"Fairest of Them All" and Other Fairy Tales of Fair Use

Article excerpt

I

INTRODUCTION

Once upon a time, in a happy land, courts decided which usage constituted fair use in copyright cases, and justice prevailed throughout the realm. Then the Royal Council ("Congress") imported something from beyond the sea called "codification." Henceforward, the Council proclaimed, the law-books would spell out if usage were fair or unfair in four pellucid factors. (1) The Wisest Men of the Kingdom ("Supreme Court") declared that the result in any given case would depend on all four of the factors. (2) The Copyright Specialists ("Second Circuit") added, "[b]ecause this is not a mechanical determination, a party need not 'shut-out' her opponent on the four factor tally to prevail," (3) to which Soothsayers embroidered that if nonetheless "she does so, victory on the fair use playing field is assured." (4) But these are only fairy tales. (5)

II

FLOSSING AND TRANSUBSTANTIATION

David Lange's foundation paper contains language that usefully serves as the launching pad for my own analysis:

In short, appropriation flourishes. The copyright industries concede privately that it cannot be eliminated in individual cases unless a massive effort at brainwashing should persuade an entire generation of primary school children to accept the main tenets of copyright into their personal belief systems and then to hold them there and act upon them, along with such other items of prescribed doctrine as flossing and transubstantiation. (6)

The final language struck responsive chords for me, given recent copyright cases I have handled in the domains, respectively, of flossing and transubstantiation.

A few years back, I participated in a case before the Court of Appeals for the Second Circuit, defending Colgate-Palmolive in a case that Procter & Gamble, the maker of Crest, brought against it. (7) When Colgate entered the very lucrative Chinese market, it aired a television commercial showing two eggs: one bathed in fluoride, the other not. (8) After sitting overnight, the egg removed from the fluoride is tapped, and found to be solid; the untreated egg, by contrast, cannot withstand a tap and breaks. So with your teeth, Colgate's ad demonstrated.

But Crest was not buying. In preparing for the case, I reviewed a series of toothpaste commercials going back to the 1960s. Crest had done an earlier ad for the Chilean market actualizing a similar fluoride experiment. I compared the two ads. The one did not look much like the other: one guy was wearing a serape, the other was eating with chopsticks; one commercial was narrated in Spanish, the other in Mandarin. But both did illustrate how putting an egg in fluoride protects it against decay, and why the viewer should go out and buy crate-loads of toothpaste immediately.

Procter & Gamble Co. v. Colgate-Palmolive Co. illustrates the idea--expression dichotomy in copyright law. Our client's brief argued extensively that such similarity as existed between Crest's and Colgate's advertisements lay in the unprotectable realm, and did not cross the threshold to becoming substantial similarity in expression. Our client ultimately prevailed in the Second Circuit, although on the alternative basis that Colgate independently created the particular commercial at issue, rather than copying it from Crest. (9)

The other case that comes to mind unfolded earlier this year: I litigated the copyright renewal status of The Urantia Book, a 2,000-plus-page occult book whose devotees believe it was authored, as the tome itself declares, in part by the Archangels of Nebadon, in part by the Corps of Superuniverse Functionaries, with interstitial amendments by the Thought Adjuster, and so on. (10) The Urantia Foundation registered the book as a composite work, a category of the Copyright Act that applies to something to which a great number of individuals contributed, such as an encyclopedia. (11) Both parties to the litigation believed The Urantia Book to be a composite work, because they accepted that it was written by the Archangels of the Nebadon, the Corps of Superuniverse Functionaries et al. …