On this day in 2007, the copyright owner of the song “When You Wish Upon A Star” sued the makers of Family Guy for copyright infringement. In Bourne Co. v. Twentieth Century Fox Film Corp., Bourne claimed that the song “I Need A Jew” was a “thinly-veiled copy” of the music from “When You Wish Upon A Star,” coupled with new anti-Semitic lyrics. The U.S. Federal Court in the Southern District of New York dismissed the case and held that “I Need A Jew” was a parody of “When You Wish Upon A Star” and constituted fair use under the U.S. Copyright Act.
In the Family Guy episode titled “When You Wish Upon A Weinstein,” the father character, Peter Griffin, hears his friends talk about how people with Jewish-sounding names have helped them with their finances. He then decides that he too needs to hire a Jewish person to manage his family’s finances. In a scene very similar to the one in Pinocchio (the movie for which the original song was written) in which Gepetto sees a star in the sky and wishes for a real boy, Peter looks out his window, sees a lone star in the sky and sings the song with the following lyrics:
Nothing else has worked so far,
So I’ll wish upon a star,
Wondrous dancing speck of light,
I need a Jew.
Lois makes me take the rap,
‘Cause our check-book looks like crap,
Since I can’t give her a slap,
I need a Jew.
Where to find a Baum or Steen or Stein
To teach me how to whine and do my taxes?
Though by many they’re abhorred,
Hebrew people I’ve adored.
Even though they killed my Lord*
I need a Jew.
*[The court noted that in an alternate version of the song this line was changed to “I don't think they killed my Lord.”]
Fox originally decided not to air the episode due to the controversial religious content. However, the episode was later distributed on DVD by Fox Home Entertainment, telecast by the Cartoon Network, and eventually televised by Fox Broadcasting.
The defendants claimed that the use of the song was a parody in two ways: 1) as a comment on the “saccharine sweet,” “innocent” and “wholesome” worldview presented in and represented by “When You Wish Upon a Star,” and 2) by evoking “the song most associated with Walt Disney and his company” commenting “on the song while simultaneously making a sharp point about Walt Disney’s reputed anti-Semitism.” The plaintiff claimed that the new song was being used as satire, merely to comment on bigotry and racism generally. Copyright law treats parody and satire differently. The distinction between the two usually turns on the object of the “comment” made by the allegedly infringing work. A parody comments on the original copyrighted work itself. A satire may use a copyrighted work, but its aim is to comment about something else. The fair use defense provides far greater protection for parodies than satires.
The court found that by juxtaposing the “saccharin sweet” song “When You Wish Upon a Star” with “I Need a Jew” the defendants did more than just comment on racism and bigotry generally. Rather, the court said, the defendants’ use of “When You Wish Upon a Star” “calls to mind a warm and fuzzy view of the world that is ultimately nonsense; wishing upon a star does not, in fact, make one’s dreams come true.” The court further agreed that the song makes a comment about the widespread belief that Walt Disney was anti-Semitic. The defendants thought it would be “perfect, cutting commentary to use the iconic song most closely-associated with Walt Disney, Wish Upon a Star, in a parodic reverie where the main character ‘wishes upon a star’ for, of all things, a Jew,” something an anti-Semite would never do.
Because parody alone is not sufficient for a court to find fair use, the court analyzed the four fair use factors set out in Section 107 of the Copyright Act: 1) purpose and character of the use; 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 upon the potential market for or value of the copyrighted work. In reviewing the first factor, the court found that the work added something new to the original and was transformative because the lyrics of the two songs were almost entirely different, and were “strikingly different” in tone and message. In reviewing the second factor, the court acknowledged that the original copyrighted work was a “creative expression” that fell within the “core of the copyright’s protective purposes,” but the court placed little weight in this second prong because the very nature of a parody is to copy publicly known, expressive works. In reviewing the third factor, the court found that even if the defendants took substantially all of the song, “that borrowing was necessary to allow the parodic character of their work to come through.” Lastly, the court found that the fourth factor weighed in favor of the defendants because the new song did not usurp the market of the original work. The plaintiff had argued that such widespread unlicensed uses of the work would deprive the copyright holder of significant licensing revenues. However, the court responded to this claim by noting:
Plaintiff argues for a reading of the fourth factor that would swallow the rule entirely. All uses of copyrighted work under a fair use rationale deprive the owner of licensing fees. If a parody of the original work would usurp the market for licensing other comedic uses of the original work, then all parodies would fail under this prong of the analysis. The Supreme Court clearly intended otherwise as did Congress in creating an opportunity for fair use under 17 U.S.C. § 107.
The court found that factors one, three and four weighed heavily in favor of fair use. It afforded little weight to the second factor. Consequently, the court held that the defendants’ use of “When You Wish Upon A Star” was a parody that constituted fair use.
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