USE OF UNLICENSED CLIP IN COMEDY CENTRAL PROGRAM IS FAIR USE
Before turning to an examination of the four fair use factors applicable in a copyright infringement claim, the Court notes that an advertisement which uses a copyrighted work does not necessarily infringe that copyright if the product that it advertises constitutes a fair use of the copyrighted work. Further, an advertisement itself may itself constitute a fair use.
The Court then examines defendants' claim that the use of plaintiff's material was a fair use under the Copyright Act. The Act provides that the reproduction of a copyrighted work is not an infringement of copyright if it is used for purposes such as criticism, comment, news reporting, teaching, scholarship or research. In determining whether the work has been used for such a purpose, the statute lists four non-exclusive factors to consider: (i) the purpose and character of the use, (ii) the nature of the copyrighted work, (iii) the amount and substantiality of the portion used, and (iv) the effect of the use upon the potential market for or value of the copyrighted work .
The decision considers two elements in its analysis of the first factor: whether such use is of a commercial nature or is for non-profit educational purposes and whether such use is transformative in nature .
As to the former, although the Court notes that, in general, commercial use of a work will weigh against a finding of fair use, the Supreme Court in the often-cited decision Campbell v. Acuff-Rose Music, Inc.2 discounted the force of commerciality in applying a fair use analysis, noting that "No man but a blockhead ever wrote except for money."
According to the Court, more important to an analysis of the first factor than whether the use is of a commercial nature is whether the use of the original work is "transformative" in nature, i.e. whether the copying work merely supplants the original or, instead, adds something new, with a further purpose or different character, altering the first with new expression, meaning or message.
One such transformative use that typically is found to be fair use is a parody, characterized in Campbell as an attempt to mimic an original, expressive and usually famous work. Defendants argue that the use of clips from Plaintiff's Program is properly analyzed as a parody merely because of the underlying format of "The Daily Show" which mimics news programs. The Court notes that, unlike a parody, the use in this case of plaintiff's clips did not involve an altered imitation of a famous work, but the presentation of an obscure original work in a mocking context. The only similarity between a parody and the work here at issue is the element of ridicule.
Nevertheless, it is precisely this common element of ridicule that matters to an analysis of the first factor of the fair use inquiry. The only significance in deeming a work as a parody is the concomitant determination that is contains elements of commentary and criticism..."
"In presenting Plaintiff's Program, defendants sought to critically examine the quality of plaintiff's "Public Access" television show."Once again, The Daily Show was parodying/criticizing the work they were copying. I don't believe they would have been able to use other copyrighted materials in their parody/criticism of "The $andy Kane Comedy Show." e.g. they could not have played Frank Sinatra (a more palettable example than Eminem) in the background without permission from the copyright owner.