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S.D.N.Y Judge Deborah A. Batts issued an interesting decision yesterday that addressed a caricature of the children’s song “When You Wish Upon a Star.”

Background:

Fox created and produced the show “Family Guy.”  One of the episodes, “When You Wish Upon a Weinstein,” lampooned Peter, the show’s father character, for believing in racial stereotypes about Jewish people.  The episode featured a song “I Need a Jew” set to the music of “When You Wish Upon a Star.”  Fox requested permission from Bourne & Co., the song’s publisher, but was rebuffed.

Bourne brought suit for infringement alleging that “I Need a Jew” “consist[ed] of of a thinly-veiled copy of the music ‘When You Wish Upon a Star’ coupled with anti-Semitic lyrics.”  Fox moved to dismiss.  The parties agreed that the work would be infringing sans fair use.  But there was dispute, which Judge Batts for purposes of the motion resolved in favor of Bourne, over whether “When You Wish Upon a Star” was associated with Walt Disney and his namesake corporation, and whether Disney’s rumored anti-Semitism was a part of the “popular lore” surrounding the Walt Disney persona.

Satire v. Parody:

Fox sought to justify its use as parody in two ways:

1) as a comment on the “saccharine sweet,” “innocent” and “wholesome” world view presented in and represented by “When You Wish Upon a Star,” and 2) by evoking “the song most associated with Walt Disney and his company” Commenting “on the song while simultaneously making a sharp point about Walt Disney’s reputed anti-Semitism”

Bourne argued that Fox only commented on racism and bigotry and not on the song “When You Wish Upon a Star” itself, which Judge Batts fiercely rejected:

Defendants’ use of “When You Wish Upon a Star” calls to mind a warm and fuzzy view that is ultimately nonsense; wishing upon a star does not, in fact, make one’s dreams come true. By pairing Peter’s “positive,” through racist, stereotypes of Jewish people with the fairy tale world-view, “I Need a Jew “comments both on the original work’s fantasy of stardust and magic, as well as Peter’s fantasy of the “superiority” of Jews. The song can be “reasonably perceived” to be commenting that any categorical view of a race of people is childish and simplistic, just like wishing upon a star.

Of particular note, Judge Batts absolved Fox of the need to show that the public equated “When You Wish Upon a Star” with Disney or that the public associated Walt Disney with anti-Semitism.  Judge Batts found that, since a parody doesn’t have to be effective to be considered a fair use, a court only needs to find that a parodic character is “reasonably perceived.”

Plaintiffs argue that the evidence fails to support Defendants’ claim that they intended in the Episode at issue to comment on Walt Disney’s purported anti-Semitism. First, Plaintiff argues that although “When You Wish Upon a Star” ” was sometimes used as a theme song . . . by the Walt Disney Company” Bourne “specifically refused to admit that their song was associated in the minds of the public with the Disney Company or was in any way associated with Walt Disney individually or personally, and further refused to admit that the public associates the Disney Company with Walt Disney personally.” Further , Plaintiff argues that Defendants have provided “no admissible evidence that the public actually believes Mr. Disney was an anti-Semite.”

However, Plaintiff misapprehends the nature of the inquiry in making both of these arguments. Defendants need to prove neither that the public associates the song with Walt Disney individually or personally nor “actually believes” Walt Disney was an anti-Semite; Defendants need only demonstrate that “a pardoic character may be reasonably perceived” Campbell, 510 U.S. at 582-583. Further, the Supreme Court has held that the law protects parodies even when the fail to speak clearly. Campbell, at 582 quoting Yankee Publishing Inc. v. News America Publishing, Inc. 809 F.Supp. 267 280 (S.D.N.Y. 1992) (Leval, J.) (noting “First Amendment protections do not apply only to those who speak clearly, whose jokes are funny, and whose parodies succeed”). Therefore , even if Defendants intended to make an “inside joke” about Walt Disney’s alleged anti-Semitism but that joke failed, it can still support a finding of fair use if it’s “parodic character can be reasonably perceived.”

I. Purpose and character

The second interesting part of the judgment concerned the Court’s evaluation of the first prong of a fair use evaluation, purpose and character.  Judge Batts side-stepped the question of whether the work was commercial or non-commercial and only addressed whether the use was transformative.

The Court finds that the new work is transformative; consequently the first factor weighs in favor of a finding of fair use.

IV. Effect of the Use Upon the Potential Market

A third noteworthy part of the decision is Judge Batt’s examination of potential market harm.  Similar to our analysis of “Goodnight Bush,” “I Need a Jew” wasn’t a risk to act as a market substitute for “When You Wish Upon a Star”:

Even Plaintiff admits that its song is known for its wholesomeness and sweetness, where Family Guy’s parody of it is so different as to be (they argue) offensive. Plaintiff does not even make the contention that “I Need a Jew” could in any way for “When You Wish Upon a Star.

Instead, Bourne argued that it was losing an opportunity to license its works, which Batts rejected:

Plaintiffs argues for a reading of the fourth factor that would swallow the rule entirely. All uses of copyrighted work under a fair use rationale deprive the owner of licensing fees. If a parody of the original work would usurp the market for licensing other comedic uses of the original work, then all parodies would fail under this prong of the analysis. The Supreme Court clearly intended otherwise as did Congress in creating an opportunity for fair use under 17 U.S.C. 107.

Thus, Judge Batts dismissed the claim for copyright infringement:

Plaintiff reaps the benefit of their song’s association with Pinocchio and Disney, and enjoys its reputation for wholesomeness; it is precisely that beneficial association that opens the song up to ridicule by parodists seeking to take the wind out of such lofty, magical, or pure associations.

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