{"id":3301,"date":"2020-06-05T11:27:24","date_gmt":"2020-06-05T11:27:24","guid":{"rendered":"https:\/\/www.dekuzu.com\/en\/?p=3301"},"modified":"2020-06-04T11:28:31","modified_gmt":"2020-06-04T11:28:31","slug":"transformative-new-work","status":"publish","type":"post","link":"https:\/\/www.dekuzu.com\/en\/2020\/06\/transformative-new-work.html","title":{"rendered":"The more transformative the new work, the less significance of other factors, like commercialism"},"content":{"rendered":"\n

Tamita Brown, Glen S. Chapman, and Jason T. Chapman (\u201cPlaintiffs\u201d) are musicians who created the song Fish Sticks n\u2019 Tater Tots (the \u201cSong). In 2017, a documentary film titled Burlesque: Heart of the Glitter Tribe (the \u201cFilm\u201d) depicts a group of burlesque dancers in Portland, Oregon, one of whom incorporated the Song in a performance.<\/span><\/p>\n

<\/span><\/p>\n

Plaintiffs wrote, arranged, and recorded the Song in 2011. The Song, created for children, describes a student\u2019s journey from her classroom to her school cafeteria to eat fish sticks and tater tots for lunch. They were granted a U.S. Copyright Registration for the Song. On March 3, 2017, the Film was released on Defendants\u2019 websites.<\/span><\/p>\n

It chronicles the stories of a group of burlesque dancers in Portland, Oregon through interviews, backstage preparations, and on-stage performances. In one scene, a dancer, who goes by the stage name Babs Jamboree, performs an act in a food-themed show centered on the concept of a \u201creverse mermaid,\u201d which, in her telling, is a creature with the head of a fish and the legs of a woman.<\/span><\/p>\n

During the performance, Jamboree steps behind a sign labeled \u201chot oil\u201d and emerges, having removed her fish head and changed into brown leggings to appear as though she has been transformed into fish sticks.<\/span><\/p>\n

During the performance, eight seconds of the Song plays, consisting of the lyrics \u201cfish sticks n\u2019 tater tots\u201d sung by Brown a total of five times. The performance continues for approximately 20 more seconds with different songs in the background. The Film is available on Defendants\u2019 websites for customers to purchase, rent, or stream.<\/span><\/p>\n

Plaintiffs filed lawsuit, accusing Defendants of directly infringing their right to publicly perform their work; directly infringing their right to reproduce their copyrighted work; and of contributory and vicarious copyright infringement, as well as inducement of copyright infringement, of their rights of reproduction and public performance. Defendants jointly filed the motion to dismiss the claims.<\/span><\/p>\n

Defendants did not dispute the validity of Plaintiffs\u2019 copyright but argue that their use of the Song is fair use, which is a complete defense to direct copyright infringement and, as a result, to any claims that are contingent on the direct infringement.<\/span><\/p>\n

Fair Use Defense to Direct Copyright Infringement<\/strong><\/span><\/h2>\n

Factor One: Purpose and Character<\/strong><\/span><\/h3>\n

At the core of this inquiry is whether the secondary use is transformative \u2014 understood as communicating a \u201cfurther purpose or different character, altering the first with new expression, meaning or message.\u201d Thus, a transformative work is \u201cone that serves a new and different function from the original work and is not a substitute for it.\u201d Yet, a finding of commercial use is not dispositive, as \u201cthe more transformative the new work, the less significance of other factors, like commercialism.\u201d<\/span><\/p>\n

Plaintiffs argued that \u201cwhen there is no alteration from the original there can be no fair use.\u201d While Defendants do not alter the Song and reference its concept of \u201cfish sticks,\u201d the performance serves a \u201cnew and different function\u201d from the Song.<\/span><\/p>\n

Indeed, even Plaintiffs repeatedly note the differences in purpose and character between the performance and the Song: the Song was created \u201cwith children being the intended audience,\u201d whereas the Film is \u201ccentered on strippers\u201d and uses the Song \u201cwhile a scantily clad woman\u2026 begins to perform a strip dance routine.\u201d<\/span><\/p>\n

These descriptions only confirm that Defendants\u2019 use transforms the Song: Whereas the Song communicates a light-hearted children\u2019s story about a student looking forward to lunch in the school cafeteria, the Film depicts decidedly mature themes that portray fish sticks not as a lunch food, but as a component of a \u201creverse mermaid.\u201d<\/span><\/p>\n

As to whether or not the Film has a commercial purpose, Defendants argued that their status as a commercial entity is irrelevant because the Film is transformative and is a documentary, and accordingly, offers criticism or commentary. The court was of opinion that the commercial nature of a work is not determinative of the first factor analysis.<\/span><\/p>\n

Factor Two: Nature of the Copyrighted Work<\/strong><\/span><\/h4>\n

The \u201csecond factor may be of limited usefulness where the creative work of art is being used for a transformative purpose.\u201d Plaintiffs argued that the Song is intended for creative expression for public dissemination and that this factor weighs in their favor because Defendants have not provided a persuasive justification for their use. Notwithstanding Plaintiffs\u2019 characterization of the Song, the transformative nature of the Film renders the second factor \u201cof limited usefulness.\u201d Thus, the court decided that the second factor is neutral.<\/span><\/p>\n

Factor three: Amount and Substantiality<\/strong><\/span><\/h5>\n

The factor \u201ccalls for thought not only about the quantity of the materials used, but about their quality and importance, too.\u201d The quantitative inquiry considers whether the secondary use \u201cemploys more of the copyrighted work than is necessary,\u201d whereas the qualitative inquiry asks whether the use was \u201cexcessive in relation to any valid purposes asserted under the first factor.\u201d<\/span><\/p>\n

If the use qualitatively amounts to \u201cthe heart\u201d of the original work, although quantitatively minimal, the use could be considered substantial; however, use of \u201cthe heart\u201d of the copyrighted work is not dispositive. Indeed, when the work is transformative, \u201cthe secondary use must be permitted to conjure up at least enough of the original to fulfill its transformative purpose.\u201d<\/span><\/p>\n

Quantitatively, the Film uses eight seconds of the Song\u2019s 190 seconds, or 4.21 percent of the Song. Plaintiffs argued that the segment used in the Film represents the \u201cheart\u201d of the Song, noting that the cited passage is the chorus that gives the Song its name and is repeated throughout the Song.<\/span><\/p>\n

Where the heart of the copyrighted work is at the core of the transformative character, use of the heart is permissible \u201cto fulfill its transformative purpose.\u201d Thus, use of the \u201cheart\u201d of a work is permissible when it is necessary to achieve its transformation. Because the portion of the Song used by Defendants is neither quantitively nor qualitatively excessive, the third factor weighs in favor of a finding of fair use.<\/span><\/p>\n

Factor Four: Effect Upon the Potential Market or Value<\/strong><\/span><\/h6>\n

The fourth factor considers \u201cthe effect of the secondary use upon the potential market for or value of the copyrighted work.\u201d This factor is \u201cundoubtedly the single most important element of fair use.\u201d The critical inquiry is whether the secondary use \u201cusurps\u201d the market of the original, \u201cwhere the infringer\u2019s target audience and the nature of the infringing content is the same as the original.\u201d<\/span><\/p>\n

In such instances, the secondary use competes with the original \u201cso as to deprive the rights holder of significant revenues because of the likelihood that potential purchasers may opt to acquire the copy in preference to the original.\u201d<\/span><\/p>\n

Plaintiffs repeatedly acknowledged that the Film targets a different audience from their own, noting that they \u201ccreated the Song with children being the intended audience,\u201d whereas the Film is \u201ccentered on strippers\u201d and is used \u201cduring a scene in which a woman dances to the Song while removing her clothing.\u201d<\/span><\/p>\n

As the Film\u2019s use is transformative of the original, the potential market \u2013 children or those who would acquire the Song on behalf of children \u2013 would not \u201copt to acquire the copy\u201d of a limited eight seconds of the Song \u201cin preference to the original.\u201d Put another way, it is unlikely that parents would purchase copies of the film for their minor children so that they could hear the excerpt of the Song in the Film.<\/span><\/p>\n

Plaintiffs also argue that if such use of the Song were to become widespread, that is, \u201cwithout first obtaining a license from them,\u201d Plaintiffs would potentially be precluded \u201cfrom participating in at least two entire segments of the music industry,\u201d which they identify as \u201cmusic for an individual to at least appear to dance to, and as background music\u201d in films.<\/span><\/p>\n

Yet, \u201cnot every effect on potential licensing revenues enters the analysis under the fourth factor,\u201d and a copyright holder \u201chas no right to demand that users take a license unless the use that would be made is one that would otherwise infringe an exclusive right.\u201d Moreover, only impacts on \u201cpotential licensing revenues for traditional, reasonable, or likely to be developed markets should be legally cognizable.\u201d<\/span><\/p>\n

Here, it is unreasonable to consider the potential uses named by Plaintiffs, which were unalleged in their complaint and only provided in response to Defendants\u2019 motion. Because Defendants met their burden by showing that the Film\u2019s secondary use would not usurp that of the original, other similarly hypothetical uses would equally not deprive them of prospective audiences. Thus, the fourth factor weighs in favor of Defendants.<\/span><\/p>\n

Because the first, third, and fourth factors weigh in favor of Defendants, and the second factor is merely neutral, their alleged use of the Song is fair. Accordingly, Plaintiffs\u2019 claims of direct copyright infringement by public performance and reproduction fail to meet the pleading standard.<\/span><\/p>\n

Contributory, Vicarious, and Inducement of Copyright Infringement<\/u><\/strong><\/span><\/p>\n

Plaintiffs also asserted claims for inducement of copyright infringement, contributory copyright infringement, and vicarious copyright infringement in violation of their exclusive rights of reproduction and public performance.<\/span><\/p>\n

However, there can be no contributory, vicarious, or inducement of infringement where no direct infringement exists. Because Defendants have successfully invoked the doctrine of fair use, no underlying direct infringement exists.<\/span><\/p>\n

For the reasons stated above, the Defendants\u2019 motion to dismiss and for judgement on the pleadings was GRANTED<\/a> with prejudice.<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"

At the core is whether the secondary use is transformative \u2014 understood as communicating a \u201cfurther purpose or different character, altering the first<\/p>\n

Continue readingThe more transformative the new work, the less significance of other factors, like commercialism<\/span><\/a><\/div>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[22,5,25,31,6,39,18,17],"tags":[],"class_list":["post-3301","post","type-post","status-publish","format-standard","hentry","category-fair-use","category-copyright","category-distribution","category-exceptions-and-limitations","category-intellectual-property","category-interpretation","category-law","category-litigation","entry"],"_links":{"self":[{"href":"https:\/\/www.dekuzu.com\/en\/wp-json\/wp\/v2\/posts\/3301","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.dekuzu.com\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.dekuzu.com\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.dekuzu.com\/en\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.dekuzu.com\/en\/wp-json\/wp\/v2\/comments?post=3301"}],"version-history":[{"count":1,"href":"https:\/\/www.dekuzu.com\/en\/wp-json\/wp\/v2\/posts\/3301\/revisions"}],"predecessor-version":[{"id":3302,"href":"https:\/\/www.dekuzu.com\/en\/wp-json\/wp\/v2\/posts\/3301\/revisions\/3302"}],"wp:attachment":[{"href":"https:\/\/www.dekuzu.com\/en\/wp-json\/wp\/v2\/media?parent=3301"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.dekuzu.com\/en\/wp-json\/wp\/v2\/categories?post=3301"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.dekuzu.com\/en\/wp-json\/wp\/v2\/tags?post=3301"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}