Wednesday, October 21, 2009

The Nation Toes the Fair Use Line with Palin Parody

The Nation Magazine has a rather famous history of copyright infringement. In a Supreme Court decision handed down in May 1985, The Nation was found to have infringed the copyright of former President Gerald Ford. Ford had contracted with Harper and Row to publish his memoirs. Harper & Row had an agreement with Time Magazine to publish an excerpt of 7500 words detailing Ford's account of his pardon of Richard Nixon. The Nation Magazine secured the excerpt from an unauthorized source and beat Time to the punch in publication. While The Nation used a mere 300 words of the excerpt, their selection of Ford's work amounted to a violation of the author's right to control first publication of his own work according to the Supreme Court ruling:
(a) In using generous verbatim excerpts of Mr. Ford's unpublished expression to lend authenticity to its account of the forthcoming memoirs, The Nation effectively arrogated to itself the right of first publication, an important marketable subsidiary right. Pp. 471 U. S. 545-549.

(b) Though the right of first publication, like other rights enumerated in § 106, is expressly made subject to the fair use provisions of 107, fair use analysis must always be tailored to the individual case. The nature of the interest at stake is highly relevant to whether a given use is fair. The unpublished nature of a work is a key, though not necessarily determinative, factor tending to negate a defense of fair use. And under ordinary circumstances, the author's right to control the first public appearance of his undisseminated expression will outweigh a claim of fair use. Pp. 471 U. S. 549-555.
The Nation's decision to publish a parody of Palin's forthcoming book which is to be released the exact same date as Palin's book, clearly toes the line they have already been found to have crossed before.  While the parody book is a collection of essays and is unlikely to contain any use of Palin's actual memoir, the cover could pose problems:

First, the title of Palin's book "Going Rogue" is used on the cover of the parody.  The book doesn't do enough to distinguish itself as a parody.  The single line at the bottom giving credit for editing to the left leaning editors  Richard Kim and Betsy Reed, is deceptive.  It is no secret Palin worked with a ghost author who is unlikely to be a household name or easily distinguished from the names on the bottom.   A quick look at the cover tells us the upstart publisher OR Books is only trying to capitalize on Palin's blockbuster book, particularly in light of their publication date.  The book includes essays by  Katrina Vanden Heuvel, Naomi Klein, and Katha Pollitt, though their names do not appear anywhere on the cover.  .

No one would dispute the right of those authors to write essays about Palin.  Nor could you argue they have no right to publish them presuming it is their own work.  The question is clearly one whether their book would sell in any substantive way without the deceptive cover.  I have used the word parody in describing the rogue book,  but a collection of essays doesn't necessarily constitute a parody presuming Palin's book is not a collection of essays they seek to criticize or ridicule.  Clearly they intend to ridicule Palin but the cover by no means makes that perfectly clear.  Click to Or Books and look at the cover by itself or cover the half that is actually Palin's book and examine the cover, aside from the change from "An American Life" to "An American Nightmare," a buyer could easily be deceived into thinking they are buying Palin's book.  I am sure Harper Collins, Palin's publisher, is considering whether to take legal action as I write.

In my opinion,  Harper Collins could get an injunction on that cover, though it is a tough call given the uncertainty with fair use laws and infringement cases.  That the publisher is clearly attempting to confuse their book with Palin's suggests they have very little confidence in the merit or worth of Vanden Drivel's essays or their ability to sell without trading on Palin's own publication.  If they refuse to change the cover without a fight, that will tell you all you need to know about how many they believe will actually bother reading what is in their book.

H/T: Hot Air
For more see:
Gateway Pundit in their new spiffy location

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