Episode 709: The Quiet Old Lady Who Whispers "Fair Use" : Planet Money Where is the line between being inspired by somebody's creative work and stealing it?
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Episode 709: The Quiet Old Lady Who Whispers "Fair Use"

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Episode 709: The Quiet Old Lady Who Whispers "Fair Use"

Episode 709: The Quiet Old Lady Who Whispers "Fair Use"

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  • <iframe src="https://www.npr.org/player/embed/484230268/484395912" width="100%" height="290" frameborder="0" scrolling="no" title="NPR embedded audio player">
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Every night in my house things follow this pretty predictable pattern. I walk in the door. I say hello to my wife. I put down my bag and then my 2-year-old daughter, Hope, takes complete control.


ROMER: The routine is straightforward. It never varies. First, Hope has dinner. She is partial to cheese.

HOPE: More cheeses.

ROMER: You want more cheese?

HOPE: Yep.

ROMER: We'll brush her teeth, put on pajamas and then we'll read bedtime stories.

What book should we read?

HOPE: "Night Moon."

ROMER: You want to read "Goodnight Moon?"

She always wants to read "Goodnight Moon." I have read the book literally hundreds of times since she was born.

(Reading) In the great green room there was a telephone and a red balloon and a picture of cow jumping over the moon.

It's a great book.

Do you see the kittens?

HOPE: Kittens.

ROMER: Do you see the mittens?

HOPE: Mittens.

ROMER: Do you see the bunny rabbit going to sleep?

HOPE: Bunny rabbit want sleep.

ROMER: But some nights I just get a little bit bored with "Goodnight Moon" and I go off script.

Do you see the quiet old lady just sitting by herself knitting, wondering what happened to her dreams?

HOPE: Yep.

ROMER: And at some point, I was just like I can do better than this. I can out goodnight moon "Goodnight Moon." So I wrote a spin-off, my own version. And then I had the thought - can I sell this? Can I publish my book without breaking the law?


ROMER: Hello, and welcome to PLANET MONEY. I'm Keith Romer.


And I'm Jacob Goldstein.

ROMER: Today on the show - can I do it?

GOLDSTEIN: And more generally, beyond just you, Keith, we ask where's the line between being inspired by somebody's work and stealing it. Romer, you've actually written this book. You've got illustrations. Just give me a little hit.

ROMER: Kittens and mittens and the little house, before the curse of the little mouse, I was the cow jumping over the moon. I was the moon. Now...


GOLDSTEIN: OK. So, Romer, I have kids. You have kids. We know "Goodnight Moon." We have been informed that there are people who do not know "Goodnight Moon." So real quick - synopsis.

ROMER: So there's this room with all these things in it. You heard me reading that to Hope earlier. There's basically two characters - a bunny kid going to bed and this old bunny lady in blue who sits and knits and whispers hush, and that's all she does. And I wanted to know what is the deal with that bunny lady? Like, who was she in her bunny youth before she turned to a life of knitting and whispering hush? So that is the story I wrote. It's, like, her backstory, how she got here.

GOLDSTEIN: And of course, Keith, if you want to just write this thing and read it to Hope, that's fine, right, no problem. You can do whatever you want. But once you decide you want to sell it, you want to make money off it, then you get into all these legal questions. And they arise because of this really interesting conflict I'm going to say in what we want as a society from our creative works. You know, we want to protect people who make creative stuff. You write "Goodnight Moon," you should be able to sell it. Keith, you shouldn't be able to come along and just steal "Goodnight Moon." That's clearly bad, right?

But at the same time, we don't want the person who wrote "Goodnight Moon" to own all books about moons or to own all bunny rabbits in children's books forever, right? We want people like you, Keith, creative people to come along and to build on "Goodnight Moon," to be inspired by it, to make new books that maybe even reference it.

ROMER: So to reconcile these two contradictory ideas, we have laws that try to tell us what's OK and what's not OK. And because we have laws, we have lawyers.

ALEX KAPLAN: My name is Alex Kaplan. I'm a partner at the law firm of Proskauer Rose, and I specialize in intellectual property law and in particular copyright law.

ROMER: Alex is an old, old friend of mine, and he came in to help me figure out whether I could sell my book.

GOLDSTEIN: So first thing he said - the basic law that protects artistic creations, of course, is copyright law. And just looking at that, Romer, I would not think you have a good chance. I mean, copyrights last for a really long time in this country. The copyright on "Goodnight Moon" lasts for 95 years until 2042.

ROMER: But Alex told U.S. copyright law has some specific exceptions that might allow me to publish my book. There are exceptions for what is called fair use.

KAPLAN: It arises when copying is essentially acknowledged or found. But then copying is excused because the law considers it to be a fair use.

GOLDSTEIN: Alex told us, Romer, if your case ended up in court, a judge would look at four factors to decide whether you qualified for fair use.

ROMER: The first factor we talked about with Alex is something called the amount and substantiality of what is taken from the original work. I showed him a mock-up of a cover for my book, and he said immediately I was already in trouble.

GOLDSTEIN: Yeah, he pointed out that your cover looked almost identical to the other cover and all the things in the room - the cow and the moon and whatever. They all looked the same. And especially worrying to him was your main character, the bunny.

KAPLAN: Characters are entitled to copyright protection. In this case, the old lady who is actually a bunny wearing a blue robe with long ears, if you copy that character and put it in your book, you're still going to be running into copyright problems.

ROMER: So what if it's an old lady who's a bunny with long ears who's wearing a red robe?

KAPLAN: I think you're still going to have some problems.

ROMER: Add a belt.

KAPLAN: A little bit better, but what you're really going to need to do is change the way the bunny looks.

ROMER: Straw hat.

KAPLAN: Not quite.

ROMER: Like the Groucho Marx glasses with, like, the nose and a moustache.

KAPLAN: At that point, with the hat and that disguise, you're probably covering up almost all of the previous bunny, so I think you're good. I don't know that anybody would recognize it at that point.

GOLDSTEIN: OK, problem solved. What's next?

KAPLAN: What's typically referred to as the second factor is the nature of the copyrighted work.

GOLDSTEIN: And, Romer, this one - it's not going to kill your case, but it's not good for you. A key question on this one is are we talking about fiction or nonfiction because you can't copyright facts. So if you'd just read a story in, say, The Wall Street Journal, and you were interested in the facts of the story, and you went off and wrote a work of fiction based on that, you'd be in good shape. But you didn't, right? You started with a work of fiction. That makes your case weaker.

ROMER: OK, so quick recap - on the first one we talked about, I'm in pretty good shape. I put a disguise on my bunny. The second one, a little more trouble.

GOLDSTEIN: OK, so you've got two more factors to get through, and both of those are really all about money.

ROMER: It used to be that if you were trying to make money off of something that you made artistically, that was a huge strike against you. If you want to give it away for free, that's fine, but if you try to sell it, you are dead in the water.

GOLDSTEIN: But Alex says that changed back in the '90s when there was this very important and really fun kind of interesting case.

KAPLAN: Campbell versus Acuff-Rose. And while those names may not be familiar to you, the case involved Roy Orbison's song "Pretty Woman" and a parody of that song by 2 Live Crew also called "Oh, Pretty Woman."

ROMER: Alex says this case is actually a big reason why my version of "Goodnight Moon" might have a shot.

So can we start just, like, can you introduce yourself? Who are you?

LUTHER CAMPBELL: Luther Campbell.

ROMER: And...

CAMPBELL: Hello, name is Luther Campbell, a.k.a. Uncle Luke, Luke Skywalker, Captain [expletive], Sir Luke. You know, that's about it.

ROMER: Luther Campbell, the front man from 2 Live Crew.

CAMPBELL: Now as far as 2 Live Crew, you know, we had a couple - a couple songs. "Me So Horny" - you know, I'm pretty sure a lot of people remember it. "We Want Some P" - I don't know if I can say the other word 'cause I know this is public radio (laughter).

GOLDSTEIN: And then there was "Pretty Woman."

CAMPBELL: When I changed the song up, where Orbison would say, oh, pretty woman, I would say, oh, hairy woman.

ROMER: So - wait - give me that verse. Give me that verse that you're talking about. How's it go?

CAMPBELL: You want me to sing on the radio - on NPR. Really?

GOLDSTEIN: I mean, the answer is yes. Yeah.


CAMPBELL: No, but basically, I mean, you got to play the song. Play the song for the people. Play the song.

GOLDSTEIN: No one's going to sue us if we play the song?

CAMPBELL: No, nobody's going to sue you. Play the song.


2 LIVE CREW: (Singing) Pretty woman walking down the street. Pretty woman - girl, girl, you look so sweet. Pretty woman...

ROMER: OK. Now, see if you can hear the resemblance between that and the original version.


ROY ORBISON: (Singing) Pretty woman walking down the street. Pretty woman...

GOLDSTEIN: I think I can hear it. I think I can hear the similarities.

ORBISON: (Singing) ...The kind I'd like to meet. Pretty woman. I don't believe you...

GOLDSTEIN: So, you know, not surprisingly, after you listen to that, Acuff-Rose Music, the record company that held the rights to the Roy Orbison version - they came after Luther Campbell.

CAMPBELL: Well, I was on a golf course, playing golf, and some guy came up - a process server - and served me with a lawsuit. And I was like, well, what the hell is this?

ROMER: Case goes to court. It bounces around a little bit, and ultimately, it ends up in the Supreme Court.

CAMPBELL: I'm going before the - you know, the justices in the highest court of the land - guys who are appointed only by presidents of the United States of America. I'm going up in there with Scalia. I've got to go see Scalia. And, you know, I go ahead. Like, I'm the only black guy in the audience, so they know it's me. It ain't like when one of ya'll guys where they don't know. Is that Luther? Or is that - no, they knew that was Luther.


WILLIAM REHNQUIST: We'll hear argument first this morning - number 92 - 1292 - Luther R. Campbell versus Acuff-Rose Music, Inc.

ROMER: That is Chief Justice William Rehnquist.

GOLDSTEIN: When the lawyer for the company that owns the rights to the original song gets up and makes his case, he says this song - Luther's Campbell song - this is not fair use.

UNIDENTIFIED MAN #1: They've exploited our work for a profit. They're free-riding on our music. And that...

ROMER: Exploited our work for a profit - so here he's referring to one of these two factors in fair use about money. In particular, one of them says - is the person who's doing this thing trying to make a profit from it?

GOLDSTEIN: And there's no question that 2 Live Crew was making the song for profit. They sold hundreds of thousands of copies of the album that had this song on it.

ROMER: And in fact, a lower court had already ruled that that alone was enough to disqualify 2 Live Crew from a fair use claim.

GOLDSTEIN: Luther Campbell's lawyer, though - he says none of the factors on their own are supposed to decide whether or not something is fair use.

UNIDENTIFIED MAN #2: The decisive fact is that the court below applied a presumption that if it's commercial, it cannot be a fair use. That simply is wrong.

ROMER: The justices finish asking all the questions. The oral arguments come to an end. Luther Campbell and his lawyer go home.

GOLDSTEIN: A few months later, Luther gets a call from his lawyer.

CAMPBELL: He said, hey, I've got some good news. And I said - what? And he said, basically, we won the Supreme Court case. And I was like - hallelujah - and I jumped up and down, and I screamed to the top of my lungs. It was like the monkey was actually off my back.

ROMER: So here is what the court decides. They say Luther Campbell's song is a parody, and parody is something we want to protect under fair use.

GOLDSTEIN: A maybe even more important thing they say is the lower court that found against Luther Campbell made a mistake because that court said, all we have to decide is is Luther Campbell - is 2 Live Crew - trying to make money off of this? The Supreme Court said even somebody's who's trying to make money off of something still may be entitled to protection under fair use. In other words, Romer, you with your "Goodnight Moon" project - you still have a shot.

ROMER: Maybe. There's one last factor we haven't talked about yet - factor number four. And it asks, basically, what will my new book do to the market for the original book? Like, will my book hurt the sales of "Goodnight Moon." Am I going to cost them money?

GOLDSTEIN: And, Romer, you tried to make your case on this one to your lawyer friend Alex.

ROMER: If I put this book out there, like, more people are going to buy "Goodnight Moon." They're going to read this amazing sequel written by Keith Romer, and they're going to be like, oh, yeah, I love "Goodnight Moon." And they're going to go back, and they're going to buy the original book. Like, my effect on the marketplace for them is positive. Like, how is that bad for them?

KAPLAN: Those arguments are often made by the defendants in these cases (laughter).

ROMER: Alex says that even if my book didn't hurt the original "Goodnight Moon" by being a substitute for it, it could still hurt the copyright holder.

KAPLAN: If you do have a successful sequel, they have now lost the rights, really, to license out the rights to create a sequel because it's been done.

ROMER: And in some cases those licensing rights can be worth a lot of money.

GOLDSTEIN: So - all right - we've gone through all of the things that a judge would weigh, Keith, if you put this book out and got sued. But it's not like there's some math equation in the law where the judge would just give you points for each factor and add it all up and be like, oh, you qualify for fair use, or you don't. A judge has to consider this in a really big picture way. They're supposed to read the original book. They're supposed to look at every word you've written, compare the two and decide - is this new thing you've written something the law allows? Is it fair use? And so, Romer, to give Alex all the evidence, you actually read him the story that you wrote.

ROMER: Let's imagine for the purposes that we've eluded to the illustrations, but not copied them in a way that satisfies your lawyerly mind.


ROMER: I present to you the quiet, old lady. In the great green room, there was a telephone and a red balloon and a quiet, old lady with a lot to say. I painted these pictures when I believed in art, when dreams of success filled my heart, when we were rich and could buy nice things - kittens and mittens and a little house. Before the curse of the little mouse, I was the cow jumping over the moon. I was the moon. Now I am nobody. I am mush.

Child, you are the stars. You are the air. You are the noises everywhere. Hush, hush, hush, hush, hush.

Can I make this book?

KAPLAN: Well done, Keith. I think you'd have a pretty good argument.

ROMER: But if we go into court, are we going to win?

KAPLAN: I always tell my clients I can't give them percentages. I don't give them percentages. I think we'd have a pretty good shot.

ROMER: Can you give me a percentage?


KAPLAN: I can't give you a percentage.

ROMER: Like, higher than 70?

KAPLAN: No, I wouldn't say so.

ROMER: Lower than 70?

KAPLAN: Probably a little bit.

ROMER: Alex give me one last piece of advice before he left. Probably the smartest thing to do, he said, was to reach out to the publisher of "Goodnight Moon" and come up with some sort of licensing deal for my story. I called Harper Collins. They said they've got some exciting new things coming out next year in the world of "Goodnight Moon," but they did not want to comment for this story.

Hush, hush, hush, hush, hush.


ROMER: We'd love to hear what you think of the show. You can send us an email - planetmoney@npr.org. You can also find us on Facebook and Twitter. We are @planetmoney. Our show today was produced by Sally Helm. Special thanks to Chrissy Lee, who did the art on that mockup cover that we showed to Alex.

GOLDSTEIN: If you're looking for something else listen to, check out Invisibilia. It's back for its second season. On the first episode of the second season, there is this amazing story about what happens when you try and get big, macho guys on offshore oil rigs to talk about their feelings. You can find it at npr.org/podcasts or on the NPR One app.

ROMER: I'm Keith Roemer.

GOLDSTEIN: And I'm Jacob Goldstein.

ROMER: Can you say bye-bye, America?

HOPE: Bye-bye, America.

ROMER: Thanks for listening.

HOPE: Thanks for listening.

ROMER: Say your thing, lawyer.

KAPLAN: Well, you, as NPR, would want to say that you are not giving legal advice and that nobody should take it that way.

ROMER: Well, I'm certainly not giving legal advice.

KAPLAN: Well, you would want to say that your program is not designed to give legal advice and that people should consult their own attorneys. I would want to say that the opinions that I've expressed here today are mine alone and not that of my firm or my clients.

GOLDSTEIN: If we stick this legal disclaimer at the very end of our show, is that OK? Can we just put it anywhere, as long as it's in there somewhere?

KAPLAN: It's got to be in there somewhere.

GOLDSTEIN: We'll put it at the very end.

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