18 December 2020

Oh, the Places You Won't Go (in the Library)

…if you enter a career in the law. Basically, if the Library of Congress call number begins with a "P," you won't go to that part of the library. That means, according to the Classification Outline provided by the LoC, "Language and Literature" works are right out. (Somewhat sarcastically but with more than a hint of truth, for lawyers the LoC alphabet ends at K; but that's an argument — no, a harsh criticism driven by the benefits of my classical and scientific education — for another time.)

And that leads to substantial problems when dealing with literary works. Even "children's" literature. Perhaps especially the works of one Theodore Geisel, which have over the years generated a lot of indefensibly wrong copyright law, including today's opinion (PDF) from the Ninth Circuit in Dr. Seuss Enters. v. ComicMix, LLC. Bluntly, the court got the definition of and operative characteristics of "parody" wrong, never considered the limitations of what is copyrightable in the target works, never engaged with the "process versus product" problem hinted at in, for example, PN1031 including such classic (if flawed) works as Harold Bloom, The Anxiety of Influence, or actually engaged with any evidence regarding substitutability in the marketplace (or the concept of noncongruent market segments that do not actually compete). The lawyers appear not to have helped very much.1 More to the point, the Ninth Circuit's refusal to accept that maybe — just maybe — 2Live Crew required not just distinction, but reconsideration, of the (flawed-and-arguably-wrong-when-issued-even-under-law-of-the-time) Krofft and Air Pirates and, more to the point, Dr. Juice decisions parallels the Second Circuit's refusal to reconsider a lot of its 1909 Act cases (many of which were equally wrong when decided). Perhaps worst of all, 2Live Crew's own analytic failures regarding "parody" and "satire" (and the relationship of either, or both, to the First Amendment) generated a deafening silence.

The critical flaw in the Ninth Circuit's opinion occurs quite early on, when it is describing the version of the context that appears in the record.

ComicMix does not dispute that it tried to copy portions of [the Seuss target work] Go! as accurately as possible. [A codefendant] urged the team to “keep to [Go!’s] sentiment” that “life is an adventure but it WILL be tough and there WILL be setbacks, and you should not despair of them.” As for the text of Boldly [the allegedly infringing work], Hauman created a side-by-side chart comparing the texts of Go! and Boldly in order to “match the structure of Go!.” Boldly also closely mimics many illustrations in Go!, as a result of what ComicMix called “slavish[] copy[ing] from Seuss.” In one instance, Templeton took “about seven hours” to copy a single illustration because he “painstakingly attempted to make” the illustration in Boldly “nearly identical” to its Seussian counterpart.

ComicMix, slip op. at 8–9 (boldface emphasis added, some bracketed text added for clarity). The fundamental problem here is that this opinion — as do almost all post-2Live Crew opinions on overt parodies2 — is confusing product and aspects of process, and particularly intermediate aspects of process in team efforts. Motivation and intermediate efforts are not relevant to the fact of fair use or infringement. They may be relevant to remedies, but we don't get to remedies until we've completed the infringement inquiry.3 This results, in part, because parody and satire necessarily partake of both "copyright" and "trademark" theories — they work (or not) based on allusion. And if there's one thing that lawyers, which includes judges, don't understand or use very well, it is allusion as a process of communicating meaning.4

What makes this opinion worse is that it relies upon C– literary analysis, see slip op. at 11–19, by ignoring the value and means of a change in context as the transformation. (Or, I suppose, you could just get a life.) The bolded passage in the quotation above reflects precisely this problem. Context doesn't just matter; it is the very basis for and means of allusion and transformation… in any sound literary analysis. Not, apparently, in legal analysis. A hypothetical may make this (disturbingly) clearer. Consider this, umm, video presentation:

and pretend for just a moment that it was not an authorized-by-the-rightsholder work. Under the rubric announced in the ComicMix opinion, Reynolds' work does not qualify as a "parody," and therefore not as fair use. Not of a "Match.com" commercial; not of or related to the Taylor Swift song; not of any of the allusions contained therein.

Ironically, on a straight "trademarkish" analysis — that is, the theory closest to actual allusion, requiring the least copying to be infringing — the defendants won (slip op. at 30–33). This by itself calls into question the copyright analysis, but that will take much more detail than one can throw into a blawg entry.

So, congratulations. You're everything we've come to expect from years of legal training. Now there's only one more thing left for today: An eye exam.

  1. I suppose now is the time to deal with "the parties." As anyone who has read this blawg over the years understands, I hold both Dr. Seuss Enterprises LLC and its counsel somewhere around minimal high regard, ethically and otherwise. On the other side, although I've casually known Mr Hauman (the principal of ComicMix LLC) for over two decades — and dealt with his nascent e-publisher at the very beginning, and hold the employer he had before that (and especially its successor in interest) in outright contempt — and have met Mr Gerrold once via one of my late clients, I have no professional or personal relationship with them. So I have no conflicts. Only disdain and disregard.
  2. As distinct from the post hoc rationalization variety, which is probably better characterized as "Damn, we'd better come up with a justification to consider this fair use now that we've been sued." This is the fundamental problem with the "transformative use" framework, but that's for a loooooooong law journal article that would not be publishable because many — perhaps most — of its references would come from the P, Q, and T sections of a good library, including journals ordinarily shelved there, that are foreign to lawyers and law libraries. Let alone law-journal editors doing cite checks.
  3. For an example that went much, much too far the other direction — or, at least, in an orthogonal direction — consider the Second Circuit's misbegotten opinion in Cariou and its progeny.

    Consider, for a moment, whether any of that evidence of "intent" would be relevant if the court had found that there was a "transformative" use of the target work that qualified as fair use. Consider the motivations in Augustan English satire, some of which is at the core of the First Amendment. More to the point, consider the concepts of "attempts" and "withdrawal from conspiracy" in criminal law… and ponder how mens rea analysis ended up in fair use, copyright, or the First Amendment at all. (Hint: Consider the part of the case the defendants in ComicMix purportedly won…)

  4. In alphabetical order by author, cf., e.g., Erich Auerbach, Mimesis: The Representation of Reality in Western Literature (1953 trans.); Mitchell W. Bloomfield, Allegory, Myth, and Symbol (1981); J. Peter Burkholder, All Made of Tunes: Charles Ives and the Uses of Musical Borrowing (1995); Janet Goff, Noh Drama and The Tale of Genji: The Art of Allusion in Fifteen Classical Plays (1991); John Hollander, Figure of Echo: A Mode of Allusion in Milton and After (1981); Douglas Kelly, Conspiracy of Allusion: Description, Rewriting, and Authorship From Macrobius to Medieval Romance (1999); Wolfgang E.H. Rudat, Mutual Commerce: Masters of Classical Allusion in English and American Literature (1985). I could go on for several pages longer just with stuff I'm already familiar with, especially when adding in the journals. Exemplars from actual literary works would be an even lengthier list; for the moment, consider whether Bored of the Rings (1969) fits in here anywhere… or, perhaps, Edmund Spenser, The Faerie Queen (1596 completed) and Miguel Saavedra de Cervantes, The Ingenious Gentleman Don Quixote of La Mancha (1605–15), both of which are simultaneously target and derivative works in this mode.