Quote:
Originally Posted by JohnnyChavello
It is more complicated than just whether or not it's commercial. 2 Live Crew's use was commercial, but it wasn't advertising. What the court is saying in Campbell is that a use in advertising is less likely to be considered fair, and therefore, even further down the scale of what is considered to be a "commercial" use.
In a case decided after Campbell, a circuit court decided whether or not a parody of Demi Moore's naked and pregnant Vanity Fair cover photograph was infringed by a poster for Naked Gun 33 1/3. In that case, the court talked about the language in Campbell that suggests that the use of a copyrighted work, "even in a parody," "to advertise a product" is less likely to be considered a fair use. They actually found that the poster (an advertisement) was a fair use, but drew another line, suggesting that they were somewhat persuaded by the idea that the advertisement was connected to an artistic work (a movie) and, by implication, it would be harder to reach the same result if it were an advertisement for a consumer product, which is what Goldieblox is, a product. So, Goldieblox is now even further out on the limb of what's considered to be commercial. It's still an open question, and I know a lot of very smart people who've disagreed with me about this specifically, but I don't think there's any question that it's even more commercial than either Campbell or the Naked Gun case and commerciality is still an important part of the law in fair use cases.
Beyond the current law, recognizing a strong distinction between artistic expression and mere advertising is crucial for artists. Blurring that line will actually make it harder for musicians and others to argue that their work is entitled to greater protection and if all works are treated the same, my expectation would be that over time, fair use will contract as a response to the broader scope, and both artistic works and purely corporate works will be negatively affected.
It's hard to understand the lack of skepticism people have now about advertising. A lot of people see this ad as an artistic work in it's own right and not a vehicle for a message that's intended to create goodwill, resulting in the sale of toys, and that's strange to me. In my opinion, that's just not how advertising works. Companies would (and did, for a long time) use the opposite message (sexism) to sell products. Their actual connection to the message is always utilitarian.
|
Good post. I think the argument that this advertisement is more commercial than the 2 live crew joint or the Naked Gun poster is probably a winner. I also agree its a close call on how this ends up. These days the line between what's a commercial and what's art is getting pretty blurry. And I'm sure the Court is going to consider the social statement being made in this one. An ad for a hamburger would probably get even less protection. I also don't see how this really hurts the Beasties, other than it reminds people of a cut they aren't that proud of anymore (maybe I'm jumping to conclusions there.) I think that the best argument they have is that viewers may think the Beasties endorse the product and the use of their song it, which is not the case and it goes against their wishes to have their songs used in advertisements. But I don't see anything in the add that necessarily leads me to believe that the Beasties are supporting this. At the end of the day though, it's an advertisement to sell toys!
Anyway, you make a good strong argument. I'm fairly convinced from a legal perspective. The more that I think about it's a good test case. They likely don't have any problem with the social message being sent. It's not like their song is being used to sell guns, or used on the campaign trail for some politician they disagree with. It appears as though they agree with the core speech, but that they just don't want their music being used in advertisements regardless of the nature of the speech (unless the advertisement is to promote their own music). It's actually a pretty intellectually honest position.