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Law School Case Brief

Fisher v. Dees - 794 F.2d 432 (9th Cir. 1986)


In restating the fair-use doctrine in 17 U.S.C.S. § 107, Congress enumerated four nonexclusive factors for courts to consider: (1) purpose and character of use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) nature of the copyrighted work; (3) amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) effect of the use upon the potential market for or value of the copyrighted work. In addition, Congress listed examples of the sort of activities the courts might regard as fair use under the circumstances. Congress named parody as one of these activities. Nonetheless, parody was not classified as a presumptively fair use. Each assertion of the parody defense must be considered individually, in light of the statutory factors, reason, experience, and, of course, the general principles developed in past cases.


Plaintiffs Marvin Fisher and Jack Segal composed and own the copyright to the '50s standard "When Sunny Gets Blue " (Sunny) In late 1984, a law firm representing defendants, disc jockey Rick Dees, Atlantic Recording Corp., and Warner Communications, Inc., which contacted Fisher and requested permission to use part or all of the music to Sunny in order to create a comedic and inoffensive version of the song. Fisher refused the request. A few months later, Dees released a comedy record album (also issued in cassette form) called Put It Where the Moon Don't Shine. One cut on the album, entitled "When Sonny Sniffs Glue" (the parody), was an obvious take-off on Plaintiffs' song. The parody ran for 29 seconds of the approximately 40 minutes of material on Dees's album. Plaintiffs brought an action in federal district court for copyright infringement, unfair competition, product disparagement, and defamation. The district court granted summary judgment in favor of Defendants on all the Plaintiffs' claims, and Plaintiffs sought appellate review. Defendants urged affirmance of summary judgment on the claim for copyright infringement on the ground that the copying of the song for purposes of parody constituted a fair use.


Did the copying of the song for purposes of parody constitute a fair use, thereby justifying the grant of summary judgment?




The Court of Appeals for the Ninth Circuit affirmed the grant of summary judgment in favor of Dees and the other defendants, holding that Dees’ parody of Sunny was protected by the fair use doctrine. According to the Court, Dees’ behavior in using the song after being refused permission was not in bad faith. The fact that Dees’ use of the song was commercial in nature was not fatal because Dees’ se was more in the nature of editorial than an attempt to capitalize financially on the composers’ original work. The Court noted that the two songs did not fulfill the same demand and, thus, the parody had no economic effect on the original. The brevity of Dees’ use militated against finding a taking of Plaintiffs' rights in the song. The Court held that federal copyright law preempted the state law unfair competition claim.

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