General Practice, Solo & Small Firm DivisionMagazine
Volume 17, Number 2
INTELLECTUAL PROPERTY LAW
COPYRIGHT INFRINGEMENT OF A SHOW ABOUT NOTHING
BY DAVID P. MIRANDA
Is it possible to infringe on a copyright owner's rights to a TV show about "nothing"? According to New York's Second Circuit Court of Appeals, it is, when the creators of the show elevate "nothingness" into the "realm of protectable creative expression." In Castle Rock Entertainment v. Carol Publishing Group, the producer and copyright owner of the Seinfeld television series commenced a copyright infringement action against defendant for publishing the Seinfeld Aptitude Test (SAT), a book containing hundreds of questions regarding the characters, dialogue, and plot details of most episodes of the comedy series.
The book contained questions divided into five levels of difficulty, each taken directly from a fictional moment in a Seinfeld television episode, with the most difficult described as "Master of Your Domain" questions. For example, level one contained the question, "What candy does Kramer snack on while observing a surgical procedure from an operating-room balcony?" The Second Circuit affirmed the district court's granting of summary judgment to plaintiff, Castle Rock, holding that the defendants had violated plaintiff's copyrights of Seinfeld and such copying did not constitute fair use. On appeal, plaintiff argued that the trivia book incorporates only unprotectable "facts" about the series and secondly, the fair use defense was applicable to any copying that occurred.
Defendants' argument that its book did not copy from Seinfeld's creative expression but rather from unprotected facts was rejected by the court, which discussed the Supreme Court's decision in Feist Publications and held that "unlike the facts in a phone book, which do not owe their origin to an act of authorship, each 'fact' tested by the SAT is in reality fictitious expression created by Seinfeld's authors."
The court noted that the book did not quiz true facts, such as the identity or biographies of the actors, the number of days it took to shoot an episode or the location of the set. Rather, the trivia book tested whether the reader knew that the main character, Jerry, placed a PEZ dispenser on Elaine's leg during a piano recital. The court found that "because these characters and events spring from the imagination of Seinfeld's authors, the SAT plainly copies copyrightable, creative expression."
The defendants argued the fair use defense applies because of the "transformative" qualities of the purpose, character, or use of the book when compared to the television show. First, it should qualify as criticism, comment, scholarship, or research in the same manner as a text testing one's knowledge of Joyce's Ulysses or Shakespeare's Hamlet. Second, they argued that the book exposed all of the show's "nothingness" to articulate its true motive and its social and moral dimensions. The court rejected these arguments, noting that any transformative purpose possessed by the book was slight to nonexistent, and that the book did not contain commentary or analysis about Seinfeld, nor did it suggest how the book could be used to research Seinfeld. Rather, the court found the book simply posed trivia questions.
After careful review, the court found that the book's plain purpose was not to expose Seinfeld's "nothingness" but rather to satiate the fans' passion for the "nothingness" that Seinfeld had elevated into the realm of protectable creative expression. In analyzing the amount and substantiality of the portion used in the book in relation to the copyrighted work as a whole, the court found that even using the defendants' estimate of 3.6 percent verbatim copying, the trivia book took too much of the original. This was particularly true because the defendants' book seized on a notion that lay at the very heart of Seinfeld-that there's humor in the mundane, trivial aspects of everyday life.
Finally, the defendants argued that the final statutory factor to be considered under the fair use defense, the effect of the use on the potential market for or value of the copyrighted work, favored their case because Castle Rock could not prove actual market harm caused by the book. In fact, the show's audience actually grew after the book's publication and Castle Rock had indicated only a minimal interest in publishing Seinfeld-related books.
The court noted that although Castle Rock had evidenced little if any interest in exploiting the market for derivative works based on Seinfeld, "it would…not serve the ends of the Copyright Act…if artists were denied their monopoly over derivative versions of their creative works merely because they made the artistic decision not to saturate those markets with variations of their original." The court acknowledged the potential for numerous books to publicly expose the "nothingness" of Seinfeld or otherwise comment on, criticize, or research the show and contemporary television. Because the SAT failed to do so, the claimed fair use defense did not apply.
David P. Miranda is with Rowley, Forrest, O'Donnell & Beaumont, P.C., in Albany, New York, and is a member of the ABA/YLD Intellectual Property and Computer Law Committee.
For more Information About the Intellectual Property Law Section
- This article is an abridged and edited version of one that originally appeared on page 23 of IPL Newsletter, Fall 1998 (17:1).
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- Website: www.abanet.org/intelprop/.
- Periodicals: IPL Chair's Bulletin, a monthly update of Section activities and timely intellectual property issues; IPL Newsletter, a quarterly newsletter with current developments and Section news; Annual Report, a comprehensive summary of committee activities.
- Books and Other Recent Publications: Pamphlet series intended for clients, including Marketing Your Invention, Submitting an Idea, What Is a Patent?, What is a Trademark?, What is a Copyright? Extensive course materials in connection with CLE programs are also available.