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Legal Commentary: Prawfs
By Dan Markel, Ethan Leib, Rick Garnett, Matt Bodie, Paul Horwitz , Steve Vladeck, and Orly Lobel
Two years ago that seem like two decades, I wrote a Prawfs post about the Nietzsche Family Circus, then the internet fad du jour, and still a phenomenon that gets linked on blogs worldwide daily (so its creators tell me). The present-day incarnation of the NFC is Garfield Minus Garfield (?G-G? for short), a site that takes Garfield cartoons and removes from them their protagonist feline, leaving only the cat?s loser owner, Jon. The result is astounding; all of a sudden, an unfunny, dated comic strip becomes a dark (and hilarious) feature about a lonely, possibly insane man. (NB: there is another variant of G-G that predated it, and which leaves Garfield in but eliminates his thought-dialogue. I think the latter is actually funnier. See if you agree.) Does this have anything to do with law? I actually think so. Three thoughts below the fold.
First, however brilliant G-G may be, it?s clearly infringement. The refurbished strips reproduce most of a copyrighted graphical work, and the fact that they aren?t complete reproductions can?t save them. G-G?s likely answer to this is that the infringement is defensible via the fair use doctrine, and by my lights this argument is a clear winner. G-G foundationally transforms Garfield from being about the lazy cat?s mediocre wisecracks to a sad tale about Jon?s social isolation; if that?s not transformative, I don?t know what is. Nor does G-G supplant the market for the original strip; if anything, it?s revived interest in traditional Garfield, and the comic strip is now looking to partner with the website. Looked at in another light, G-G almost certainly falls into the favored category of parody as defined by the Supreme Court in Campbell v. Acuff-Rose, 510 U.S. 569 (1994). The Court held there that parodies (derivative works that mock the original) tend to be fair uses, while satires (derivative works that use the original as a vehicle to mock something else) tend not to be. The parody/satire has few if any supporters in the academy, but I think the best way to understand it is in terms of necessity. Parodying a work requires that you refer to and incorporate part of it (you can?t, for example, make fun of the Garfield comic strip without using characters from the strip itself). But satirizing some social phenomenon using a popular but unrelated work doesn?t require the unlicensed infringement of the latter (hence courts have rejected, e.g., a parody of the O.J. trial expressed by means of a ?Cat in the Hat? theme).
Second is a descriptive point about the peculiar way in which G-G is transformative. Most fair uses alter the original by blending it with material of the user?s creation. G-G is different in that it is purely subtractive, changing the original only by taking away from it (consider also in this vein ?The Phantom Edit?, a modified version of ?The Phantom Menace? that removed references to the awful Jar-Jar Binks character). The only litigated example I can think of this kind of subtractive fair use was the CleanFlicks case from a few years ago, a challenge to a company that offered subscribers versions of feature films scrubbed of possibly offensive content. CleanFlicks lost that one because (among other things) the sanitized versions of the films were held insufficiently transformative to support a fair use defense. G-G is clearly more transformative; it changes the entire tone and content of the Garfield strip, while the scrubbed CleanFlicks films were much the same save for an excised F-bomb or exposed boob here and there. Still, copyright law tends to have a fixation on originality (horrible doctrinal pun not intended), which is usually equated with the addition of some material that is generated by the author. Whether it?s an author trying to show that his work meets the constitutional standard of originality, or a second comer seeking to show that his creation amounts to a derivative work, courts typically require some quantum of added material in order to find a work original. See, e.g., Lee v. A.R.T. Co., 125 F.3d 580 (7th Cir. 1997). But as G-G illustrates, adding original material is not the sine qua non of creativity; one can create simply by removing. G-G, and the idea of subtractive fair use (or, I suppose, subtractive creation more generally), complicates our familiar assumptions about what originality means, or at least about what kind of evidence we should rely on to find that it is (or is not) present.
Finally, if this is clearly infringement, why hasn?t the creator of (and owner of copyright in) the Garfield strip made more of a stink about it? Back in the prehistoric days of the internet (read: late 90s), there was a similar feature called the Dysfunctional Family Circus that took Bil Keane?s wholesome cartoon and changed out the captions to make the overall effect perverse (and, again, hilarious). Keane and the company that syndicated the Family Circus came down hard on the DFC with threats of litigation, and ultimately the site shut down. But more recently, creators seem to react differently to online recastings of their work. George Lucas?the same man whose production company sued advertisers for using the term ?Star Wars? to refer to the Strategic Defense Initiative in the late 80s?gave his enthusiastic blessing to ?The Phantom Edit?. And Jim Davis too has come out and extolled the virtues of G-G, even as it pokes more than a little fun at the Garfield strip itself. So could it be that owners of copyrighted works are eventually taking less of a hard-line against this particular kind of conduct, finding that the reputation and litigation costs of fighting it aren?t worth the candle? (They certainly aren?t in more traditional licensing settings, as Prince?s suit against the mom who posted a YouTube video of her baby dancing to ?Let?s Go Crazy? illustrates.) Just a few data points, but still I?d like to believe that owner/user relations are moving in that direction.