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Shameful Moments In American History's Copyright Censorship

For those who think that the "parody" defense has always provided a clear and fair outlet of escape from copyright's harsh restrictions, you might want to read up on the time in the 1950's when Jack Benny was banned from airing a parody of the 1942 film (and 1939 play) "Gaslight" for a television show he was doing.

Original news coverage after the 1958 Supreme Court decision can be found here:

http://news.google.com/newspapers?id=tX8PAAAAIBAJ&sjid=-YcDAAAAIBAJ&dq=jack%20benny%20supreme%20court&pg=5150%2C2765550 [The Victoria Advocate]

and here:

http://www.time.com/time/magazine/article/0,9171,937550,00.html [Time Magazine]

Classic lines from Time's coverage:

From now on, Benny intends to get permission of anybody he parodies. Gloomed he: "I suppose now they won't even let me do Birth of a Nation. They're afraid we'd hurt the picture."

While I regretfully cannot find an on-line link to a copy of the article, AP television writer Charles Mercer wrote in his syndicated column that week (March 22, 1958):

"Actually, television felt the effects of the suit long before the Supreme Court ruling. If memory serves, we have not seen an all-out parody of any copyrighted work on television since the suit was filed. Television, as everyone knows, is a mighty cautious industry.

Issuing a personal opinion on the ruling, I'm sorry as a television viewer that Benny has lost the case. It's one more nail in the coffin that fate prepares for TV comedians. It further limits the area in which they are permitted to try to make us laugh.

Parody is one of the most ancient and honorable forms of public entertainment. Suddenly to find it illegal is astonishing - and a little frightening in the area of freedom of expression."

Well said. Here is one of the nation's most prominent television critics at the time effectively admitting that a single copyright suit prevented countless of creative comedic works from being produced at the time - a shameful fact that is surely ignored in most law school and history classes today.

The 9th Circuit decision dealing with the jack Benny case can be read here:

http://openjurist.org/239/f2d/532/benny-v-loews-incorporated-columbia-broadcasting-system

The subsequent and brief (4-4) Supreme Court decision simply read without explanation:

PER CURIAM.

The judgment is affirmed by an equally divided Court.

MR. JUSTICE DOUGLAS took no part in the consideration or decision of this case.

You can find a copy of it here: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=356&invol=43

A subsequent parody case which cast criticism on the decision makes for interesting reading here: http://cip.law.ucla.edu/cases/case_berlin_ec.html

The bottom line is that the so-called "parody" protection from copyright has always been an opaque crock. It is no clearer now than it has been in the past, but creative works are still being stifled from fear of treading on copyright's parameters:

http://scholar.google.com/scholar_case?case=15758460119711775481&hl=en&as_sdt=2&as_vis=1&oi=scholarr

http://blogs.law.harvard.edu/yuminemma/files/2009/12/cat-not-in-hat1.jpg

http://grove.ufl.edu/~techlaw/vol9/issue1/collado.html

ADDENDUM: I recently came across yet another Jack Benny-related copyright outrage here:

http://boingboing.net/2010/01/18/cbs-uncovers-rare-ja.html

Oh, the irony. Even in death, the copyright regime still torments him.


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