Cheezburger, “It’s too early to tell, Huh adds. Regardless, he says he will continue to seek out more timely content “to serve as inspiration for our users.”
In the LA Times piece, Mark Milian wrote that gossip blogger Perez Hilton occasionally publishes AP photos, with his own doodles and captions, which appears to be in the same vein as the proposed Cheezburger use. The Times piece didn’t say whether Perez Hilton gets permission to use AP photos.
All this talk of reposting rights for content online, made me think back to a media law class I took in journalism school, and the issue of copyright infringement. To get a little context on the much debated topic, I turned to my former professor and intellectual property lawyer Don Zachary, who served as counsel to NBC for nearly 20 years, and has experience in the entertainment media space.
Though Cheezburger is currently not using any AP photos without permission, I thought it might be interesting to postulate whether or not the comedy network could, under media law. To figure this out, I had Zachary walk me through the criteria of what constitutes “fair use” (I loved your class at USC, Don, but I hate to admit, I needed a quick refresher). To answer this, we discussed four points taken into consideration when evaluating whether a case constitutes fair use—the purpose and character of the use, the nature of the copyrighted work, the amount and sustainability of the use, and the effect (if any) it would have on the market.
A legal case could hinge on whether a judge considers Cheezburger’s users as performing parody or satire. “It is well-established law that one can take a portion of a copyrighted work in order to create a parody, which is a form of commentary on the thing taken,” Zachary says. “For example, there is a very famous comedy sketch by Carol Burnett that is based on Gone With The Wind that involves Rhett, Scarlett, Ashley and Mammy and the famous scene near the end of the picture when Scarlett makes a dress from a curtain in order to impress Rhett. That’s why it is a parody, because it was making fun of the original motion picture.” A satire, on the other hand, is when a literary device is used to make fun of something else, he says.
In this hypothetical, “obviously, Cheezburger will argue that the purpose of the use is for comment,” Zachary says. “The problem is that while parody is a well-recognized purpose for using copyrighted material, satire never has been held to have the same level of protection.” But, he adds, “There is absolutely no reason, in my mind, why this should be so, but the only case in point of which I am aware is the Family Guy/When You Wish Upon A Star/Disney litigation, in which the U.S. District Court held that the use in Family Guy of the melody from When You Wish Upon A Star was Fair Use, even though that use clearly was satirical, not parody.”
For those of you unfamiliar with the case, in an episode aired in 2003, the father character, Peter, complains about his financial situation by singing a song called “I Need a Jew,” to the tune of Disney’s “When You Wish Upon a Star.”
“It’s hilarious, but it is not making fun of Disney or the song When You Wish Upon a Star,” Zachary says. “Rather, it is poking fun at stereotypes about Jews. Disney argued unsuccessfully that this kind of satire was not protected by the Fair Use doctrine, but the District Court in Manhattan disagreed.” For this reason the Family Guy decision, which he notes is currently under appeal, “breaks new ground.”
If this were to be a real case disputed between the two, AP would have a strong argument because of the highly creative nature of the images, which are subject to maximum copyright protection, and the fact that the final Cheezburger images would likely use close to 100 percent of the original work. However, Zachary adds, in terms of effect on the market for news images, most likely “no one is going to use a captioned Cheezburger photo instead of the original AP photo.” In other words, this (hypothetical) case could go either way.
