How’s that for a drudge headline?

I just received the greatest Christmas gift evah’, a copy of Goodnight Bush, by Erich Origen & Gan Golan. The book is dork-candy for anyone obsessed with politics and copyright. (Thanks Nancy!)

Anyway, Goodnight Bush presents itself as a parody of the children’s classic Goodnight Moon. Instead of a child saying “goodnight” to everything around (“Goodnight Cow. Goodnight Moon. Goodnight cow jumping over the moon. Goodnight light, a red balloon . . .”), Goodnight Bush features our President saying “goodnight” to legal constructs (“Goodnight Constitution. Goodnight evolution”).

Little, Brown & Co., the publisher of Goodnight Bush, takes a number of steps to make it more likely that, should they be sued for copyright infringement, their work would be shielded from liability under fair use. The publisher placed labels on the front and back cover (“This book is a parody and has not been prepared, approved, or authorized by the creators of Goodnight Moon or their heirs or representatives”) and an artistic explanation on the last page that details how Goodnight Bush targets Goodnight Moon.

Of more interest to me, though, is how the authors may have designed the pictures in the book to bolster a fair use claim. This brings us, once again, to my favorite topic: how copyright shapes the content of artistic works. In this case, cocaine lines and a stuffed donkey and elephant humping.

In Goodnight Bush, our President is shown redying for sleep in his bedroom. As the story progresses, you see Mr. Bush in the same room with minor deatail alterations. When we first visit President Bush, there are five lines of cocaine on his nightstand. Each time we revisit the scene, there is one less line, until they’re all gone on the third to last page (“Goodnight failures everywhere”).

Likewise, the stuffed animals are shown in different poses. First the elephant and the donkey are standing alongside each other (above). Then the elephant is humping the donkey. Toward the end of the book, the donkey is shown humping the elephant — ostensibly portraying the Democratic Party’s success in the 2006 election cycle.

Let’s take a step back for a moment to review why these two inclusions bolster the authors fair use claim. As a threshold question, to run a fair use analysis, a court would first have to decide whether Goodnight Bush deserved to be evaluated as a parody. The test for parody, as stated by the Supreme Court in Campbell v. Acuff Rose Music, is “whether a parodic character may reasonably be perceived.” For the purposes of this diary, we’ll assume that a court would find Goodnight Bush is a parody.

Once the threshold question of whether a work is a parody is satisfied, it would shape a court’s evaluation of the four fair use factors: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantially of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.

To shoot through the factors quickly, the (1) authors’ purpose for Goodnight Bush is commercial, but as the Supreme Court set forward in Campbell, the purpose of a work isn’t dispositive and doesn’t preclude an evaluation using the other three factors. The (2) nature of the copyrighted work isn’t “likely to help much in separating the fair use sheep from the infringing goats in a parody case, since parodies almost invariably copy publicly known, expressive works.”

In terms of (3) the amount and substantiality, Goodnight Bush mimics Goodnight Moon closely, but, as the Court described in Campbell, parody by necessity must incorporate a substantial amount of the preceding work. “When parody takes aim at a particular original work, the parody must be able to “conjure up” at least enough of that original to make the object of its critical wit recognizable.

So, the factor that is likely to be given strong weight in a potential parody case such as this is (4) the effect of the use upon the potential market for or value of the copyrighted work. As the Supreme Court noted in Campbell, the only harm that we are concerned about in a parody fair use evaluation is “the harm of market substitution. The fact that a parody may impair the market for derivative uses by the very effectiveness of its critical commentary is no more relevant under copyright than the like threat to the original market.”

The less likely Goodnight Bush is to act as a market substitute for Goodnight Moon, the more likely it would be found to be shielded from liability. So how could the authors make sure that the book was completely unsuitable for the Goodnight Moon’s target audience? How could they make sure that Goodnight Bush couldn’t be used by parents to read to their children?

Cocaine lines and stuffed animals humping. What a funny, strange world we live in.

As an end note, the Supreme Court in Campbell explicitly stated that courts shouldn’t evaluate whether “a parody is in good taste or bad” when running a fair use analysis. Quoting Holmes:

[I]t would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of [a work], outside of the narrowest and most obvious limits. At the one extreme some works of genius would be sure to miss appreciation. Their very novelty would make them repulsive until the public had learned the new language in which their author spoke.” Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 251 (1903) (circus posters have copyright protection).