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Burnett v. Twentieth Century Fox Film Corp. - 491 F. Supp. 2d 962 (C.D. Cal. 2007)


The Copyright Act of 1976 protects the fair use of another's copyrighted work. The fair use of a copyrighted work for purposes such as criticism and comment is not an infringement of copyright. In determining whether the use of a made work in any particular case is a fair use the factors to be considered shall include: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (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 on the potential market for or value of the copyrighted work. 17 U.S.C.S. § 107. The fair use doctrine calls for a case-by-case analysis. The text of 17 U.S.C.S. § 107 employs the terms "including" and "such as" in the preamble paragraph to indicate the illustrative and not limitative function of the examples given. Courts must consider and weigh all four factors. The court may conduct a fair use analysis, as a matter of law, where the facts are presumed or admitted.


On or about April 23, 2006, Twentieth Century Fox ("Fox") aired an episode of "Family Guy" entitled "Peterotica." Near the beginning of the episode, the Griffin family patriarch, Peter Griffin, an "Archie Bunker"-like character, entered a porn shop with his friends. Upon entering, Peter remarked that the porn shop was cleaner than he expected. The screen then switched for less than five seconds to an animated figure resembling the "Charwoman" from the Carol Burnett Show, mopping the floor next to seven "blow-up dolls," a rack of "XXX" movies, and a curtained room with a sign above it reading "Video Booths." As the "Charwoman" mopped, a slightly altered version of Carol's Theme from The Carol Burnett Show was playing. The scene switched back to Peter and his friends. One of the friends remarked: "You know, when she tugged her ear at the end of that show, she was really saying goodnight to her mom." Another friend responded, "I wonder what she tugged to say goodnight to her dad," finishing with a comic's explanation, "Oh!" In response to the Family Guy clip, plaintiffs Carol Burnett and Whacko, Inc., filed a lawsuit in federal district court against Fox for: (1) copyright infringement; (2) violation of the Lanham Act, 15 U.S.C.S. § 1125; (3) violation of California's statutory right of publicity, Civil Code § 3344; and (4) common law misappropriation of name and likeness. Fox filed a motion to dismiss plaintiffs' claims. Fox also filed a special motion to strike Burnett's supplemental state law under California's anti-SLAPP statute, California Code of Civil Procedure § 425.16.


Did Fox infringe Carol Burnett's and Whacko, Inc.'s copyrighted material?




The court granted Fox's motion to dismiss and denied Fox's special motion to strike as moot. As to the claim that Fox infringed plaintiffs' copyrighted material, the court agreed with Fox that the claim was barred by the doctrine of fair use under 17 U.S.C.S. § 107. The purpose and character of the use was transformative because it created a parody of the entertainer for comic effort. The court rejected plaintiffs' contention that Fox took more of Burnett's character and theme music than was necessary to place the image in the minds of viewers. The court also found that commercial substitution was not likely in the instant case. As to the claim under 15 U.S.C.S. § 1125, the court found no likelihood that viewers would be confused by Fox's use of the Burnett's character. Further, Fox’s parodic work was considered noncommerical speech and, therefore, was not subject to any trademark dilution claim. The court declined to exercise supplemental jurisdiction pursuant to 28 U.S.C.S. § 1367(c)(3) over the remaining state law claims.

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