"The Family Guy" Once Again Tests Parody's Limits: The Copyright Suit Challenging the Show's Use of "When You Wish Upon a Star"

By JULIE HILDEN
Wednesday, Oct. 31, 2007

Fox's animated show "The Family Guy" is being sued for copyright violation - for the second time this year.

The plaintiff in the suit is the company that owns the rights to the song "When You Wish Upon a Star." The suit, filed October 3, alleges that the song was combined with what some have suggested were anti-Semitic lyrics. (The full lyrics can be found on page 9 of the complaint, and they refer to Jews as having "killed my Lord.")

The song, entitled "I Need a Jew" was featured in an episode called "When You Wish Upon a Weinstein." (The "Weinstein" involved is a non-famous person named "Max," though the selection of last name may well have intentionally evoked brothers Bob and Harvey, founders of Miramax, whose father was also named Max.) In the episode, the reason the singer says he "needs a Jew" is to handle his money after a financial reversal - providing some basis for claims of anti-Semitic stereotyping, at least on the character's part.

Yet an anti-Semitic character does not necessarily make for an anti-Semitic show, any more than one sexist character makes for a sexist show. (Indeed, it might be hard to have a strongly feminist show without ever introducing a sexist character.) Were the writers of "The Family Guy" truly saying something about Jews with this episode, or were they saying something about an idiotic animated character's idiotic stereotype of Jews? The latter seems much, much more likely.

As I've argued in earlier columns -- such as this one on so-called "torture porn," and this one on a Danish newspaper's controversial Muhammad cartoons, depicting the Islamic prophet -- it is important, when privately evaluating a work to consider if one personally finds it offensive, to focus not just on work's content, but also on its perspective and viewpoint. For instance, if a work is satirical or meant to provoke, that may well be relevant. Otherwise, we fall into the position of simply saying that the depiction of certain things, or the mere pronunciation of certain words, regardless of the context, is inherently offensive.

Still, whether or not it should be deemed anti-Semitic and thus boycotted by private individuals, the "Family Guy" episode may have landed Fox in serious trouble in court, as I will explain.

"The Family Guy" Is A Repeat Offender When It Comes to Broad Parodies

Earlier this year, I wrote a column regarding a suit filed on March 15 by comedian Carol Burnett against "The Family Guy." "The Family Guy" used Burnett's "Charwoman" character in a way that Burnett found demeaning. Burnett argued that the show therefore violated her trademark and copyright, as well as her "right of publicity" - the right to control commercial uses of her image.

"The Family Guy" defended by invoking its right to parody. There, it was on relatively solid ground: In order to parody the "Charwoman," "Family Guy" had to invoke the character, thus invoking Burnett herself, and triggering her right to publicity. Arguably, using a variation on Burnett's theme music and thus violating the theme's copyright was also necessary (though perhaps much less so, in light of all the other features appropriated to make the reference very clear).

The rights-violations in that instance were arguably necessary to the parody - which suggested they were "fair use," and that Family Guy was not liable for infringement.

A similar dynamic was at work in the Supreme Court's decision in Campbell v. Acuff-Rose Music Inc. When 2 Live Crew parodied Roy Orbison's song "Oh Pretty Woman," his record company sued. But 2 Live Crew won, because the Court recognized that the song was a commentary on the original, not just an appropriation of it.

Moreover, the Court noted, it was necessary to invoke the original to parody it. The opinion, penned by Justice Souter, deemed the lower court to have been "insufficiently appreciative of parody's need for the recognizable sight or sound." If one cannot figure out a parody's object, after all, it is hardly a parody at all. The right to parody is the right to invoke the original.

(Burnett's claim was also weak because the "right to publicity" is restricted to commercial uses - such as the use of a teen's photo, without her authorization, in a derogatory Verizon Mobile ad, about which FindLaw columnist Anita Ramasastry recently wrote. No "right to publicity" claim is made in the "When You Wish Upon a Weinstein" suit against "The Family Guy.")

On May 26 of this year, a U.S. District Judge dismissed Burnett's suit on First Amendment grounds.

Why The "I Need A Jew" Parody Is On Relatively Weak Ground

In the more recent "Family Guy" suit, one might argue that the use of "When You Wish Upon a Star" was parody, and thus covered by the fair use exception. However, the situation here is very different from the situation in Campbell, the Supreme Court's parody precedent; the situation involving Carol Burnett's "Charwoman"; and even the situation involving Burnett's musical theme. Accordingly, the case for "fair use" protection on a parody theory in this "Family Guy" case is somewhat weak.

If the use of "When You Wish Upon a Star" was a commentary on the original, it was a commentary only in the very loosest possibly sense. Indeed, I believe most viewers would not deem the episode to have been "about" the song "When You Wish Upon a Star" in anything like the sense that a portion of the Carol Burnett/Charwoman episode was "about" Burnett and her character during the (admittedly very brief) time when that character was shown.

That's a problem for "The Family Guy," because a parody, to be a parody, has to have an object. Moreover, it has to have the right object: If the parody's object isn't the very material that is appropriated, then there is no need to use the "recognizable sight or sound" to evoke that material. Deciding to do a parody of one particular work doesn't give you an all-purpose "license to infringe" that you can use with respect to any work you want.

Consider, for instance, the analysis of the use of a song for parodic purposes in the Supreme Court's seminal opinion in Campbell. Borrowing from the lower court's dissent, the Supreme Court deemed 2 Live Crew's parody "clearly intended to ridicule the white-bread original," and pointed out that the parody "reminds us that sexual congress with nameless streetwalkers is not necessarily the stuff of romance, and is not necessarily without its consequences. The singers [in the parody] (there are several) have the same thing on their minds as did the lonely man with the nasal voice [in the original], but here there is no hint of wine and roses."

2 Live Crew's "Pretty Woman" thus provided commentary on the song. Similarly, the use of Carol Burnett's theme music in "The Family Guy" could have been construed -- in conjunction with the mockery of her trademark ear tug and trademark character -- to mock the whole package of traits and performances that make up Burnett's image, including the theme music.

In contrast, was "I Need a Jew" providing commentary on the song "When You Wish Upon a Star," or (expressly) on stereotypes of Jews and (implicitly) on the character singing it? It seems the latter is a much more accurate description. And that's a problem for "The Family Guy," for it seems that the only thing it might have been parodying was its own character. And if it wasn't parodying "When You Wish Upon a Star," it has little basis for a "fair use" claim with respect to the song.

On the other hand, though, like Orbison's original "Oh Pretty Woman," "When You Wish Upon a Star" is certainly a "white-bread original." Introduced in 1940 in the Disney movie, Pinocchio, and sung by Jiminy Cricket, it is syrupy sweet, and has become the corporate theme song for the Disney Company, with a place in Walt Disney Pictures' opening logo. (It is also now a Christmas song in Northern Europe.)

Still, perhaps the "white-bread original" principle can be taken too far. Can any modern rap or hip-hop song or snarky comedy do any kind of soulful or "urban" twist on such an original song and be seen as satirical? At some point, the evocation becomes gratuitous. Here, for instance, one can imagine dozens of songs that would also have evoked a whitebread, uptight, gratingly sweet sound, and therefore played essentially the same role of "When You Wish Upon a Star." And for some of these songs, one would think "The Family Guy" might have paid for a permitted use.

Granted, these other songs might not have lent themselves to the alliteration of "When You Wish Upon a Weinstein." However, there is no First Amendment or fair use right to alliteration; the Framers must have mistakenly left that one out.


Hilden, who graduated from Yale Law School in 1992, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. Hilden is also a novelist. In reviewing Hilden's novel, 3, Kirkus Reviews praised Hilden's "rather uncanny abilities," and Counterpunch called it "a must read.... a work of art." Hilden's website, www.juliehilden.com, includes free MP3 and text downloads of the novel's first chapter.