RESPONDENT: Loew's Inc.
LOCATION: CBS Broadcast Center
DOCKET NO.: 90
DECIDED BY: Warren Court (1957-1958)
LOWER COURT: United States Court of Appeals for the Ninth Circuit
CITATION: 356 US 43 (1958)
ARGUED: Jan 29, 1958
DECIDED: Mar 17, 1958
Facts of the case
Media for Columbia Broadcasting System, Inc. v. Loew's Inc.
Audio Transcription for Oral Argument - January 29, 1958 in Columbia Broadcasting System, Inc. v. Loew's Inc.
No. 90, Columbia Broadcasting System Incorporated, the American Tobacco Company and Jack Benny versus Loew's Incorporated and Patrick Hamilton.
Mr. Carman you may proceed?
W. B. Carman:
Mr. Chief justice, may it please the Court.
This is a case of first impression which tests the right of the copyright in order to limit, control or prohibit some other author in the creation of a parody or burlesque and in that -- to that extend it test the legitimacy of the arts of parody and burlesque.
Before I state the facts, I'd like to get a little terminology out of the way.
There will be no distinction made there in my talk between the voice of parody or burlesque.
The nature of the parody or burlesque, there may be some distinctions that I shan't make them.
The nature of parody or burlesque, I may say it's pretty easier to recognize, one that it is to define one, but the art consists generally in picking on some original, and in this discussion the original will be limited to a particular work of a particular author and then by use of exaggeration, distortion, all of the comic arts, all of the arts of humor, turning that original, metamorphosing as it might be the original and it's something comic and unusual.
The peculiar and unique effect with parody is really created by its audience and to a certain extent, where the writer presents sufficient similarities to the original in his work, so that the both similarities call back to the audience, their remembrance of what they first saw, and then they contrast that, in their minds with the funny things which the new author has done with it and that produces that rare unique result of a parody.
Its peculiar humor lies in the fact that the audience recognizes the object of a parody, and if doesn't recognize the object, then it fails.
So obviously the parodist needs to use a good deal of the original copyrighted work, because he has to point up the similarities between that work and his work, as well he does the differences.
Now I come to the facts of this case.
You may need to rely on the memory of the audience to the original?
W. B. Carman:
He stimulates the memory of the audience of the original if I may say it, Justice Frankfurter.
In 1944 Loew's Incorporated produced a very fine motion picture called ‘Gaslight' which was copyrighted.
It was based on a play by Mr. Hamilton, but the play is not involved in this case, only the motion picture copyright and there is a synopsis of this melodrama in the appendix to our brief.
It was an expensive play, a very successful play; it played to about altogether around 15 million people.
In 1946, it was withdrawn from domestic exhibition, but it continued to be used abroad.
Mr. Benny as we probably all know was a very successful comedian and actor in the motion pictures, satires, stage, screen, radio and television and he had accustomed in his radio programs, so that from time to time, the parody or burlesque of various motion pictures, and when he came into television in 1952, he put on a television parody or burlesque of this picture ‘Gaslight,' this Loew's motion picture ‘Gaslight', and it was about 15 minutes skit on his television program in which he -- it was stated to be a satire on Gaslight and he took a few of the incidents in the general storyline.
Did he make it with the parody or did he leave that to the audience?
W. B. Carman:
He said it was a satire on the production of ‘Gaslight,' the words that I think he used and there's a synopsis to that also in the appendix to our brief to the extent that anybody can synopsize a parody or burlesque.
Loew's objected to that action on the ground that it wasn't infringement of copyright.
The Broadcasters claimed that it was fairly used and nothing was done about that particular program.
That happened to have been what we call a live broadcast; it was a broadcast direct from the stage over the air.
Now subsequently it became the custom to a photograph he had broadcast and put then on the film.
And when I met Mr. Benny in 1953, was preparing his next season's series of five programs, he decided to repeat or remake this broadcast, this parody of ‘Gaslight'.
Loew's found out that he was about to do that through the newspaper publicity and they got a temporary restraining order against the production of the program.
That temporary restraining order was amended by stipulation to permit the photographing of the program on film; the case was then tried on stipulated facts.
There was only one witness, a Dr. Baxter of the University of Southern California who talked about the literary rights; and the court held that there wasn't infringement.