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Were The Bert/bin Laden Posters Protected Parody, Or Copyright Infringement?


Wednesday, Oct. 17, 2001

By now, you have probably heard about or seen images of posters from last week's violent anti-American, pro-bin Laden rallies in Bangladesh, in which Bert, the Muppet from Sesame Street, can be seen perched behind bin Laden's right shoulder. The posters feature a collage of images of bin Laden, downloaded from the Internet by a Bangladeshi. To the right of the largest image of bin Laden is an angry Bert.

Photojournalists who were at the rallies circulated the image worldwide. As Reuters attests, the photos were not doctored; rather, anti-American protesters organized by a radical Islamic organization were actually holding these posters. Of course, the original image that was downloaded from the Internet by a Bangladesh man was a doctored one; the official, Sesame Street-authorized Bert is not a companion of bin Laden.

Putting politics aside for a moment, one might wonder about the legality of the duplication of a copyrighted character in these political posters. Where should the line be drawn between parody and political or religious statement? When is the use of a legally copyrighted work parody, and therefore protected under the "fair use" exception to the copyright laws? Do these images count as parody?

The Site Containing the Original "Bert" Image

The original doctored image was from a "Bert is Evil" site. There, the site's San Francisco creator associated Bert with several evil causes, posing Bert next to several infamous people from Hitler to the KKK to the assassination of JFK. The site seems to have clearly been intended to parody Bert's image as an angry muppet.

In a statement released this week, Sesame Workshop commented, "Sesame Street has always stood for mutual respect and understanding. We're outraged that our characters would be used in this unfortunate and distasteful manner. ... We are exploring all legal options to stop this abuse and any similar abuses in the future."

The creator of the original parody site shut the site down this week.

These facts lead us to two separate questions: Did the "Bert Is Evil" site violate the copyright laws? And, did the Bangladeshi who downloaded Bert's image with bin Laden violate the copyright laws (assuming they could be applied to him, a doubtful assumption)? These questions require us to look to the law of "fair use."

The Law of Fair Use

"Fair use" is an exception to a strict application of the copyright law. It permits some use of another's work for purposes such as criticism, comment, news reporting, or education. Parody is one kind of fair use.

Copyright law allows parodies of copyrighted works because it recognizes that they are a valuable form of social commentary. Thus, if fair use status is not granted, society will lose out. Since copyright owners are unlikely to voluntarily license their work to others to make parody, the law allows the creators of parody to act without first procuring a license to use the image, and then rely on the fair use defense.

There are four factors courts typically consider in determining whether a defendant's use of a copyrighted work constitutes fair use. None of these factors is exclusively important; all should be considered. The way these factors apply in a parody case is somewhat unusual — and has been made clear by the Supreme Court in its 1994 decision in Campbell v. Acuff-Rose Music, Inc.

The Four "Fair Use" Factors, As Applied to Parody

The first factor is the purpose and character of the use. According to the Court, this factor aims to determine whether the new work merely supersedes the objects of the original creation, or instead adds something new, with a further purpose or different character. It asks, in other words, whether and to what extent the new work is "transformative."

The second factor is the nature of the copyrighted work. (This factor is not that important where parody is concerned, since parody, by its nature, will always appropriate a well-known work).

The third factor is the amount and substantiality of the portion used in relation to the copyrighted work as a whole. Courts have held that a parody is fair use if it takes no more from the copyrighted work than is necessary to "conjure up" the original.

As the Supreme Court held in Campbell, if the parodist has merely copied some "distinctive or memorable features" in order to "conjure up" the original, and has "thereafter departed markedly from the [original] for its own ends," then the copying cannot be said to be "excessive in relation to its parodic purpose." Excessive copying, however, can tend to rob a parody of "fair use" protection.

One example of excessive copying can be found in a 1978 lower court case, Walt Disney Productions v. Air Pirates. The defendants published a cartoon magazine that depicted Mickey Mouse and Donald Duck in sexual situations and using drugs. The court held that the defendants took more than was necessary to recall the Disney characters to the reader. Recognizing that the defendants were "parodying life and society in addition to parodying the Disney characters," the court nevertheless stated that "to the extent that the Disney characters are not also an object of the parody. . .the need to conjure them up would be reduced if not eliminated."

Fourth, and finally, there is the effect of the use upon the potential market for, or value of, the copyrighted work. The proper inquiry when a parody is at issue is whether the parody competes in the market for non-parody derivatives of the original (such as sequels). Generally, a parody serves a different purpose than the serious work it parodies, and so will not serve as a market substitute for it.

Original Bert Bin Laden Site is Parody

The original "Bert Is Evil" site is parody, and the use of the puppet on the site would be deemed fair use — as examination of the four factors shows

Looking to the first factor, the use of Bert is "transformative," creating something new. The site provides a commentary on the evil of the men or causes next to which Bert is posed, as well as a commentary on Bert's own character.

Bert on Sesame Street is the grumpy foil to Ernie. He exudes a manageable human grumpiness — grumpiness as a foible. He is never violent. On the "Bert is Evil" site, Bert's innocence is parodied as it is juxtaposed with the evil of real life villains to point out the ridiculousness, the manmade quality, the manufacturedness, and the falsity of their evil. Their evil is as false as the angry pose Bert affects.

The second factor, as I noted above, is not important where parody is at issue. And as for the "conjuring up" standard used in the third factor, it is satisfied. To parody Bert through an image it is necessary to picture the entire puppet — so while the site takes the whole image, it still does not take more than necessary.

Finally, with respect to the fourth factor, the effect on Sesame Street's market should be little to none. After all, the website would not serve as a market substitute for Sesame Street. It would be an unusual child, indeed, who would happen upon the site, see images of Bert with evildoers, decide to become a fan of the site, and give up watching the TV show.

In sum, the combination of all these factors indicates that the "Bert Is Evil" website, before its creator took it down, was on safe legal ground. It displayed parodies that fell well within the "fair use" exception to the copyright law. But that leads to our second question: What about the posters on which the images were used? Are they also protected?

The Bangladesh Posters: An Unintended Parody

Of course, Sesame Street is unlikely to sue the Bangladeshi who created the posters with an angry Bert besides Osama's shoulder. Sesame Street likely does not want to wend its way through Bangladesh's judicial system, and the Bangladeshi likely has no United States contacts to allow jurisdiction here. Moreover, the Bangladeshi did not even intend to parody Bert. Indeed, he seems not to have even noticed Bert was in the image he downloaded from the Internet.

In the unlikely event he was sued, however, the Bangladeshi might have a strong defense. Without intending to, he used Bert to create a parody — one that should be as solidly protected by the "fair use" exception to the copyright laws as the initial use of Bert's image on the "Bert Is Evil" site.

The menacing Bert peering besides bin Laden's face became a parody of the anti-American hatred on the faces of the ralliers in Bangladesh. It also acted as a parody of the evil bin Laden himself — just as the original creator of the doctored image intended.

Parody and Subversion

Margaret Rose wrote in her classic book Parody that "in using the work of another as a word-mask for its own message, parody has been a particularly subversive form of criticism." This is nowhere more true than on the Bangladesh rally posters.

This incongruity of innocent Bert and evil bin Laden, the pure irony of this juxtaposition, makes you laugh out loud as soon as you see the poster — and humor is a sure sign of parody. At the same time, the appearance of the Muppet in these pro-bin laden posters reassuringly underscores the resilience of American culture.

The protesters hate America, hate American culture and technology. Yet ironically it is the Internet, largely a technology developed by America, that made it possible for this parody to cross the oceans to this rally in Bangladesh, and an American tradition of political satire that marks it as a parody in the first place. It is almost as if our culture — like Bert himself — is acting by itself, an imp without a human author.

In these unsettling times, when so much is unknown and we cannot understand the hatred on these faces so far away from us, the appearance of Bert on these posters is somehow comforting, and in a small way tempers our fear. Seeing Bert, it's as if a symbol of American childhood, of innocence, and at the same time, of the power of our technology, has infiltrated these posters, and in a time of loss of innocence and fear, that is no small comfort.

Laura Hodes, a 2000 graduate of the University of Chicago Law School, is an attorney and writer living in Chicago.

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