When is a takedown notice based on a misrepresentation, and when does taking material down constitute a breach of YouTube's duties?

In 2007, YouTube informed Stephanie Lenz of Pennsylvania that it had removed a video she had posted after YouTube had received a takedown notice from Universal Music Publishing Group ("UMPG"). The video, 29 seconds long, showed Lenz's 13 month old son dancing to Prince's Let's Go Crazy. Ms. Lenz sent a counter-notification to YouTube requesting that YouTube re-post the video, but YouTube did not do so until, six weeks later, UMPG dropped its copyright claim.

Now, with the assistance of the Electronic Frontier Foundation, Lenz is suing UMPG. Her complaint (pdf) seeks (1) a declaration that the use of Let's Go Crazy in the video constitutes fair use, (2) an injunction against any lawsuit or threat against Lenz in connection with her video, and (3) damages under the DMCA because UMPG "knowingly materially misrepresent[ed]" that the video infringed UMPG's copyright in Let's Go Crazy.

Lenz's first cause is based on the provision of the DMCA. 17 U.S.C. § 512(f) providing that anyone who "materially misrepresents" that "material or activity is infringing" is liable to the alleged infringer (in this case, Lenz) for any damage arising from the misrepresentation.

Copyright overclaiming is a problem, and UMPG plainly concluded in the end that it had been wrong in its initial position that Lenz's video infringed the copyright in Let's Go Crazy. But was that error so obvious at the time UMPG sent its takedown notice that it was a "material misrepresentation"? It is a trite at this point to observe that whether a given unauthorized use of copyrighted material is a non-infringing fair use is a difficult, case-by-case question; nevertheless, some cases are less difficult than others

In this case there does not seem to be any reasonable basis for UMPG to have believed Lenz's video infringed the copyright in Let's Go Crazy. Len'z video used only 29 seconds of the song, was for non-profit purposes, and would not serve as a substitute for any primary or derivative use of Prince's song. In short, the decision UMPG made 6 weeks after sending its takedown notice is one it should have reached before sending the notice. Lenz's case may not be as strong as that asserted in OPG v. Diebold, but it is one that should worry UMPG.

Lenz's lawsuit might worry Viacom even more. Viacom sent Google/YouTube over 100,000 takedown notices based merely on the fact the videos targeted by those notices contained "unauthorized" clips of material in which Viacom owns the copyright. By definition, any non-infringing fair use will be "unauthorized." Lenz's use of Let's Go Crazy was unauthorized. It was not infringing. It seems likely that among Viacom's 100,000 plus takedown notices are many that Viacom either knew or should have known were unwarranted. How could Viacom possibly have made over 100,000 legitimate fair use decisions about 100,000 different videos?

In addition, Lenz's lawsuit asserts a second, very creative, cause of action alleging that UMPG's unwarranted takedown notice tortiously interfered with Lenz's contract with YouTube. Roughly speaking, UMPG tortiously interfered with Lenz's contract with YouTube if (1) UMPG knew in sending its takedown notice it would cause YouTube to breach a contract with Lenz and (2) UMPG acted "improperly" in sending the notices. What constitutes "improper" conduct is often difficult to determine; nevertheless, it seems obvious that UMPG's takedown notice was "improper" if Lenz prevails on her first cause of action -- for her to do so, the court must find that the claim of infringement asserted in its takedown notice was a "material misrepresentations" that violated § 512(f). The outer boundaries separating "proper" from "improper" conduct may be vague; "material misrepresentations," however, are obviously well on the "improper" side of those boundaries.

The remaining and more difficult question on this second cause of action is whether YouTube breached its contract with Lenz when it did not restore her video until 6 weeks after she sent her counter-notice. YouTube's Terms of Use provide that in the event YouTube, in response to a takedown notice, removes a video, the person who submitted the video can file a counter-notice asserting her argument that the video does not infringe the rights of the person who sent the original takedown notice. Section 8B of the Terms of Use further provides that when YouTube receives such a counter-notice

YouTube may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at YouTube's sole discretion. (emphasis added)

In short, even if UMPG's takedown notice was unwarranted, YouTube's failure to restore the video for six weeks after receipt of Lenz's counter-notice does not seem to be a breach of any express contractual duty owed by YouTube to Lenz -- the contract provides that YouTube has the unilateral right to restore or not restore the contested material. Moreover, the DMCA provides, in 17 U.S.C. § 512(g)(1) , that "a service provider shall not be liable to any person for any claim based on the service provider’s good faith disabling of access to, or removal of, material or activity claimed to be infringing or based on facts or circumstances from which infringing activity is apparent, regardless of whether the material or activity is ultimately determined to be infringing." (emphasis added)

Nevertheless, Lenz could possibly prevail in arguing that the legitimacy of her video was so obvious that YouTube's failure to immediately restore it after she served her counter-notice was a breach of its implied duty to act in "good faith." As § 512(g)(1), quoted above, indicates, YouTube's immunity from liability for disabling Lenz's video requires that in doing so it acted in "good faith." Moreover, though the duty rarely seems to have practical weight, every contract implicitly requites the parties to act in good faith. Finally, YouTube emphasizes that it will consider seriously the merits raised by counter-notices -- its Community Guidelines, which are incorporated by reference into its Terms of Service, provide that "[i]f we remove your video after reviewing it, you can assume that we removed it purposefully, and you should take our warning notification seriously."

If YouTube had indeed taken UMPG and Lenz's respective positions seriously, it is difficult to believe it needed to wait until UMPG backed off from its infringement claim to conclude that Lenz's video was non-infringing. Thus, Lenz's argument on her tortious interference with contract claim would be that YouTube breached its obligations to her to evaluate UMPG's infringement claim "seriously." It is a very interesting and creative claim, and one that truly puts YouTube's policies in these disputes to the test.

Addendum: Sherwin Sly adds some cogent analysis to the dispute between Lenz and UMPG.

Code of Best Practices for using copyrighted materials in online video

American University's Center for Social Media "a code of best practices" that helps creators, online providers, copyright holders, and others interested in the making of online video interpret the copyright doctrine of fair use."

The authors make clear that "this code of best practices does not tell you the limits of fair use rights. . . . It’s not a guide to using material people give permission to use, such as works using Creative Commons licenses. Anyone can use those works the way the owners say that you can. . . . It’s not a guide to material that is already free to use without considering copyright. For instance, all federal government works are in the public domain, as are many older works. In most cases, trademarks are not an issue. For more information on “free use,” consult the document “Yes, You Can!” and copyright.cornell.edu."

Then what is it? Essentially, it's a guide to what professionals actually are doing:

This is a guide to current acceptable practices, drawing on the actual activities of creators, as discussed among other places in the study Recut, Reframe, Recycle: Quoting Copyrighted Material in User-Generated Video and backed by the judgment of a national panel of experts. It also draws, by way of analogy, upon the professional judgment and experience of documentary filmmakers, whose own code of best practices has been recognized throughout the film and television businesses.

Regular readers of this blog will not be surprised at the views of authorship and creation that inform this code of best practices. Fans of Girl Talk and the class that originated this blog will be particularly interested in the code's claim that it is fair use to "to recombine elements to make a new work that depends for its meaning on (often unlikely) relationships between these elements.

Good Copy, Bad Copy (embedded with permission)

A documentary from Denmark on Girl Talk, Bridgeport Music, sampling, and copyright:

Who's the author?

From Scoodleyweb:

I don’t think I have any words for this. Star Trek the Animated Series mashed up with William Shatner singing Pulp’s common people, as Kirk/Spock slash fiction. So many memes tied up in a nice bow. Exquisite. Simply Exquisite.

And if you wonder where the title of the post, "In that case, I'll have a Rum and Coke," comes from, you should look here and

ask yourself, who wrote "Rum and Coca-Cola?" Morey Amsterdam, U.S. copyright holder, who slightly changed some lyrics to a song he heard in Trinidad? Lord Invader, who put new lyrics to a song written by Lionel Belasco in the early 1900s? Lionel Belasco, who adapted his music from a folk song from the 1800s?

And how far back does the thread stretch from there? Who originally wrote the music that would evolve into "Rum and Coca-Cola"?

Course packs in the internet age.

Oxford University Press, Cambridge University Press, and Sage Publications sued the Georgia State University in federal court in April, arguing that course readings that professors and librarians disseminated online infringed publishers' copyrights." The complaint is here (pdf).

I am sympathetic to the view of the that the posting of copyrighted materials without permission for educational purposes would be beneficial for students. As the editors of the UCLA Daily Bruin write: "With increased tuition fees, living expenses and constantly looming debt, the last thing students want to dish out more money for is a heavy and overly expensive textbook that they will open once over the course of the quarter to read one paragraph."

But there is serious legal doubt to the legitimacy of the position of Georgia State in the lawsuit. In Princeton University Press v. Document Services, Inc., 99 F.3d 1381 (6th Cir. 1996) , cert. denied, 520 U.S. 1156 (1997), the U.S. Court of Appeals for the Sixth Circuit held that photocopied "course packs" containing excerpts from copyrighted materials that sound very similar to those being posted on line by your university did NOT constitute fair use. Though there are many ways in which the internet changes the calculus one must apply to questions of fair use, I don't see any particular way Georgia State's actions differ from those of the University of Michigan professors actions in making available to their students photocopied coursepacks consisting of collections of excerpts from copyrighted texts.

Of course, the federal courts in Georgia are not bound to follow the Sixth Circuit's decision in Princeton University Press, but that decision has not proven to be a particularly controversial one with respect to its doctrine. As Stephana Colbert and Oren Griffin explain in "The Impact of Fair Use on Higher Education: a Necessary Exception?", 62 Albany L. Rev. 437, 454-55 (1998): "the Congress that passed the Copyright Act in 1976 would pretty clearly have thought it unfair for a commercial copyshop to appropriate as much as 30 percent of a copyrighted work without paying the license fee demanded by the copyright holder . . . ."

Neverthless, the issue is "[o]ne of the most contentious issues between libraries and publishers in the digital age . . . ." As Colbert and Griffin point out:

T]he changes in technology and teaching practices that have occurred over the last two decades might conceivably make Congress more sympathetic to the defendants' position today. If the law on this point is to be changed, however, we think the change should be made by Congress and not by the courts.

Thus, while suggesting that [Michigan Document Services had] has legislative support for its conduct, the court left open the possibility that a different result might be forthcoming should Congress revisit the copyright statute. Certainly, technology has had a dramatic impact on virtually every segment of American society, and to think that the application of American copyright law has been unaffected by the advances in technology since 1976 is naive.

See also Melamud, Pursuing Fair Use, Libraries, and Electronic Reserves, 92 Law Libr. J. 157 (2000)(pdf).

What can you do? Well, you don't have to send a takedown notice or sue.

From Techdirt, a question -- who will be the first to sue Girl Talk? I don't think it will be LL Cool J -- and mention of a small industry of "sample trolls":

[W]ith over 300 samples used on the album, there's almost certainly going to be a few who get upset [by the Girl Talk album]. . . . [T]he woman in charge of the copyright for the band the Guess Who is planning to go after Girl Talk, noting that: "We'll chase it down. What more can you do?" Well, actually, there's plenty more that you can do -- such as recognizing that no one who hears the music on Girl Talk is going to see that as a replacement to the Guess Who's album -- and, if anything, it might entice new fans to the original.

But, eventually a legal battle is going to pop up -- and while Gillis and his label are banking on "fair use" claims to protect them, the history of court cases on this particular question have shown the courts (wrongly) seem to count nearly any require a license. This has created a small industry of "sample trolls" getting the rights to various songs (often via very questionable means) and then suing anyone who samples just a few notes from it. It seems quite likely that sooner or later someone is going to go after Gillis for this.

Is Coldplay original?

This whole question of originality can make one's head spin. It may not help Coldplay's situation that Chris Martin has been quoted in the past as saying "We're definitely good, but I don't think you can say we're that original," he notes. "I regard us as being incredibly good plagiarists."



Addendum, from Techdirt:

[T]he guy from Creaky Boards later not only retracted his accusation, but suggested that perhaps both bands were actually "inspired" by the "Fairy Theme" in the Legends of Zelda. In a world of strict copyright, of course, that might make both songs "illegal," though I doubt anyone would think that would be the optimal outcome.

. . . The thing is, part of the point we keep trying to make around here is that, for the most part, that's true of just about everyone. It's the overly aggressive use of copyright law that prevents that sort of "goodness" from showing up. Oh, and it's also worth mentioning, that this little story has definitely increased the profile of The Creaky Boards -- proving one of the points we recently made about plagiarism. Even if the plagiarist is "bigger" than you, the original creator can use that to their advantage as well.

Kid Rock doesn't steal, but is there anything original about him?

Speaking of Kid Rock, of course, brings to mind his own appropriation of Lynyrd Skynyrd's Sweet Home Alabama, Warren Zevon's Werewolves of London, and Bog Seger's Night Moves, which can't help but bring back a fond nostalgia for the much maligned decade of my teens (the '70s). I have no doubt, of course, that Kid Rock paid big bucks to the copyright holders of the songs he appropriated (though, perhaps, not to Seger, from whose Night Moves there isn't quite copying), but I'm sure he's made far, far more than he paid.

And could there possibly be a more fitting instance of The Manual's principles in action?

Kid Rock says he was kidding about saying it's okay to download his songs for free.

Kid Rock, "who has resisted selling his music on iTunes and other online stores, tells The Associated Press he was just kidding." (Hope AP doesn't send me a takedown notice!)

Copyright Ignorance from MTV.com

In connection with yesterday's post about Girl Talk's new album, I can't help but mention today's post on MTV.com by James Montgomery. Montgomery writes of listening to the album while flying on a plane along with L.L. Cool J and wondering:

Song seven on the [Girl Talk] record is called "Like This," and it features, in addition to a whole lot of other things, two very audible samples of LL's "Mama Said Knock You Out," two samples that Girl Talk did not obtain LL's permission to use, which means that they appear in the song illegally, which means that LL is not getting paid for their usage, which would probably make LL very upset if he had any idea that this was happening. (emphasis added.)

Then Montgomery writes that Girl Talk's Greg Willis uses "the concept of 'fair use' to shield himself from any pesky copyright suits."

I can't believe someone from MTV.com is writing on these issues from such a state of ignorance. It's far from certain that what Girl Talk is doing is "illegal," and "fair use" is no "technicality" to shield one from copyright infringement lawsuits. It's one's constitutional right.

And, incidentally, D.J. Danger Mouse has not, as Montgomery implies, "left the [musical collage] genre behind.

Addendum: First, according to Will in the comments, Mr. Montgomery should have known better than to think LL Cool J would've been upset by Girl Talk's appropriation because "LL recently recorded a 'mixtape' called 'Return of the G.O.A.T.' featuring a number of freestyles over uncleared sampled beats."

Second, and more important in trying to determine whether Girl Talk's appropriations constitute fair use, Mr. Montgomery's own evaluation of Girl Talk's music basically makes the case that the use is "transformative" and therefore does constitute fair use. He writes: "[Girl Talk's] new album is so great, the kind of thing that could not have existed 10 years ago, an audio time capsule of the era in which we live. The kind of thing that can inspire post-millennial dilemmas at 37,000 feet."

Then again, inasmuch as Mr. Montgomery is a shill for MTV, and MTV is part of a corporate conglomerate with every interest in hiding the realities of fair use from the public, it should be no surprise that he writes with such ignorance about fair use. Here are some posts to try to begin to bring him up to speed.

Is the use "commercial" if you ask for a donation in return?

Girl Talk's "Feed the Animals" is the latest product from Illegal Art that raises the question, posed by the N&VR Journal: "at what point does sampling end, and a new creation with a new 'songwriter' begin?" It's a question posed again and again by musical collage. It is not, as this blog again and again points out, a position that is "anti-copyright." Rather, as Illegal Art's founder, Philo T. Farnsworth, explains:

I should clarify that we are and we aren't anti-copyright. We're against copyright law when it impedes an artist's ability to interact with pre-existing recordings. We're not against copyright protecting artists from someone copying their material and selling it without compensating them.

But, as we all know by now, whether the use of copyrighted material is a fair use requires a holistic consideration of four factors, including the purpose and character of the use, which itself includes a consideration whether the use is commercial or not. "Feed the Animals" raises a question with respect to this factor I have never encountered before: is the use a commercial one if the creator, instead of selling the product, offers it along with a request for a donation? Illegal Art will allow you to download "Feed the Animals" without donating anything; I did so. That's no sale. Under basic contract law, therefore, this deal is no "contract": one can obtain the album without giving or promising anything in return.

Of course, whether a use is commercial is only one factor among many in determining whether it is a fair use; it is not even the entirety of the "nature of the use" factor. But the fact Illegal Art will give away the product for nothing does weigh in favor of its legality.

And, like the video discussed yesterday, the album is there, available on the internet, as yet unchallenged by any of the owners of the material appropriated by it. There is always that vast amount of human behavior that may or may not be illegal but still happens in a relatively unimpeded way. There also too is a vast amount of copyright overclaiming by copyright holders that use there economic weight to stop practices that would, if fought for, be upheld. Law is not always the answer to our questions, particularly when we are dealing, as we are, with a material reality that has changed and is changing as radically as the material reality of information in the digital age.

Digital locks, fair use, and the Constitution

Canada is considering legislation that would make it illegal to break digital protections on copyrighted material (i.e., so-called "DRM" ("Digital Rights Management") protection"). The Canadian bill apparently is intended to override existing rights, including the right to backup or copy digital materials for personal use or for fair use of materials with DRM protection. Apparently too, "mash ups and satire will be criminalized by the bill if they 'distort or mutilate a copyright performance.'" A group of Canadian musicians have severely criticized the bill, stating that "[t]he question is, who gains from this bill? It’s not musicians. Musicians don’t need lawsuits, we don’t need DRM protection. These aren’t the things that help us or our careers. What we do need is a government that is willing to sit down with all the stakeholders and craft a balanced copyright policy for Canada that will not repeat the mistakes made in the United States.”

The group is referring to 17 U.S.C. Section 1201 of the Digital Millennium Copyright Act,(the "DMCA"), which purports to make it unlawful to override a CD or DVD's digital copyright protection even if the copying of the copyrighted material is legitimate, non-infringing fair use.

Nevertheless, I'm not sure a court could impose liability under Section 1201 of the DMCA on someone who evades DRM protection on a CD or DVD if the copying is for a fair use. Fair use is founded in the Constitution, both in Article I, Section 7, which gives Congress the power to "promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries," and in the First Amendment protection of free speech. In other words, fair use is a constitutional right, and constitutional rights cannot be derogated by legislation.

Not everyone agrees. Chris Soghoian writes that the creators of the Hillary's Inner Tracy Flick video are in violation of the DMCA's provision making it unlawful to copy material under DRM protection even if the video otherwise makes fair use of scenes from the movie Election. Soghoian cites to the statement by the U.S. Court of Appeals for the Federal Circuit in Atari v. Nintendo, 975 F.2d 832 (Fed. Cir. 1992), that "[t]o invoke the fair use exception, an individual must possess an authorized copy of a literary work." Thus, Soghoian concludes, if the creator of the video "used DVD-ripping software, its unencrypted, DRM-free copy of the work (which they would have needed to cut and paste bits into their mash up) is in no way authorized. This means, unfortunately for [the video's creator], that it would have no fair-use defense, and could thus face a copyright infringement lawsuit."

I'm not so sure. Congress cannot through legislation deprive someone of using material in a way the First Amendment of the Bill of Rights and Article I, Section 7 of the Constitution permit. Thus, I am confident, a statute that makes it unlawful to copy for fair use purposes any document stating "no copy of this document is permitted by its author for any purposes" would be unenforceable under the Constitution. I do not see why DRM protection, which can generally be cracked very easily, should, for fair use purposes, be treated any differently than such a bare declaration that any copying is unlawful.

The Associated Press Overreaches

The Associated Press, in a blatant disregard of fair use, is purporting to require payment for the quotation on a website of as few as five words from AP articles. The starting price, for five words, is $62.50 (@ $12.50/word). Pursuant to this policy, the AP has issued 6 DMCA takedown notices against the Drudge Retort, "claiming that the users linking to its stories are violating its copyright and committing 'hot news' misappropriation under New York state law." Apparently, the firestorm of protest the AP's new policy provoked has led to some rethinking on AP's part, but, as Michael Arrington of TechCrunch.com, explains:

The A.P. doesn't get to make its own rules around how its content is used, if those rules are stricter than the law allows. So even thought they say they are making these new guidelines in the spirit of cooperation, it's clear that, like the RIAA and MPAA, they are trying to claw their way to a set of property rights that don't exist today and that they are not legally entitled to. And like the RIAA and MPAA, this is done to protect a dying business model - paid content.

According to Columbia law professor Timothy Wu, "'the principal question is whether the excerpt is a substitute for the story, or some established adaptation of the story.' . . . Mr. Wu said that the case is not clear-cut, but he believes that The A.P. is likely to lose a court case to assert a claim on that issue. 'It’s hard to see how the Drudge Retort "first few lines" is a substitute for the story,' Mr. Wu said. "

A digital simulacrum is not creative enough to be copyrighted

In a decision entered today in Meshwerks, Inc. v. Toyotal Motor Sales, Inc., No. 06-422 (10th Cir. June 17, 2008)(pdf), the 10th Circuit Court of Appeals affirmed an order granting summary judgment and dismissing the copyright infringement case brought against Toyota by Meshwerks, which had created digital models of Toyota cars for use in Toyota's advertising. As the court explained, "[t]hese digital models have substantial advantages over the product photographs for which they substitute. With a few clicks of a computer mouse,the advertiser can change the color of the car, its surroundings, and even edit its physical dimensions to portray changes in vehicle styling; before this innovation, advertisers had to conduct new photo shoots of whole fleets of vehicles each time the manufacturer made even a small design change to a car or truck." Professor Patry strongly criticized the lower court's decision and will no doubt be unpersuaded by the 10th Circuit's affirmance. The court concluded, however, that the digital models did not have a sufficient degree of creativity to entitle them to copyright protection because

Meshwerks’ digital wireframe computer models depict Toyota’s vehicles without any individualizing features: they are untouched by a digital paintbrush; they are not depicted in front of a palm tree, whizzing down the open road, or climbing up a mountainside. Put another way, Meshwerks’ models depict nothing more than unadorned Toyota vehicles – the car as car. See Appendix A. And the unequivocal lesson from Feist is that works are not copyrightable to the extent they do not involve any expression apart from the raw facts in the world. As Professor Nimmer has commented in connection with the predecessor technology of photography, “[a]s applied to a photograph of a pre-existing product, thatbedrock principle [of originality] means that the photographer manifestly cannot claim to have originated the matter depicted therein . . . . The upshot is that the photographer is entitled to copyright solely based on lighting, angle, perspective, and the other ingredients that traditionally apply to that art-form.” Nimmer on Copyright § 3.03[C][3]. It seems to us that exactly the same holds true with the digital medium now before us: the facts in this case unambiguously show that Meshwerks did not make any decisions regarding lighting, shading, the background in front of which a vehicle would be posed, the angle at which to pose it, or the like – in short, its models reflect none of the decisions that can make depictions of things or facts in the world, whether Oscar Wilde or a Toyota Camry, new expressions subject to copyright protection.

Is it parody if the point is not to make fun of the original?

Little, Brown is publishing “Goodnight Bush,” an unauthorized parody of the 1947 children’s bedtime classic “Goodnight Moon,” written by Margaret Wise Brown and illustrated by Clement Hurd: The cover of “Goodnight Bush” looks almost exactly like “Goodnight Moon — green and orange, with an image of a window and fireplace — and uses a similar rhyme scheme. But there the thematic similarities end.

The authors, Erich Origen and Gan Golan, set their story in “a situation room.” There is no bunny snuggling into bed, but rather George W. Bush, grinning and wearing a “Mission Accomplished” flight suit. Instead of three little bears sitting on chairs, there are “war profiteers giving three cheers.”
Subsequent pages tell of “A grand old party to war in a rush/And a quiet Dick Cheney whispering hush.” The vice president is illustrated seated in a rocking chair — with a shotgun in his lap and bunny slippers on his feet. . . .

The publisher of “Goodnight Bush” is counting on the fair use doctrine, which allows limited amounts of copyrighted material to be used without permission. “Parody as fair use is a developing area of the law,” said Pamela Golinski, an entertainment lawyer in New York, “and as a result, whether a given parody merits the shield of the fair use doctrine is a complex question.”

Little, Brown may have some difficulty in sustaining its fair use defense in light Dr. Seuss Enterprises, L.P. v. Penguin Books USA, Inc., 109 F.3d 1394 (9th Cir. 1997), in which the U.S. Court of Appeals for the Ninth Circuit held that the re-telling of the facts of the O.J. Simpson murder trial in the style and rhythms of Dr. Seuss's The Cat in the Hat was not fair use. The court concluded the book was a satire, not a parody, because the book did not poke fun at or ridicule Dr. Seuss. Instead, it merely used the Dr. Seuss characters and style to tell the story of the murder.

Readers of this blog will not be surprised to know the parody/satire distinction seems a tenuous one. Every parody makes a point independent of its ridicule of the original, and every satire requires recognition of the original to accomplish it's artistic intent. Do the copyright holders to The Cat in the Hat own its metrical scheme?