Copyright and parody: touring the certainties of intellectual property and restitution (2000)

The essay that follows examines the boundary between two sets of rules. The first set arises under the law of Restitution, particularly the rule that volunteers ordinarily need not be rewarded. (Another way to state this same Restitution rule is to say that the retention of benefit voluntarily conferred is ordinarily not "unjust enrichment".) The second set of rules are those of Intellectual Property law, which creates property in a special kind of volunteer. My argument is simply that the law of Restitution leads almost directly to the law of Intellectual Property, though the two areas are premised on diametrically opposed baseline certainties. For simplicity's sake, the essay primarily uses one methodology - that of economics. Of course, American and Canadian law have many dimensions. Rules and practices are most stable when they are supported by the convergence of many policies, of which economics is merely one.16 Thus the essay does address some additional policies, such as autonomy and the principle of equal respect for persons, when they are particularly apt. Nevertheless, for ease of exposition, the economic analysis will dominate. Hopefully, it will demonstrate both why the boundaries between liberty and property are fuzzy, and the nature of some of the principles that help shift the boundaries in one direction or another. The essay then turns to examining the doctrine of property law that the intentional crossing of a property boundary is prima facie actionable. The essay uses three American doctrines from intellectual property, "fair use", "the idea/expression dichotomy", and "substantial similarity", to demonstrate that in appropriate circumstances, even this apparent certainty must give way. In its final stage, the essay turns from exposition to advocacy. I hope to persuade my Canadian readers to reconsider the certainty with which Canadian law now favors an established artist's interests over those of a parodist and her audience. Today Canada and the United States have adopted quite opposed approaches to parody. In the U.S., the "fair use", doctrine will often shelter a parody that embodies a substantial portion of the work that it ridicules. This was demonstrated vividly in the recent U.S. Supreme Court case considering whether a rap group, "Live Crew" could, without permission, lawfully record and commercially distribute a parody of the Ray Orbison hit, "Oh, Pretty Woman."17 The Court remanded the copyright owner's infringement case for further consideration, in an opinion that stressed the open-ended nature of the fair use doctrine.18 In Canada, by contrast, the doctrine of "fair dealing" does not provide much shelter for parodies,19 and this hostility is underlined by Canada's generous statutory treatment of what it calls the artist's "moral right of integrity". 20 Although the Supreme Court of Canada has not addressed any case of "parody", the Canadian fair dealing statute lays out a set of crystalline rules into which it would be difficult to squeeze most parody cases. The essay elucidates an economic logic that helps to explain the uncertain, open-ended, case-by-case treatment of the United States courts. In the process, it is hoped that at least some Canadians might be led to appreciate the merits of an approach which, under the "fair use doctrine", sometimes does allow parodies to distort copyrighted works. My argument is in part motivated by the value that transgressive and appropriative works bring to a culture.22 Nevertheless, as mentioned, in this piece I will largely confine my analytic tools to the economic. Intellectual property law is exciting because it is where we can see new rights being created as we watch. It reminds us that much of what concerns scholars comes to life daily in the hands of judges and legislators.