Naked Women, Farting Dolls and Fair Use, Oh My

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Some days, keeping watch along the fair use border makes you feel like Paris Hilton inside the Fermi National Accelerator Laboratory.  Other days you feel like a pledge at a wild Delta House frat party in Animal House.  Today is a Delta day, brought to you by the good jurists of the Seventh and Ninth Circuit.  To paraphrase Herman Melville, Call me Flounder.

We begin with the magical opening paragraph of Circuit Judge Diane Woods' opinion in the Seventh Circuit's recent copyright decision in JCW Investments, Inc. v. Novelty, Inc.:

Meet Pull My Finger Fred.  He is a white, middle-aged, overweight man with black hair and a receding hairline, sitting in an armchair wearing a white tank top and blue pants.  Fred is a plush doll and when one squeezes Fred's extended finger on his right hand, he farts.  He also makes somewhat crude, somewhat funny statements about the bodily noises he emits, such as "Did somebody step in a duck?" or "Silent but deadly."

And we continue with a bevvy of beautiful babes in the buff, delivered compliments of a Google "Image Search" for the phrase "Perfect 10" that is the subject of the Ninth Circuit's recent copyright opinion in Perfect 10 v. Amazon.com.  These two cases -- whose fact patterns could have been selected by the cast of Porky's -- shed important light on two fair use issues.

First, the face-off of the farting dolls.  Pull My Finger Fred is, as Judge Woods describes him, a white, middle-aged, overweight man, etc., etc.  Check him out here.  Fred is part of a niche market for farting dolls that we, along with Judge Woods, were surprised to learn is "quite lucrative."  Thus enter Fartman, a competing plush toy who, in Judge Woods' ominous words, "could be Fred's twin."  And there's the rub, or the pull, or whatever -- because Fred is protected by copyright.  His creator sued Fartman's maker for copyright infringement.

Fred's infringement claim was straightforward, since there was evidence that the defendant had access to the Fred doll and there was a finding that Fartman was substantially similar to Fred -- or, as Judge Woods put it in a phrase that works on several levels, "the two dolls give off more than a similar air."  On appeal of the summary judgment entered against it, the defendant made a quasi-"fair use" argument, contending that it merely copied the unprotectable idea of a "typical man wearing jeans and a T-shirt in a chair doing the 'pull my finger' joke."  From there, defendant argued, it simply combined various elements in the public domain -- including standard fart jokes and middle-age man attire.

Judge Woods was not persuaded.  "Although it is not always easy to distinguish the idea from the expression," she wrote, "by the same token the task is not always hard."  Here, she explained "it is not the idea of a farting, crude man that is protected, but this particular embodiment of that concept."  Striking a blow against the cruel stereotype of middle-aged white guys in undershirts on Barcaloungers, she pointed out that the defendant could have made a completely different version of "a plush doll of a middle-aged farting man," namely, one with "a blond mullet," dressed in a flannel shirt, standing up, and "wearing shorts rather than blue plants."  On balance, the case draws a helpful distinction between idea and expression -- and thereby offers guidance to those hoping to enter this lucrative market and follow the sweet smell of success.

As for naked women, the Ninth Circuit addressed a more traditional "fair use" defense in the Perfect 10 case.  Perfect 10 had accused Google of infringing its copyrights in the photographs of its naked Perfect 10 models by reproducing them in the form of thumbnail images in its search results.  Google defended on "fair use" grounds, arguing that its use of the thumbnails was a "transformative use" in that the search engine turned the image into a pointer directing a user to a source of information.  The Ninth Circuit agreed, finding that the "use of thumbnails for search engine purposes is highly transformative."  The court rejected Perfect 10's claim of market harm on the ground that it had failed "to introduce evidence that Google's thumbnails would harm Perfect 10's existing or potential market for full-size images."  Perfect 10 had argued that the court could presume market harm if there was evidence that Google stood to gain commercially from using the material, but the Court rejected that argument, stating that in a "fair use" case "market harm" cannot be presumed.

This rejection of a presumption of market harm is a welcome result for those who believe in a vigorous "fair use" doctrine.  That is because any commercial use of a copyrighted work will, almost by definition, confer a commercial benefit on the user.  But the converse is often not the case.  Just because the copyright owner could have obtained a license fee from a use similar to the defendant's use does not translate into actual harm.  Courts need to fight attempts to draw parallels between intellectual property and ordinary property.  Unauthorized use of peresonal property -- such as hot-wiring your neighbor's riding lawnmower to mow your own lawn -- will constitute trespass and unjust enrichment regardless of actual harm to that property.  After all, if you used the mower when your neighbor was out of town and refilled the gas tank when you finished, where's the harm?  Even so, you're guilty.

But absent market harm to the owner of a copyright, an unauthorized use often can and should be a protected use.  And the Perfect 10 case is just such an example.

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