Comments on: Fair use cocaine lines and a donkey and elephant humping http://senlawoffice.com/exclusiverights/2008/12/fair-use-cocaine-lines-and-a-donkey-and-elephant-humping/ A copyright law blog covering litigation, policy and academia Tue, 07 Feb 2012 13:13:10 +0000 hourly 1 http://wordpress.org/?v=3.2.1 By: Jeffrey Harrison http://senlawoffice.com/exclusiverights/2008/12/fair-use-cocaine-lines-and-a-donkey-and-elephant-humping/comment-page-1/#comment-49582 Jeffrey Harrison Thu, 29 Apr 2010 16:38:44 +0000 http://www.exclusiverights.net/2008/12/fair-use-cocaine-lines-and-a-donkey-and-elephant-humping/#comment-49582 It seems clear to me that the Bush book fails the first three fair use tests. It is not a parody of Moon not does it transform it. It is commercial. It takes the entire book and the book is close to the heart of copyright. Market impact goes in favor of fair use. Are there cases in which market impact overcomes all the other steps? I am not sure but I do not think it should. When the only favorable thing is no market impact we have a pure case of free riding and the I think the author of the second work should get permission. Remember, pointing out the differences does not count in either the infringement decision or the fair use decision. It seems clear to me that the Bush book fails the first three fair use tests. It is not a parody of Moon not does it transform it. It is commercial. It takes the entire book and the book is close to the heart of copyright. Market impact goes in favor of fair use. Are there cases in which market impact overcomes all the other steps? I am not sure but I do not think it should. When the only favorable thing is no market impact we have a pure case of free riding and the I think the author of the second work should get permission. Remember, pointing out the differences does not count in either the infringement decision or the fair use decision.

]]> By: Woberet Stumpasouras http://senlawoffice.com/exclusiverights/2008/12/fair-use-cocaine-lines-and-a-donkey-and-elephant-humping/comment-page-1/#comment-40282 Woberet Stumpasouras Wed, 25 Nov 2009 02:57:58 +0000 http://www.exclusiverights.net/2008/12/fair-use-cocaine-lines-and-a-donkey-and-elephant-humping/#comment-40282 I was just wanting to say that anything that has to do with bush and donkeys is my cup tea I was just wanting to say that anything that has to do with bush and donkeys is my cup tea

]]> By: admin http://senlawoffice.com/exclusiverights/2008/12/fair-use-cocaine-lines-and-a-donkey-and-elephant-humping/comment-page-1/#comment-29549 admin Thu, 12 Feb 2009 22:24:26 +0000 http://www.exclusiverights.net/2008/12/fair-use-cocaine-lines-and-a-donkey-and-elephant-humping/#comment-29549 J: Thanks for your comment. I hope you will continue to chime in as you see fit. In regards to your question about The Cat NOT in the Hat!, I hope you didn't interpret my post as arguing that Goodnight Bush wouldn't be found infringing. I was merely trying to draw attention to the fact that the authors of the book may have had legal motivations to include the adult material. I think the book might have been a player in the children's political books market (see Why Mommy is a Democrat) if they hadn't included the illicit material, so the inclusion very well may have been purposeful; I find it interesting for that reason alone. But if were to address the Dr. Seuss decision for a moment, I'm not sure the decision holds water. The 9th Circuit's citation to Roger v. Koons for the proposition that a parody must target the work it appropriates from to be found non-infringing is directly at odds with Souter's opinion in Campbell. (see fn 14.) Also the court chose to ignore a market effect evaluation because counsel hadn't presented evidence on the subject. (It was a motion for preliminary injunction.) It seems to me like the Court had made up its mind, and was going to find a way to rule in favor of the plaintiffs. This could, of course, happen again. Fair use is standards based. But I don't see it as particularly strong precedent given how far it broke with Campbell and its procedural posture. J:

Thanks for your comment. I hope you will continue to chime in as you see fit.

In regards to your question about The Cat NOT in the Hat!, I hope you didn’t interpret my post as arguing that Goodnight Bush wouldn’t be found infringing. I was merely trying to draw attention to the fact that the authors of the book may have had legal motivations to include the adult material. I think the book might have been a player in the children’s political books market (see Why Mommy is a Democrat) if they hadn’t included the illicit material, so the inclusion very well may have been purposeful; I find it interesting for that reason alone.

But if were to address the Dr. Seuss decision for a moment, I’m not sure the decision holds water. The 9th Circuit’s citation to Roger v. Koons for the proposition that a parody must target the work it appropriates from to be found non-infringing is directly at odds with Souter’s opinion in Campbell. (see fn 14.)

Also the court chose to ignore a market effect evaluation because counsel hadn’t presented evidence on the subject. (It was a motion for preliminary injunction.) It seems to me like the Court had made up its mind, and was going to find a way to rule in favor of the plaintiffs.

This could, of course, happen again. Fair use is standards based. But I don’t see it as particularly strong precedent given how far it broke with Campbell and its procedural posture.

]]> By: J. Renick http://senlawoffice.com/exclusiverights/2008/12/fair-use-cocaine-lines-and-a-donkey-and-elephant-humping/comment-page-1/#comment-29548 J. Renick Thu, 12 Feb 2009 20:20:23 +0000 http://www.exclusiverights.net/2008/12/fair-use-cocaine-lines-and-a-donkey-and-elephant-humping/#comment-29548 Hi- I also really enjoyed this book but I just had a quick question as to how the Dr. Seuss v. Penguin case would be related to or ruled out of your analysis that this book falls within the category of a lawful fair use parody and is not an impermissible use of someone else's copyrighted work to satirize an unrelated issue? Thanks. ~J. Renick Hi-

I also really enjoyed this book but I just had a quick question as to how the Dr. Seuss v. Penguin case would be related to or ruled out of your analysis that this book falls within the category of a lawful fair use parody and is not an impermissible use of someone else’s copyrighted work to satirize an unrelated issue? Thanks.

~J. Renick

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