Elsmere Music, Inc. v. National Broadcasting Co.

• Decision Date: 09 January 1980
• Docket Number: No. 79 Civ. 0620(GLG).,79 Civ. 0620(GLG).
• Citation: 482 F. Supp. 741
• Parties: ELSMERE MUSIC, INC., Plaintiff, v. NATIONAL BROADCASTING COMPANY, INC., Defendant.
• Court: U.S. District Court — Southern District of New York

482 F. Supp. 741

ELSMERE MUSIC, INC., Plaintiff, v. NATIONAL BROADCASTING COMPANY, INC., Defendant.

No. 79 Civ. 0620(GLG).

United States District Court, S. D. New York.

January 9, 1980.

COPYRIGHT MATERIAL OMITTED

Siegert & Miller, New York City, for plaintiff; Paul W. Siegert, New York City, of counsel.

Coudert Brothers, New York City, for defendant; Carleton G. Eldridge, Jr., Pamela G. Ostrager, R. David Jacobs, New York City, of counsel.

OPINION

GOETTEL, District Judge:

In the dark days of 1977, when the City of New York teetered on the brink of bankruptcy and its name had become synonymous with sin, there came forth upon the land a message of hope. On the television screens of America there appeared the image of a top-hatted Broadway showgirl, backed by an advancing phalanx of dancers, chanting:

"I-I-I-I-I-I Love New Yo-o-o-o-o-o-rk!"

Repeated again and again (to musical accompaniment), with increasing intensity throughout the commercial, this slogan was to become the theme for an extensive series of advertisements that were to bring the nation assurances from the stars of Broadway, ranging from Dracula to the Cowardly Lion, that all was well, and that they too loved New York.

As an ad campaign for an ailing city, it was an unparalleled success.¹ Crucial to the campaign was the brief but exhilarating musical theme written by Steve Karmen who had previously authored a number of highly successful commercial jingles, including "You Can Take Salem Out of the Country" and "Weekends Were Made for Michelob." While the "I Love New York" song was written for the New York State Department of Commerce, its initial use and identity focused on New York City.²

The success of this campaign did not go unnoticed in the entertainment world. On May 20, 1978, the popular weekly variety program "Saturday Night Live" ("SNL") performed a comedy sketch over defendant National Broadcasting Company's network.³ In this sketch the cast of SNL, portraying the mayor and the members of the Chamber of Commerce of the biblical city of Sodom, are seen discussing Sodom's poor public image with out of towners, and the effect this was having on the tourist trade. In an attempt to recast the City's image in a more positive light, a new advertising campaign emphasizing the less sensational aspects of Sodom nightlife is unveiled. As the highlight of this campaign the song "I Love Sodom" is sung a cappella by a chorus line of three SNL regulars to the tune of "I Love New York," with the words "I Love Sodom" repeated three times.⁴

The plaintiff, Elsmere Music, Inc., the copyright proprietor of "I Love New York," did not see the humor of the sketch. It sued for copyright infringement.⁵

The parties have now, pursuant to Fed.R. Civ.P. 56(b), cross moved for summary judgment. As no dispute exists as to the facts giving rise to this action, but only as to the legal consequences, the Court believes this case to be appropriate for summary disposition. See SEC v. Research Automation Corp., 585 F.2d 31 (2d Cir. 1978).

The defendant admits that its sketch and song were intended to resemble the original "I Love New York" advertising campaign and jingle. It claims, however, that the use made of the plaintiff's melody was no more than was necessary to create an effective parody, and that as such was, at worst, a de minimis infringement. Alternatively, the defendant asserts that, even if the infringement was more than de minimis, it still did not constitute an actionable copyright violation since such use was permitted as a fair use under section 101 of the 1976 Copyright Act, 17 U.S.C. § 107.

The plaintiff contests these assertions. It contends that the use made was not de minimis, and in fact was far more extensive than was necessary to conjure up the original. In addition, it claims that the singing of "I Love Sodom" did not constitute a fair use since it was part of a sketch that parodied New York City and the problems it was having, rather than one parodying New York State, its advertising campaign, or the song "I Love New York" itself.

In its entirety, the original song "I Love New York" is composed of a 45 word lyric and 100 measures. Of this only four notes, D C D E (in that sequence), and the words "I Love" were taken and used in the SNL sketch (although they were repeated 3 or 4 times). As a result, the defendant now argues that the use it made was insufficient to constitute copyright infringement.

This Court does not agree. Although it is clear that, on its face, the taking involved in this action is relatively slight, on closer examination it becomes apparent that this portion of the piece, the musical phrase that the lyrics "I Love New York" accompany, is the heart of the composition.⁶ Use of such a significant (albeit less than extensive) portion of the composition is far more than merely a de minimis taking.⁷ See Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49 (2d Cir.), cert. denied, 298 U.S. 669, 56 S.Ct. 835, 80 L.Ed. 1392 (1936); Life Music, Inc. v. Wonderland Music Co., 241 F.Supp. 653 (S.D.N.Y.1965). The tune of "I Love Sodom" is easily recognizable as "having been appropriated from the copyrighted work," Ideal Toy Corp. v. Fab-Lu Ltd., 360 F.2d 1021, 1022 (2d Cir. 1966); Fleischer Studios, Inc. v. Ralph A. Freundlich Inc., 73 F.2d 276, 278 (2d Cir. 1934), and is a taking of a substantial nature. See H. C. Wainwright & Co. v. Wall Street Transcript Corp., 418 F.Supp. 620 (S.D.N.Y.1976). Accordingly, such taking is capable of rising to the level of a copyright infringement.

Having so determined, the Court must next address the question of whether the defendant's copying of the plaintiff's jingle constituted a fair use which would exempt it from liability under the Copyright Act. Fair use has been defined as "a privilege in others than the owner of the copyright to use the copyrighted material in a reasonable manner without his consent, notwithstanding the monopoly granted to the owner of the copyright." H. Ball, The Law of Copyright and Literary Property 260 (1944). See Meeropol v. Nizer, 560 F.2d 1061, 1068 (2d Cir. 1977), cert. denied, 434 U.S. 1013, 98 S.Ct. 727, 54 L.Ed.2d 756 (1978); Rosemont Enterprises, Inc. v. Random House, Inc., 366 F.2d 303, 306 (2d Cir. 1966), cert. denied, 385 U.S. 1009, 87 S.Ct. 714, 17 L.Ed.2d 546 (1967). The determination of whether a use constitutes a fair use or is a copyright infringement requires an examination of the facts in each case. Meeropol v. Nizer, supra, 560 F.2d at 1068. To assist in making this determination, section 101 of the 1976 Copyright Act, 17 U.S.C. § 107, sets forth several criteria to be considered: "(1) the purpose and character of the use . . .; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work."⁸

The defendant asserts that the purpose and nature of its copying of "I Love New York" was parody, and that its copying was thus a fair use of the song. It has been held that an author is entitled to more extensive use of another's copyrighted work in creating a parody than in creating other fictional or dramatic works, Columbia Pictures Corp. v. National Broadcasting Co., 137 F.Supp. 348, 354 (S.D.Cal.1955), since "short of . . . a complete identity of content, the disparity of functions between a serious work, and a satire based upon it, may justify the defense of fair use even where substantial similarity exists." 3 M. Nimmer, Nimmer on Copyright § 13.05C, at 13-60-61 (1979).

In the leading case of Berlin v. E. C. Publications, Inc., 329 F.2d 541 (2d Cir. 1964), the court was faced with deciding whether certain parody lyrics printed in Mad Magazine, intended to comment humorously upon the "idiotic" world of that time, and designed to be sung to the tunes of various popular songs, infringed upon the copyrights of those songs.⁹ Noting that "as a general proposition, . . . parody and satire are deserving of substantial freedom," the court held that, as the defendants had taken no more of the original songs than was necessary to "recall or `conjure up' the object of his satire," and as the parody had "neither the intent nor the effect of fulfilling the demand for the original," no infringement had taken place. Id. at 545. See Columbia Pictures Corp. v. National Broadcasting Co., supra. See generally Light, Parody, Burlesque, and the Economic Rationale for Copyright, 11 Conn.L.Rev. 615 (1979).

The song "I Love Sodom," as well as the sketch of which it was a part, was clearly an attempt by the writers and cast of SNL to satirize the way in which New York City has attempted to improve its somewhat tarnished image through the use of a slick advertising campaign. As such, the defendant's copying of the song "I Love New York" seems to come within the definition of parody. The plaintiff, however, relying upon MCA, Inc. v. Wilson, 425 F.Supp. 443 (S.D.N.Y.1976), and Walt Disney Productions v. Mature Pictures Corp., 389 F.Supp. 1397 (S.D.N.Y.1975), contends that, while the sketch may have parodied New York City and its problems, it had nothing to do with, and did not parody, either New York State and its "I Love New York" advertising campaign or the song "I Love New York" itself. As a result, the plaintiff asserts that the copying of its song constituted an infringement upon it and not a fair use.

In MCA, Inc. v. Wilson, supra, the court was presented with the question of whether the song "Cunnilingus Champion of Company C" as used in the play "Let My People Come — A Sexual Musical" infringed upon the copyright of the song "Boogie Woogie Bugle Boy of Company B." Finding that the defendant's song, although it "may have sought to parody life, or more particularly sexual mores and taboos," did not attempt to parody or "comment ludicrously upon Bugle Boy" itself, the court held that there had...