The Suit by Carol Burnett Against "The Family Guy": Why Burnett Should Withdraw the Suit

On March 15, Carol Burnett filed suit in California federal court against Twentieth Century Fox, based on part of an episode of Fox's animated show "The Family Guy." In her complaint, Burnett took issue with the show's invocation of the "Charwoman" character she had created - and of a recognizable variation of her distinctive musical theme. More specifically, Burnett claimed infringements of copyright and trademark and violation of her "right of publicity" - the right to control the use of her name and likeness.

"The Family Guy" responded as follows: "'Family Guy,' like the 'Carol Burnett Show,' is famous for its pop culture parodies and satirical jabs at celebrities. We are surprised that Ms. Burnett, who has made a career of spoofing others on television, would go so far as to sue 'Family Guy' for a simple bit of comedy."

In this column, I'll argue that "The Family Guy" is right to be surprised and disappointed at Burnett - for suits like this one have the potential to have a chilling effect on writers and performers, who may shy away from creating edgy comedy that lampoons celebrities if to do so risks costly litigation. Moreover, this suit may worsen the already-dangerous ambiguity as to the full scope of First Amendment rights for parody.

The Burnett Suit: Challenging a Broad Parody

It seems likely that Burnett would not have sued if "The Family Guy" had attempted a more traditional, narrower, element-by-element parody of Burnett's show - for instance, casting each of the "Family Guy" characters in the roles of one of the actors on Burnett's show.

This kind of classic parody would doubtless have been very familiar to Burnett, who is now in her 70's, and she probably would have seen the First Amendment interest in protecting it, even if it annoyed her. After all, Burnett herself spoofed many movies, television shows, and commercials on her show - with parodies such as "Went With the Wind," "From Here to Maternity," and "As the Stomach Turns" (a repeat segment sending up the soap opera "As the World Turns.")

But "The Family Guy"'s parody was different. According to Burnett's complaint, it was motivated by a wish for revenge on Burnett, who had denied the show the use of her personal theme song. (Allegedly, she did so not out of spite, but simply because she reserves the song for her personal appearances and the like).

Thus, the show opted to demean a character Burnett had created - putting her Charwoman in a porn store, next to a bin of blowup dolls. It also opted to demean Burnett's trademark "ear tug" - the way she said goodnight to her grandmother -- by having a character remark, "I wonder what she tugged to say goodnight to her dad."

Was this parody? I believe it was. It's important to remember that there was something ugly at the heart of Burnett's "Charwoman" character in the first place: A wealthy, famous comedian was using the persona of one of the poorest of the poor. Putting this working-class character in a porn shop takes her much lower, but it was Burnett who first chose, from a high position, to mimic someone in a low one.

What about the ear tug? Burnett's original was coy, playful, and twee, a repeated affectation that was supposed to be directed to her grandmother - to let her know that everything was all right -- but that the audience was soon "in on," just as Burnett knew they would be. Surely, it's a send-up of this affectation to counterpose it with something gross, vile, and extremely direct: the suggestion that Burnett would, instead, be referring to some kind of incestuous relationship with her father.

In sum, while this was a broad parody, it was a parody just the same -- for it was implicitly commenting on elements of the original. Rather than just ripping off the original, it was referring back to it. For that reason, it ought to be protected by the First Amendment, and by the "fair use" exception to copyright law.

Why Broad Parodies Are More Likely to Face Lawsuits

The kind of parody used in the "Family Guy" episode is common nowadays. In the Twenty-First Century, parody is typically broad, often pornographic, and sometimes scattershot. (Think "South Park," for example.) But it's still parody, for it takes aim at, and tries to deflate, someone else's creation. The key to drawing the "parody" line is the difference between mere theft of the original, and commentary upon it.

Today's style of parody has its virtues: Element-by-element parodies can begin to feel rote and tiresome, as the parody grinds through all the points it must touch upon to fully map itself onto the original.

But today's favored kind of parody also has its vices: Too often, the parodist goes for the easiest, grossest, simplest shot that can be. (Sometimes, however, the very ease of the humor makes it more hilarious for some: There is a pleasure in the very cheapness of the "cheap shot.")

The important point is that to truly honor the First Amendment, the definition of parody has to be quite broad: It has to encompass the parodies fourteen-year-olds recognize and enjoy, just as surely as it encompasses the parodies seventy-four-year-olds recognize and enjoy.

Why Courts May Be Loath to Grant Protection to Broad Parodies

Unfortunately, however, judges are likely to be much closer to Burnett's age than the age of the average "Family Guy" viewer. Thus, they may tend to view broader parodies as not even counting as parodies at all.

Consider the case of Campbell v. Acuff-Rose Music, Inc.- a suit claiming copyright infringement by a song by "2 Live Crew." The song sent up Roy Orbison's "Oh, Pretty Woman" by using lyrics such as "Big hairy woman you need to shave that stuff/Big hairy woman you know I bet it's tough/Big hairy woman all that hair it ain't legit/Cause you look like 'Cousin It.'" Certainly, it was far from subtle.

Yet ultimately, the Supreme Court held unanimously that the song was a parody, and therefore protected by the "fair use" exception to copyright law. Before the Supreme Court ruled, however, a great deal of costly litigation had taken place. The U.S. Court of Appeals for the Sixth Circuit had refused to deem the song "fair use." And even at the Supreme Court level, Justice Kennedy wrote separately to note "I am not so assured [as the Court is] that 2 Live Crew's song is a legitimate parody." He also emphasized that, "[a]s future courts apply our fair use analysis, they must take care to ensure that not just any commercial take-off is rationalized post hoc as a parody."

Kennedy's comments may only breed further litigation -- for the line between a "take-off" designed to make money from exploitation of the original, and a "parody" that happens to make money by commentary on the original, is an exceedingly fine one. Given that copyright law itself postulates that money is an incentive for creativity, it seems wrong to penalize creators if money was, indeed, a factor in their minds all along. After all, the authenticity of Mad magazine's famous parodies, for instance, hasn't been negated by the price on its cover.

Writers Shouldn't Sue Other Writers, Except in the Clearest of Cases

Unfortunately, muddiness in this area of law may mean that lawsuits challenging bona fide parodies are settled for significant sums of money - money that should never have been owed. If so, the result will be, as noted above, that writers are deterred from writing freely.

Unless the protection for parody is crystal clear, there will always be some loophole on which to predicate a claim. Consider the Burnett case, for example. Fox's Achilles' heel, there, may be its use of a recognizable variant of Burnett's theme music.

In Campbell, the Court made clear that parody, by its nature, involves quite a bit of copying of the original. After all, if a parody doesn't at least evoke the original, it has failed entirely. But in the Burnett case, did "Family Guy" do more than was necessary to evoke Burnett? After all, it used her name in dialogue, employed her character's "trademark blue bonnet," as she notes in her complaint, and also used a variant on her music.

Was this overkill? Despite the fact that the Charwoman character appeared in the episode for no more than a moment, Burnett may be able to persuade a judge that "The Family Guy" borrowed more than it had to, when it borrowed much of the very song for which she says she had denied the rights - stealing what she refused to sell. A judge may feel Burnett's name alone was more than sufficient to identify her for the parody's purposes. Unfortunately for Fox, the facts alleged, if true, are highly unattractive; they make the creators of "Family Guy" look petulant, childish, and petty. If these facts are proven, a judge may have little sympathy for the defendants - despite their very strong First Amendment defense.

Moreover, even if the district court judge is sympathetic to Fox's First Amendment arguments, there's always the chance the U.S. Court of Appeals for the Ninth Circuit will not be. (Fortunately, judges like Alex Kozinski can be counted upon to make the argument eloquently, but it still may not persuade.) Meanwhile, the attentions of creative people on both sides may be distracted by the requirements of document discovery and depositions - which is a shame.

To avoid situations like this, the best position for writers and performers to take is to eschew suing other writers and performers, except in the very most clear-cut of cases. This certainly isn't one of them - and so the most honorable course of action for Burnett would be to withdraw her suit.