determination of how long the copyright term is should balance how much of an incentive it is for the artist versus the overall benefit to the public. How does whether the artist is alive logically play into this calculation?
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Re: Re: This case should even be a case
Because copyright is suppose to be an incentive to create. Dead people only create fertilizer.
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Yes, a smart pirate would totally commit the crime of murder just so he could avoid a lawsuit for copyright infringement.
Are you totally mad?
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Re: Re: Re: Re: Re: This case should even be a case
So, less mad, more pragmatic.
;-P
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Although, maybe not in the states.
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Re: Re: Re: Re: This case should even be a case
You say this as if it's not equally true no matter how long copyright terms are...
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Is that you Jar Jar?
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Re: Is that you Jar Jar?
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Interesting...
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Oh Noes!!1!
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You see Seuss, I see Star Wars
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Seuss has been down this road before ...
Seuss & Co. got themselves a court ruling that said emulating the style of Seuss without parody of an actual work was infringement. So it was not likely just a C&D, but a C&D with case citations to the time long ago that they won on this issue. Hence the quick fold by the publisher.
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Re: Seuss has been down this road before ...
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Re: Seuss has been down this road before ...
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Re: Seuss has been down this road before ...
Link please.
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Re: Seuss has been down this road before ...
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Grrrrrr
The original build was going to clone the game, but apparently atari hate that and issue legal proceedings like most, even though they don't have a version on this platform. So i have rewritten everything. But as its the retro style the graphics are all blocks, so does the fact i have a castle made of blocks (Adventure / Atari esq but def. not the same) mean i am on shakey ground.
Even though all art and sound is original, the story has been re-written so its nothing like advenutre and the adventurer, castles, keys, swords and other evil monster genre predates video games by hundreds of years, i am still hesitant...which is just wrong
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Re: Grrrrrr
But Piracy!
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Re: Grrrrrr
Does Atari (or whoever owns the rights now) have any plans to market something based on Adventure or other classic games in the near future? If not, then cloning the game does not hurt them in any way, so they have no reason to go after you. There's no excuse.
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Put aside the fact that the author is dead and some lazy inheritors are the ones that are actually gonna benefit, we are talking about a brand new work that uses parts of an existing works but it's being killed because of imaginary rights granted by Governments. If you consider such rights were first aimed at PROMOTING CREATIVITY AND ACTING AS INCENTIVE FOR FURTHER CREATIONS then it seems to me that these imaginary rights already failed miserably and should be either reviewed or abolished.
But never mind me.
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The reason is more to do with free speech, and the fact that copying is "necessary" for one but not the other.
So for example, if you want to criticize Dr. Seuss' litigious estate by parodying "How The Grinch Stole Christmas", your use of Seuss' work is intrinsic to your commentary - thus, the courts reason, to deny you the ability to use Seuss' work for a parody would be to deny you your protected free speech. So parody becomes a form of fair use - since fair use is (in theory) how you "fix" situations where copyright law infringes on free speech.
If, on the other hand, you want to criticize someone else, let's say the RIAA, by writing a version of "How The Grinch Stole Christmas", then it's no longer a parody because (at least legally speaking) a parody exists to mock/criticize/comment on the thing it is parodying. The use of the Seuss story is not intrinsic to your criticism of the RIAA. Thus, the courts reason, that denying you the right to use Seuss' work does not actually limit your free speech - and thus they grant no fair use exception to copyright law in that situation.
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Re: >:D
There's excellent money to be made. I hear the market for convincing counterfeits of classic artists is pretty booming, they've even got some on display at the Louvre.
Or, if you're of a less criminal persuasion, there's a pretty legit market for replicas--but the money's not as good.
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If the answer is no, our copyright system is even more broken than I imagined. Where, exactly, can we draw the line? Is writing gruesome horror using pop, straightforward language with everyman characters infringing on Stephen King?
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According to Wikipedia...
http://en.wikipedia.org/wiki/Parody
Parody is NOT limited to the original work. However I do agree with the rest of his analysis of the case.
Regardless, lawyers send threatening C&D letters all the time that aren't based on any solid legal standing because 1. it doesn't cost anything to do it and 2. often times the scare tactic works because people don't know their rights or simply want to avoid ANY kind of legal entanglement.
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Re: According to Wikipedia...
1) The dictionary definition is not the same as the legal definition
2) I still think you're reading that wrong - the "some other target" part means a parody can be of something other than a work/style/author, however the target (whatever it may be) is still what's being imitated
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Re: Re: According to Wikipedia...
The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as fair use: “quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.”
http://www.copyright.gov/fls/fl102.html
so it appears that the end result as it applies to copyright law is the same regardless.
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Re: Re: Re: According to Wikipedia...
Parody is NOT limited to the original work.
Now you're saying it is... which is what I'm saying :)
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Re: Re: Re: Re: According to Wikipedia...
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I do not satire with a goat
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That's what copyright extensions are all about - making sure those with a lot of money don't have to compete with others over the same material.
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Was there words?
I am sam, sam I am. I am a hobo, that is no hoho.
Parody is a nice thing, but generally you have to be making a parody of the original, and not just using the original to make points.
let me quote:
a series of illustrations in the style of Dr. Seuss for a book about declining job prospects for recent graduates
Clearly, this isn't to parody a Seuss book, but rather to make political points. It's not a parody by any term I can think of.
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And most satirical work is heavily political in one form or another.
I'd have to see more of the work to but, on the surface, it's sad that it came to an end with a C&D request/order.
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Wow that's such an important point I wish I'd dedicated the whole first half of the post to making it.
Oh wait...
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It's as clear as your lack of rapping talent.
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Yeah - like I said in the post. Several times. I think you better read it again TAM. You're in so much of a rush to find something to criticize me on that you just make yourself look like a jackass.
Here, let me help you, since you're clearly quite slow:
in this case the parody defence is likely not as strong as Hellman assumes, because the book was not commenting on Seuss and his work, but rather on an unrelated topic, making it more satire than parody.
First paragraph after the quote (that's the indented thing in italics, in case you aren't clear on that either)
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Re: Re: Re: Re:
"First paragraph after the quote (that's the indented thing in italics, in case you aren't clear on that either)"
Yes, yet you rattle on like there is some other justification for this stuff, and there just is not. One look at the picture tells me what "universe" the characters come from, and I feel right away that it might be official Seuss material. That's where it ends, because there is enough potential confusion.
You just don't get it, do you? It's satire, not parody, and it's misappropriation of the character set used for MANY Seuss books. It's not something you can win either way.
Why make a big long post about something that is quite so obviously against the law?
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I guess I'm just trying to underline his idiocy but you're right - I don't know why I bother. Nobody could do a better job at making him look stupid than he does himself.
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Oh, The People You Will Sue
Congratulations!
From here you'll go far.
After trials and tribulations
You've finally passed the Bar.
You spent years in Law School
Listening to every Law Scholar
You are not anyone's fool
You are now an IP Lawyer
Everything is new, it's a brand new day
Then reality hits and you start to moan
You have to figure out a way
To repay all those student loans
You fire up your 'puter and look around
You see gatekeepers who need savin'
Against the evil pirates who abound
And think to yourself. I'll be the next Righthaven!
Oh, The People You Will Sue
As the plan forms in your mind
You'll sue mothers and printers
You'll sue anyone you can find
You'll leave the net in splinters
You'll sue anyone who utters "Fair Use!"
and companies who use Safe Harbors
'cause in your mind that's all just abuse
And that's just for starters
Oh, The People You Will Sue
With patents and trademark abuses
You'll sue anyone who innovates
Or dares to produce something with uses
And every single company who creates
You'll file class action suits
For artists against labels, it's true
You'll work hard on these pursuits
Because no one gets the money, well, except you.
You've become an IP Lawyer
You knew what you were doing
There's infringers out there
So...get suing!
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What a shame.
But then the lawyers called me a crook.
I did not, will not, copy Seuss.
I would not, could not with a goose.
It's too bad it wasn't made.
It's good, at least, that I got paid.
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Re: What a shame.
Now there is nothing I can do.
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I do not like cease and desist, IP maximist.
I should not, will not, be called a crook.
I did not, will not, copy Seuss.
I would not, could not with fair use.
I do not like cease and desist.
I do not like it IP maximist.
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Re: I do not like cease and desist, IP maximist.
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more suess-like
That could be done now. Just include the C&D letter with the book and change the characters...
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Re: more suess-like
It's why so many pr0n companies can get away with parody sex tapes, because they are in fact parodies.
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Re: Re: more suess-like
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Re: Re: more suess-like
Ah, finally we get to TAM's true expertise - the porn industry. How's the new cam site going?
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Re: Re: Re: more suess-like
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Re: Re: Re: more suess-like
Marcus, you need to grow up child. You are a skinny ass white boy with few real talents except the ability to bitch. You have proven you have no talent, no skill for market, and no abilities to produce logic beyond eating the yule logs that Mike dumps on your face and recycle them.
So, if you want to play games, just remember: I am posting as an anonymous poster, and that is all you need to know. Trying to guess who I am (and failing I might add) sort of proves the point. You are a hopeless tard, and a narrow minded technology bigot on top of it.
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Re: Re: Re: Re: more suess-like
lol - wtf does me being skinny and white have to do with anything? You're really reaching now, buddy
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Re: Re: Re: Re: Re: more suess-like
I think it's just another great indication that you want to be what you are not, that's all.
Thanks for ignoring the rest of my comments. I am glad you accept your position as Mike's bidet.
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Re: Re: Re: Re: Re: Re: more suess-like
Er... what?
Thanks for ignoring the rest of my comments. I am glad you accept your position as Mike's bidet.
The vast majority of your comments say a lot more about you than they do about me. No need to respond to them.
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Re: Re: Re: Re: more suess-like
Someone who used to comment with the user name The Anti-Mike, but now seems to only comment as an Anonymous Coward.
http://www.techdirt.com/user/tam
Marcus, you need to grow up child. You are a skinny ass white boy with few real talents except the ability to bitch.
I am not Marcus, but I do have to say that is about the most childish way to tell someone to stop being childish. Just sayin'.
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Re: Re: Re: Re: Re: more suess-like
Marcus wants to think he knows something that he doesn't. The more he talks, the more he proves he is full of it.
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Forget the whole parody/satire/fair use thing, this is what makes me mad. People thinking that they're entitled to profit from the works of other people, ancestors or not. People thinking they can sit on copyrights they aren't using on the market. But that's exactly what our messed-up laws allow to happen, by making copyrights transferable, unconditional, and valid for 70 years after the author is dead and can't exploit it any more.
I think copyright should be subject to a "use it or lose it" rule like trademarks. Copyright is supposed to be an incentive to create. Fine then, if you want your copyright, you have to actively use it. No, enforcing is not the same as using.
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Re:
This reminds me of a suggestion I made in a comment on a different article a while back on patents. I think we need to apply the concept of adverse possession from physical property law to patents where someone who wants to produce a product but can't because someone else is just sitting on a patent without producing anything with it can challenge the ownership of the patent and be granted ownership of it. Not sure whether I agree with the concept being applied to copyright but it would certainly be an interesting concept to explore.
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I'm confused
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