Berlin v. EC Publications, Inc.

• Decision Date: 23 March 1964
• Docket Number: No. 255,Docket 28502.,255
• Parties: Irving BERLIN et al., Plaintiffs-Appellants, v. E. C. PUBLICATIONS, INC., et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

329 F.2d 541 (1964)

Irving BERLIN et al., Plaintiffs-Appellants, v. E. C. PUBLICATIONS, INC., et al., Defendants-Appellees.

No. 255, Docket 28502.

United States Court of Appeals Second Circuit.

Argued January 10, 1964.

Decided March 23, 1964.

Julian T. Abeles, New York City, for plaintiffs-appellants.

Martin J. Scheiman, of Scheiman, Albert & MacLean, New York City (Jack N. Albert, New York City, of counsel), for defendants-appellees.

Before LUMBARD, Chief Judge, and KAUFMAN and MARSHALL, Circuit Judges.

IRVING R. KAUFMAN, Circuit Judge.

Through depression and boom, war and peace, Tin Pan Alley has light-heartedly insisted that "the whole world laughs" with a laugher, and that "the best things in life are free." In an apparent departure from these delightful sentiments, the owners of the copyrights upon some twenty-five popular songs instituted this action against the publishers, employees and distributors of "Mad Magazine," alleging that Mad's publication of satiric parody lyrics to plaintiffs' songs infringed the copyrighted originals, despite Mad's failure to reproduce the music of plaintiffs' compositions in any form whatsoever. Twenty-five causes of action were alleged, each representing a particular song copyrighted by the plaintiffs and parodied by the defendants.

On cross-motions under Rule 56, F.R.Civ.P., the District Court awarded summary judgment to the defendants as to twenty-three of the claims, finding no similarities in mood, content, or purpose between the original lyrics and the parodies; concluding that the two remaining causes of action presented closer questions, the court denied summary relief to both parties as to these two claims. Asserting that the District Court decision constituted an invitation to plagiarism, the plaintiffs appealed.¹

The validity of plaintiffs' copyrights has never been challenged, and we need concern ourselves here only with the nature, purpose and effect of the alleged infringements. The parodies were published as a "special bonus" to the Fourth Annual Edition of Mad, whose cover characterized its contents as "More Trash From Mad — A Sickening Collection of Humor and Satire From Past Issues," and almost prophetically carried this admonition for its readers: "For Solo or Group Participation (Followed by Arrest)." Defendants' efforts were billed as "a collection of parody lyrics to 57 old standards which reflect the idiotic world we live in today." Divided into nine categories, ranging from "Songs of Space & The Atom" to "Songs of Sports," they were accompanied by the notation that they were to be "Sung to" or "Sung to the tune of" a well-known popular song — in twenty-five cases, the plaintiffs' copyrighted compositions. So that this musical direction might feasibly be obeyed, the parodies were written in the same meter as the original lyrics.

The District Court observed that the theme and content of the parodies differed markedly from those of the originals. Thus, "The Last Time I Saw Paris," originally written as a nostalgic ballad which tenderly recalled pre-war France, became in defendants' hands "The First Time I Saw Maris," a caustic commentary upon the tendency of a baseball hero to become a television pitchman, more prone to tempt injury with the razor blade which he advertises than with the hazards of the game which he plays. Similarly, defendants transformed the plaintiffs' "A Pretty Girl Is Like a Melody," into "Louella Schwartz Describes Her Malady"; what was originally a tribute to feminine beauty became a burlesque of a feminine hypochondriac troubled with sleeplessness and a propensity to tell the world of her plight. As might be inferred from the range of categories presented and the foregoing examples of defendants' works, the parodies were as diverse in their targets for satire as they were broad in their humor.

While the plaintiffs have resolutely insisted that the defendants' use of the original songs as a vehicle for the parodies was wrongful, and have alleged, in general terms, that the claimed infringements "caused substantial and irreparable damage," they have not indicated with any degree of particularity the manner in which injury might have been inflicted. There is no allegation akin to "passing-off"; with considerable reason, the plaintiffs have not asserted that the music-buying public could have had any difficulty in differentiating between the works of plaintiffs and defendants. Neither is there a claim that defendants' parodies might satisfy or even partially fulfill the demand for plaintiffs' originals; quite soundly, it is not suggested that "Louella Schwartz Describes Her Malady" might be an acceptable substitute for a potential patron of "A Pretty Girl Is Like a Melody."

Rather, plaintiffs appear to seek redress upon a theory of copyright relief, closely resembling that behind recovery for unjust enrichment. Pointing to the use of the titles, the meter, and an occasional phrase from the original lyrics in an occasional song, the plaintiffs insist that their copyrighted efforts were improperly appropriated by the defendants for their own financial gain. Asserting that the copyright laws restrict the economic benefits of copyrighted works to the copyright holders, they reject the notion that a parody or burlesque version of the original may ever be justified as the sort of "fair use" which traditionally has permitted a literary critic to employ limited quotations from the copyrighted work under review. Cf. Lawrence v. Dano, 15 Fed.Cas. 25, 61 (No. 8136) (C.C.D.Mass. 1869). Indeed the plaintiffs broadly maintain, "copying for commercial gain may never be fair use" and thus, in effect, they refuse to recognize parody and burlesque as independent forms of creative effort possessing distinctive literary qualities worthy of judicial protection in the public interest.

While indeed broad, the area in which a copyright proprietor is permitted the exclusive commercial benefits of his copyrighted work is clearly not without limit. In the words of Article I, Section 8, of the Constitution, copyright protection is designed "To promote the Progress of Science and useful Arts," and the financial reward guaranteed to the copyright holder is but an incident of this general objective, rather than an end in itself. As a result, courts in passing upon particular claims of infringement must occasionally subordinate the copyright holder's interest in a maximum financial return to the greater public interest in the development of art, science and industry. See Gorman, Copyright Protection for the Collection and Representation of Facts, 76 Harv.L.Rev. 1569 (1963).

Turning to the specific question before us, we find that the extent to which a parodist may borrow from the work he attempts to burlesque is largely unsettled. The earlier American cases, although generally cited in most discussions of the question, are of little assistance. Such decisions as Bloom & Hamlin v. Nixon, 125 F. 977 (C.C.E.D.Pa.1903); Green v. Minzensheimer, 177 F. 286 (C.C.S.D.N.Y. 1909); and Green v. Luby, 177 F. 287 (C. C.S.D.N.Y.1909), did not deal with the parody of a copyrighted work, but with imitations of a particular artist's style of performing, in which portions of a copyrighted song were incidentally employed. Cf. Broadway Music Corp. v. F-R Pub. Corp., 31 F.Supp. 817 (S.D. N.Y.1940). Alternatively, in ...