Family Guy Creators' Fair Use Wish Comes True

(despite a lack of volcanoes in the fictional ing temple (Peter, being raised Catholic). Family Guy Rhode Island city in which he resides). Peter then decides that his son, Chris, After being chastised by his wife for should become a Jew so that Chris will Creators’ depleting the rainy day fund, Peter heads grow up smart (the episode repeatedly to the local bar to commiserate with his pokes fun at Chris’ lack of “smarts”). Fair Use Wish friends. Peter then hears his friends talking Peter and Chris head to Las Vegas to get about how men with Jewish-sounding last a quickie Bar Mitzvah, which is quickly names helped each of his friends with their stopped (in a scene mimicking the movie Comes True respective finances. So, Peter decides that The Graduate) by his wife. At the end of he “needs a Jew” to help resolve his own the episode, Peter learns that Jews are By Cydney A. Tune and Jenna financial mess. just like any other people and that his F. Leavitt In an almost exact replica of a scene racial stereotyping was wrong. from the Walt Disney movie Pinocchio, Thus, the overall theme of the episode ecently, the U.S. Federal Court Peter gazes longingly out his bedroom is Peter’s childlike belief based on an in the Southern District of window up at a starry sky with one bright inappropriate racial stereotype. The RNew York dismissed a copyright star and sings the song entitled “I Need a creators wrote the song in a manner that infringement case brought against the Jew.” The first four notes mimic those of was intended to evoke the classic Disney creators, broadcasters, and distributors “When You Wish Upon a Star.” During song. A license was initially sought from of the Family Guy television show by Peter’s song, a spaceship magically ap- the plaintiff, Bourne Co., the copyright the owner of the copyright in the Acad- pears and Peter hops onto it and flies to holder of the original song. The license, emy Award-winning song “When You outer space. During this fantasy shot, the however, was refused. The creators pro- Wish Upon a Star.”1 Plaintiff Bourne spaceship magically turns into a flying ceeded anyway under the apparent belief Co. sued the defendants for copyright dreidel and a menorah (both Jewish in- that a license was not required because infringement, alleging that the song struments). Peter finally falls asleep while the use was a parody. “I Need a Jew” was a “thinly-veiled gazing out the window. As if by “magic,” The history of “When You Wish copy” of the music from the world- a knock at the front door awakens him. Upon a Star” is fairly well known. The famous “When You Wish Upon a Star,” It’s a Jewish man, Mr. Weinstein, who song was introduced to the public in the coupled with new anti-Semitic lyrics. needs to use Peter’s phone because his car 1940 version of the Disney movie Pinoc- The matter was before the court on the has broken down. Peter believes that his chio. The film depicts Jiminy Cricket parties’ cross motions for summary judg- wish has come true, as here is the Jewish singing the song while Gepetto looks out ment. In granting the defendants’ mo- man that he wished for. Mr. Weinstein upon a starry sky with one bright star and tion for summary judgment and dismiss- quickly gets Peter’s money back from the wishes for a real boy. The song became ing the complaint, the court held that scamming salesman. Peter and his family an instant hit and won the 1940 Acad- the song “I Need a Jew” was a parody then attend temple with Mr. Weinstein, emy Award for Best Original Song. Since of “When You Wish Upon a Star” and with the brides of Christ (nuns) being 1940, the song has been recorded by over exempt from liability under the fair use activated to come after Peter for attend- 100 different artists, has been included in doctrine of the U.S. Copyright Act.2

THE HISTORY THE SONGS The facts leading up to this case date “I Need a Jew” “When You Wish Upon a Star” back several years to the second season Nothing else has worked so far, When you wish upon a star, of the then soon-to-be canceled Family So I’ll wish upon a star, Makes no difference who you are, Guy television show when the episode Wondrous dancing speck of light, Anything your heart desires “When You Wish Upon a Weinstein” I need a Jew. Will come to you. was developed and produced. The episode was not actually aired during Lois makes me take the rap, If your heart is in your dream, that season because of concerns about its ’Cause our checkbook looks like crap, No request is too extreme, religious content. However, it aired some Since I can’t give her a slap, When you wish upon a star, years later on the Cartoon Network, I need a Jew. As dreamers do. and eventually Fox, and also was sold on DVD compilations of season three as a Where to find Fate is kind, “bonus un-aired episode.” a Baum or Steen or Stein She brings to those who love The episode is about the cartoon father, To teach me how to whine and do The sweet fulfillment of Peter, and his inability to manage his fam- my taaaaaaaaaxes? Their secret longing. ily’s finances. It begins with Peter being swindled by a traveling salesman, which Though by many they’re abhorred, Like a bolt out of the blue, puts his family’s finances into disarray. Hebrew people I’ve adored. Fate steps in and sees you through, Peter is convinced to use the family’s rainy Even though they killed my Lord, When you wish upon a star, day fund to purchase volcano insurance I need a Jew. Your dreams come true.

Published in Entertainment and Sports Lawyer, Volume 27, Number 2, Summer 2009. © 2009 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. numerous films and television programs, “wholesome” worldview presented in and The court viewed one layer of commentary and was ranked the seventh greatest song represented by the original song; and (2) to be that “any categorical view of a race of in film history by the American Film because it evoked the song most associ- people is childish and simplistic, just like Institute. The defendants argued that the ated with Walt Disney and his company wishing on a star.” song has been extensively used by Disney and commented on the song while at the The court noted that the visual refer- and is generally associated with Walt same time pointing out Walt Disney’s ence to Pinocchio by the creators makes Disney and his company. This is impor- purported anti-Semitism. The defendants clear “that this is not a case in which tant because part of the parody argument argued that the song turned the inno- the creators simply substituted new lyr- relies on the fact that Walt Disney was cence and sweetness of the idyllic Disney ics for a known song ‘to get attention purported to be anti-Semitic. message on its head by ignorantly con- or to avoid the drudgery in working up something fresh,’” but, rather, that the THE LEGAL ACTION creators were “clearly attempting to com- The major facts in the case were not ment in some way on the wishful, hope- in dispute. The parties both agreed that WHILE PARODY ful scene” in Pinocchio with which the the defendants’ use of the song “When original song is associated. Additionally, You Wish Upon a Star” would be an AND SATIRE SERVE the court found that even if the new song infringement of Bourne’s rights under did not speak as clearly as it did, and the Copyright Act, but for a finding of AN IMPORTANT even if the jokes contained therein were fair use. The parties agreed that the new not funny, the First Amendment would song incorporated musical elements of FUNCTION BY still protect the new song as a parody. the original song in a manner “intended The court also found support for its to evoke” the original song. The parties SHEDDING LIGHT finding of a parody in the inside joke further agreed that at least one purpose about the purported anti-Semitism of of the new song was to “hold bigotry and ON EARLIER WORKS, Walt Disney. The court agreed that people like Peter . . . up to ridicule.” the creators specifically used the song NOT ALL hUMOROUS because of its association with Walt Dis- IS “I NEED A JEW” A PARODY OR ney’s name and had the character wish SATIRE? COMMENTARies are for a Jew, which an anti-Semite would Because the fair use defense is applied clearly never do. In fact, it noted that differently to parodies and to satires, the permissible under this inside joke is particularly relevant court first looked at whether “I Need a copyright law. because the creators made an additional Jew” is a parody, a satire, or neither. A joke as to Disney’s purported anti-Semi- parody is defined as “a literary or musical tism years later in a different Family Guy work in which the style of an author or episode, but well prior to the instigation work is closely imitated for comic effect of this lawsuit. For these reasons, the new or in ridicule,” and a satire is defined as taining lyrics about inappropriate racial song was held to be a parody. That find- “a literary work holding up human vices stereotypes as well as lyrics that earnestly ing alone, however, was not sufficient to and follies to ridicule or scorn.”3 Thus, wished for a Jew to appear and magically find fair use. the distinction between a parody and a solve the financial problems at issue. satire turns on the object of the “com- Bourne argued that there was no THE FAIR USE OF “WHEN YOU WISH ment” made by the allegedly infringing proof that Walt Disney was anti-Semitic, UPON A STAR” work. A parody typically uses or refers nor that the song was iconic for Disney. Fair use is a statutory doctrine that to the original to make its point, while a Bourne also argued that the song did not requires the balancing of four factors in satire does not necessarily or usually do comment on or criticize in any way the light of the purpose of copyright law—to so. Therefore, parodies and satires have original song, but rather simply ridiculed promote the progress of science and the different tests under the fair use doctrine. racial stereotypes and anti-Semitism. arts. As mentioned in the case, the fair To be a parody, the law requires Bourne argued that nothing in the new use doctrine permits courts to avoid the that the new song must be reasonably song commented on or criticized the rigid application of copyright law if “it perceived to comment on the original or “subject matter, quality or style” of the would stifle the very creativity which that criticize or ridicule it in some way.4 That original song. law is designed to foster.” A court must is, when an author uses some elements The court agreed with the defendants, analyze all four fair use factors to come to of a prior author’s work to create a new finding that the new song does more than such a conclusion. Fair use is enumerated one, the new work must comment on just comment on ignorant stereotypes. The in section 107 of the U.S. Copyright Act the original work in a way that has some court found that the new song specifically and sets forth the following four factors “critical bearing on the substance or style calls to mind the idyllic Disney world, that to determine whether the defense should of the original” work.5 of a false world in which wishes upon stars apply: (1) the purpose and character of The defendants argued that the come true. In making this finding, it noted the use, including whether the use is of a new song was a parody in two ways: that the creators purposefully visually rep- commercial nature; (2) the nature of the (1) because it was a comment on the licated the wishful and innocent scene in copyrighted work; (3) the amount and “saccharine sweet,” “innocent,” and Pinocchio in which the original song is sung. substantiality of the work used in relation

Published in Entertainment and Sports Lawyer, Volume 27, Number 2, Summer 2009. © 2009 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. to the work as a whole; and (4) the effect similar unlicensed works would substitute as “I Need a Jew” “lie at the heart of the of the use upon the potential market for or for and compete with licensed comedic fair use doctrine’s guarantee of breathing value of the copyrighted work.6 programs; and (2) the value of the original space within the confines of copyright.” In reviewing the first factor, the court song was harmed because the new song is Yet, fair use requires a balancing between determined that the new song was trans- highly offensive to a significant number of the goal of copyright law to promote the formative. The court found that the lyrics people. The court rejected both arguments creation of new works and the monopoly of the two songs were “almost entirely as misconceptions of the analysis required, to the creator that is granted by the Copy- different” and that the tone and message finding that when the new use is transfor- right Act. One must always traverse the of the two songs were “strikingly different.” mative, there is less of a likelihood of mar- four fair use factors in order to create a The court also noted that the wishes of ket substitution, and market harm may not successful parody argument. v the cartoon characters themselves (Peter be so readily inferred. The court noted that vs. Gepetto) are entirely different, one parody does not typically affect the market Cydney A. Tune leads Pillsbury’s copyrights wishing for a Jew to fix his financial woes in a way that is cognizable under the fourth practice section and media & entertainment and one wishing for a real boy so that he factor. Also, Bourne failed to produce any industry team and represents and advises clients could have a family. Additionally, the evidence that its market for or the value in a variety of intellectual property issues, includ- court found that the tune itself was similar, of the original song was harmed, nor did it ing copyrights and trademarks, as well as in a as indicated by the first four notes, but even argue that the new song could in any broad array of entertainment, licensing, and also somewhat different, as set forth in the way be a substitute for the original. e-commerce matters. She can be reach at cydney. remainder of the tune. As the new song As to its lost licensing revenue, the [email protected] and her bio can be viewed was found to be transformative, this factor court opined that all uses of copyrighted at www.pillsburylaw.com/cydney.tune. weighed in favor of a finding of fair use. work under a fair use rationale deprive the In reviewing the second factor, the owner of licensing fees. If a parody of the Jenna F. Leavitt focuses her practice on intel- court found that there was no question original would usurp the market for licens- lectual property litigation and transactions, and that the original song was a creative ing other comedic uses, then all parodies entertainment, technology, and Internet-related expression that fell within the “core of the would fail under such an analysis. Accord- matters. She can be reached at Pillsbury’s Los copyright’s protective purposes.” However, ing to the court, this was not what was Angeles office at 725 S. Figueroa Street, Suite the court noted that the nature of the meant or intended by the fair use doctrine. 2800, Los Angeles, California 90017, (213) work has little impact on the parody analy- The court went on to note that parodists 488-7100, or by email at jenna.leavitt@ sis, because a parody must use the creative seldom are able to obtain permission from pillsburylaw.com. work to create the parody. Thus, the court the owner of the work that they wish to afforded little weight to the second factor. parody, as the self-esteem of the copy- Endnotes In reviewing the third factor, the court right holder may not be strong enough to 1. Bourne Co. v. Twentieth Century Fox determined that the amount of the origi- permit the granting of permission for such Film Corp., et al., Case No. 07 Civ. 8580 (DAB) nal song that was used was no more than a parody in exchange for a reasonable fee. (S.D.N.Y. Mar. 16, 2009). was necessary to conjure up the original Hence, the parody defense to copyright 2. The Fair Use Doctrine of the Copyright Act is set forth in 17 U.S.C. § 107. work in order to make the object of the infringement exists precisely to make 3. Merriam-Webster’s Online Dictionary, http:// criticism recognizable. The court noted possible a use that cannot generally be pur- www.merriam-webster.com/dictionary/parody (last that the creators made the new song more chased via a license. The court thus found visited Apr. 30, 2009). like the original to ensure the audience’s that any harm inuring to the original song 4. See Campbell v. Acuff-Rose Music, Inc., 510 recognition, and that one of the creators by association with the new song was the U.S. 569, 582 (1994). 5. See Leibovitz v. Paramount Pictures Corp., even had reservations about making the exact use of the original song that the law 137 F.3d 109, 113 (2d Cir. 1998) (quoting Campbell, changes because his contract required is supposed to protect. Therefore, the court 510 U.S. at 582). him to create unique songs. Nonetheless, found that the fourth factor also weighed 6. See 17 U.S.C. § 107. according to the defendants, the first four in favor of a finding of fair use. notes were changed to specifically make Accordingly, the court found that reference to the original song more ap- factors one, three, and four each weighed parent to the audience. The court noted heavily in support of the defendants, that the defendants could have borrowed and that the second factor was relatively substantially all of the original song if that meaningless in the overall determina- amount of borrowing was necessary “to tion. Thus, the court held that “I Need allow the parodic character of their work a Jew” was a parody of “When You Wish to come through.” Accordingly, the court Upon a Star,” protected by the fair use found that this factor weighed in favor of a doctrine, and dismissed the lawsuit. finding of fair use. In reviewing the fourth and final factor, CONCLUSION the court determined that the new song While parody and satire serve an im- had no effect on the value of or potential portant function by shedding light on ear- market for the original song. Bourne argued lier works, not all humorous commentar- that (1) it was deprived of substantial ies are permissible under copyright law. As licensing revenue because widespread, this case shows, transformative works such