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Family Guy pratfall

By Rebecca Tushnet

Arthur Metrano sued Fox over a Family Guy episode that had Jesus imitating his comedy act. David Fagundes posts on Prawfsblog about the dubious analysis in the recent opinion rejecting a 12(b)(6) motion to dismiss based on fair use. David nails it:

the Family Guy clip in Burnett actually depicted Carol Burnett, while the clip in Metrano showed someone else (Jesus) performing Metrano?s act. This probably made the reference to Burnett more obvious, and one can certainly imagine that many viewers did not understand or know about Art Metrano?s act when they saw the Jesus scene in Stewie. Nevertheless, this strikes me as a distinction without a difference. The district court concludes that the only mockery at issue in the scene was the creators? poking fun at Jesus? ability to work miracles. But the scene could not have effectively communicated the message that Jesus was "overrated" unless what He was doing was lame and unimpressive (hence the vacant expressions of the audience members who watch Jesus perform the act), and that means that the scene also had to communicate that Metrano?s act was subpar.

The real problem here, of course, is that some courts misread Campbell to elevate parody over all other forms of transformativeness. (It's invited error: sorry, Justice Souter, but that satire/parody distinction is way more trouble than it's worth.) The Second Circuit, in Blanch v. Koons and Dorling Kindersley, went a long way towards fixing that problem, but unfortunately not everyone has caught up. The Ninth Circuit cases that should establish the same principle in the Hollywood Circuit are search engine-based, finding transformativeness in large-scale copying, and thus courts assessing individual reuses can overlook their importance.

Thanks to David for the heads-up.

Full post as published by 43(B)log on July 20, 2009 (boomark / email).