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Bourne Co. v. Twentieth Century Fox Film Corp., et al.

In 2007, Bourne Co., the sole owner of the copyright in the well-known song When You Wish Upon a Star, brought a copyright infringement action against defendants including Twentieth Century Fox, the Cartoon Network, and Seth MacFarlane, creator of the popular television show Family Guy. Plaintiff alleged that defendants infringed upon its copyright by creating and broadcasting the song I Need a Jew, which was featured in the When You Wish Upon a Weinstein episode of Family Guy. The court granted defendants’ motion for summary judgment, finding that I Need a Jew is both a parody and protected fair use under the Copyright Act.

When You Wish Upon a Star is a popular song, originally written for and featured in the Walt Disney film Pinocchio. It has been recorded many times and has been used extensively in commercials, television and film. The song is also closely associated with Disney, having been used in the opening sequences of Disney television programs, films and theme park advertisements.

Family Guy is a popular animated, comedic television series which airs on the Fox Network and the Cartoon Network. The show regularly pokes fun at celebrities and pop-culture icons, with a brand of humor described by the court as “irreverent.” In 2000, the creators and producers of Family Guy produced an episode entitled When You Wish Upon a Weinstein, which included the song I Need a Jew and an accompanying animated sequence. The episode centers around the show’s father character, Peter, and his desire to find a Jew to help him manage his family’s finances. Peter naively believes the stereotype that all Jews are financial geniuses. In the scene which gave rise to this litigation, Peter looks “out of a window up at the night sky in a manner similar to that of the toymaker Gepetto” in Pinocchio and sings the song I Need a Jew to a tune much like that of When You Wish Upon a Star.

The parties agreed that I Need a Jew was intended to evoke When You Wish Upon a Star. Defendants initially sought a license from plaintiff to use When You Wish Upon a Star, but plaintiff refused. Furthermore, the parties agreed that, for purposes of cross-motions for summary judgment, I Need a Jew infringes plaintiff’s copyright but for a finding of fair use. Defendants argued that their use of plaintiff’s copyrighted material was justified as parody in two ways: first, “as a comment on the ‘saccharine sweet,’ ‘innocent’ and ‘wholesome’ worldview presented in and represented by When You Wish Upon a Star,” and, second, as a comment on Walt Disney’s reputed anti-Semitism.

The court first considered whether defendants’ use of When You Wish Upon a Star is parody, satire or neither, relying heavily upon the Supreme Court’s decision in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994), which dealt with 2 Live Crew’s remake of Roy Orbison’s song Pretty Woman. “[T]he heart of any parodist’s claim . . . is the use of some elements of a prior author’s composition to create a new one that, at least in part, comments on that author’s works.” Campbell, 510 U.S. at 580 (1994). While defendants argued that I Need a Jew lampooned the idyllic, fairy tale message of When You Wish Upon a Star, plaintiff claimed that the newer work ridiculed only anti-Semitism and Jewish stereotypes. The court agreed with defendants, finding that, by drawing a comparison between “wishing upon a star” and Peter’s “childish and simplistic” categorical view of a race of people, I Need a Jew could be reasonably perceived as commenting on the other song’s “warm and fuzzy view of the world that is ultimately nonsense.” The visual elements accompanying I Need a Jew in the Family Guy episode also supported the court’s classification of the song as parody. The court found this animated sequence to be evidence of defendants’ intent to parody the earlier work because the sequence plainly evokes the scene in Pinocchio that features the original song. The court also credited defendants’ argument relating to Walt Disney’s purported anti-Semitism, finding support in Internet references, a Disney biography proffered by defendants, and the fact that defendants portrayed Disney as an anti-Semite in another episode of Family Guy produced before plaintiff filed suit.

Having found that I Need a Jew is a parody, the court next applied the four-factor fair use analysis prescribed by Section 107 of the Copyright Act. As to the first factor, the purpose and character of defendants’ use, the court found that the transformative nature of I Need a Jew weighed heavily in favor of defendants. The court cited the newer song’s “almost entirely different” lyrics, which were “strikingly different in tone and message,” as well as its somewhat different tune, as evidence of this transformative nature. The court afforded little weight to the second factor, the nature of the copyrighted work, noting that it does not matter that When You Wish Upon a Star is a work at the core of copyright protection because “parodies almost invariably copy publicly known, expressive works.”

The third fair use factor, the amount and substantiality of the portion used in relation to the copyrighted work as a whole, was found to weigh heavily in favor of defendants. Although defendants intentionally sought to make the similarity of I Need a Jew to When You Wish Upon a Star instantly recognizable, the court found that MacFarlane’s deposition testimony about creative disputes over how much of the original work to use was persuasive evidence that defendants “were concerned about taking just enough of the original to make their point clear.” Considering the fourth and final factor, commercial harm, the court found that plaintiff’s market would not be usurped by defendants’ parodic use, as the parody and the original “serve different market functions.” In its aggregate analysis, the court found the first, third, and fourth factors were heavily weighted in defendants’ favor and the second factor was afforded little weight. As such, the court held I Need a Jew to be fair use and granted summary judgment in defendants’ favor.