The line between a fair use of copyrighted works and an infringement is blurry, and sometimes it takes a judge to decide where a particular use falls. The dispute between Universal Music Publishing and Lauren LoPrete shows how copyright owners can use that lack of clarity to stifle creativity and defeat the purpose of copyright protection.
LoPrete started a Tumblr page called This Charming Charlie in early August, posting cleverly altered panels from old Peanuts comic strips. Instead of author Charles Schulz's words, the dialogue bubbles contained snippets from songs by the English pop band The Smiths.
It was an inspired pairing. The Smiths' melodramatic lyrics (sample: "Now I know how Joan of Arc felt") become even more hyperbolic and funny when delivered by Charlie Brown as he sits up in bed at night, or by Snoopy sitting on his doghouse. LoPrete's Tumblr feed has essentially one joke, but for fans of The Smiths (myself included), it's a good one.
But the music publishing arm of Universal Music Group, one of the three major record companies, apparently doesn't find that joke funny anymore. Or at least its lawyers don't. Last week, LoPrete posted a note on her page saying that she was going to have to stop the simulated music in the face of a growing number of requests from Universal Music Group to remove the material from Tumblr. She'd received a total of six takedown notices for three separate posts, and said more were coming in every hour.
She's received an outpouring of support online, though, and is pushing back. On Monday, her lawyer filed a counter-notice with Tumblr asking that the three posts be restored. "These brief excerpts [from The Smiths' lyrics] are used to transformative effect," wrote attorney Dan Booth. "They also have no commercial purpose, and cannot have any negative effect on the market for the original works. As a result, the takedown notices are erroneous."
Booth's note touches on all four of the criteria in federal copyright law for judging whether a use is fair or infringing. This Charming Charlie doesn't copy entire songs, it puts the lyrics in a wholly new context (arguably as a parody of The Smiths, which provides yet more legal protection), it doesn't sell its content, and if anything, the page stokes demand for The Smiths' music. The band broke up more than 25 years ago, so Universal should actually be thanking LoPrete for drawing a new generation's attention to its work. That's what makes this case seem like it's not a close call.
Nevertheless, Booth said, an attorney for Universal Music Publishing told him that the company was still considering whether to sue LoPrete for copyright infringement.
Meanwhile, under the 1998 Digital Millennium Copyright Act, Tumblr must restore LoPrete's posts if Universal doesn't file suit within two weeks. Booth said Tumblr informed him that it intends to put the disputed posts back up again in 10 days.
All artists draw inspiration from other artists, some more literally than others. Just take The Smiths. One of the posts that Universal demanded be removed involved a lyric from "This Charming Man." That song includes a couplet that lyricist Morrissey, ahem, borrowed from the 1972 Michael Caine film "Sleuth." But like LoPrete, he quoted only one line.
[Updated 2:33 p.m. Sept. 25: A Universal Music spokesman said that the company is dropping its pursuit of This Charming Charlie. Evidently, someone at the company finally took the long view, not the lawyerly view.]
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