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Case No.

2010-CV-543210-AA
________________________________________________________________________
IN THE
UNITED STATES COURT OF APPEALS FOR
THE SEVENTH CIRCUIT
________________________________________________________________________
RUBY ENTERPRISES, INC.,
Plaintiff-Appellant
v.
JONATHAN MCINTOSH,
Defendant-Appellee
________________________________________________________________________
On Appeal from the United States District Court
For the Northern District of Illinois
________________________________________________________________________
BRIEF OF APPELLEE
________________________________________________________________________
March 5, 2010
Exam # 6903
Attorney for Appellee

TABLE OF CONTENTS
page
TABLE OF CONTENTS.....................................................................................................I
TABLE OF CASES, STATUTES, AND OTHER AUTHORITIES.................................III
STATEMENT OF THE CASE............................................................................................2
STATEMENT OF FACTS..................................................................................................3
SUMMARY OF THE ARGUMENT ................................................................................5
ARGUMENT.......................................................................................................................7
I. THE EDUCATOINAL NON-PROFIT AND TRANSFORMATIONAL
PURPROSE, INSIGNIFICANT PORTION COPIED, AND LACK OF
RELEVANT MARKET HARM ESTABLISHES THAT MCINTOSHS
WORK IS PROTECTED BY THE FAIR USE DOCTRINE. .........................7
A. Standard Of Review. ............................................................................8
B. The district court found that the purpose and character of the work
weighed in favor of fair use because McIntosh received no direct
revenue from the video and commented on the up-to-date role model
of Buffy through spicing specific scenes from the Buffy series and the
movie Twilight, substantially changing the nature of the copyrighted
work. 8
1. McIntoshs remix constituted a parody because the remix
heavily commented on the strength, dominance, and contrast
between the lead female characters of the Buffy series and the
Twilight movies. .......................................................................9
2. McIntosh had a purely non-profit educational purpose in
creating the remix because he did not sell the video, displayed
the video for free on his ad-less website, and created the video
purely to comment on Buffy, Twilight, and societys gender
roles..........................................................................................11
3. McIntosh created a substantially different, transformative work
because his purpose was starkly different then Rubys in
creating the work, added music and scenes from different
sources than Buffy, and the overall video conveyed a multitude
of additional meanings.............................................................13

C.The district court found that the nature of Rubys work creative and
protected by copyright laws.................................................................15
D.McIntosh demonstrated that he only used the necessary amount of
Rubys work to create a successful parody because he copied specific
scenes that were essential to his commentary and merely used five
minutes out of 37 episodes of Buffy. ...................................................16
E.The district court properly found that the market damage was nothing
as applied to parody ...........................................................................18
1.

McIntoshs behavior did not harm the marketability for Buffy


because the marketability of the character was nonexistent at
the time he created the video. .................................................19

2.McIntosh did not create a video that could become a substitute


for viewing the Buffy series because the video had very
different market functions than the original and was only six
minutes long giving the viewers only a taste of the television
series. ......................................................................................19
3.McIntoshs work did not cause any cognizable harm to derivative
markets because his work was a parody, which has no
protectable derivative market. ................................................20
CONCLUSION..................................................................................................................22

ii

TABLE OF CASES, STATUTES, AND OTHER AUTHORITIES


page
Cases
American Geophysical Union v. Texaco Inc., 60 F.3d. 913 (2nd Cir. 1994)......................22
Baraban and Ihlenfeldt v. Time Warner inct 2000 U.S. Dist. Lexis 4447.............24, 25, 27
Davis v. Gap, 256 F.3d 152...............................................................................................21
Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257 (11th Cir. 2001)........12, 14, 15, 18
Storie v. Randys Auto Sales, LLC., 589 F.3d 873, 876 (7th Cir. 2009)...........................19
Blanch v. Koons, 467 F.3d 244 (2d Cir. 2006)..................................................................19
Chicago Bd. of Educ. v. Substance, Inc., 354 F.3d 624 (7th Cir. 2003)............................18
Video Pipeline, Inc. v. Buena Vista Home Entm't, Inc., 275 F. Supp. 2d 543 (D.N.J. 2003)
......................................................................................................................................24, 28
Dr. Seuss Enters., L.P. v. Penguin Books USA, Inc., 109 F.3d 1394 (9th Cir. 1997).......12
Rogers v. Koons, 960 F.2d 301 (2d Cir. N.Y. 1992).........................................................20
Sundeman v. The Seajay Society, Inc., 142 F.3d 194 (4th Cir. 1998).................................19
Fisher v. Dees, 794 F.2d 432, 438 (9th Cir. 1986)...............................................................9
Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2nd Cir. 2006).............20
Bourne Co. v. Twentieth Century Fox Film Corp., 602 F. Supp. 2d 499 (S.D.N.Y. 2009)
............................................................................................................................................19
Leibovitz v. Paramount Pictures Corp., 137 F.3d 109 (2d Cir.1998)................................22
Salinger v. Colting, 641 F. Supp. 2d 250 (S.D.N.Y. 2009).............................23, 24, 28, 30
Harper & Row, Publrs. v. Nation Enters., 471 U.S. 539 (U.S. 1985)...............................19
Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (U.S. 1994)........................................10
Parker v. Hahnemann Univ. Hosp., 234 F. Supp. 2d 478 (N.J. 2002).........................19, 20
Parris v. Miami Herald Publ'g Co., 216 F.3d 1298 (11th Cir. 2000)..................................10
Plant v. Morton, 212 F.3d 929 (6th Cir. 2000)...................................................................12
iii

Regulations
29 C.F.R. 825.214(a) (2002)...........................................................................................25
29 C.F.R. 825.216 (2002).....................................................................................7, 16, 18
29 C.F.R. 825.216(a) (2002)...............................................................................11, 13, 17
29 C.F.R. 825.216(a)(1) (2002)................................................................................11, 17
60 Fed. Reg. 2180, 2216 (Jan. 6, 1995).............................................................................17

Rules
Fed. R. Civ. P. 56(c)..........................................................................................2, 4, 5, 8, 22
Fed. R. Civ. P. 8(c)............................................................................................................21

Statutes
28 U.S.C. 1291 (2000)......................................................................................................2
28 U.S.C. 1331 (2000)......................................................................................................2
29 U.S.C. 2601 (2000)......................................................................................................2
29 U.S.C. 2601(a)(4) (2000)...........................................................................................15
29 U.S.C. 2601(b)(1)-(2) (2000)......................................................................................9

iv

29 U.S.C. 2614(a) (2000)..................................................................................................1


29 U.S.C. 2614(a)(1) (2000).......................................................................................4, 14
29 U.S.C. 2614(a)(1)(A)-(B) (2000)........................................................................12, 29
29 U.S.C. 2614(a)(3)(B) (2000).....................................................................7, 11, 12, 14
29 U.S.C. 2615(a)(1) (2000).......................................................................................1, 10
29 U.S.C. 2617(a)(1)(A)(iii) (2000)...............................................................................14
29 U.S.C. 2654 (2000)......................................................................................................9

Other Authorities
H.R. Rep. No. 103-3, pt. 1 (1993)................................................................................16, 18
S. Rep. No. 103-3 (1993).............................................................................9, 15, 16, 18, 20

STATEMENT OF SUBJECT MATTER AND APPELLATE JURISDICTION


This case asserts an action under the Family and Medical Leave Act, 29 U.S.C. 2601
(2000). The district court had jurisdiction over the federal claim asserted here pursuant to 28
U.S.C. 1331 (2000). (R. at 1.)
The Plaintiff sought reinstatement, compensatory and liquidated damages, and any other
relief that the court deemed just and proper. (R. at 3-4.) The Plaintiff appeals from an order
granting summary judgment for the Defendant pursuant to Fed. R. Civ. P. 56(c). The judgment
of the district court was entered on September 23, 2002. (R. at 77.)
The Plaintiff filed a timely Notice of Appeal on October 7, 2002. (R. at 78.) The Court
of Appeals for the Sixth Circuit has jurisdiction pursuant to 28 U.S.C. 1291 (2000).
STATEMENT OF ISSUES PRESENTED FOR REVIEW
I.

Does an employer have the final burden of proving interference under 2615(a)(1) with
reinstatement rights under 2614(a) of the Family and Medical Leave Act where the
statute is silent on the issue, the Department of Labors regulation placing the burden on
the employer is a permissible construction of the statute, legislative history and public
policy concerns clearly indicate that the employer has the burden of proof, and the
defendant pleaded the issue as an affirmative defense in its answer?

II.

Could a reasonable juror conclude that the defendant employer fired Julia Hoffman solely
because she took FLMA leave, where Hoffman was an outstanding news anchor and
there is abundant evidence showing that the decision to terminate her was made after she
took leave and precisely because of it, indicating that the trial court erred in granting
summary judgment in the face of a genuine issue of material fact?

STATEMENT OF THE CASE


This case involves the wrongful termination of an outstanding employee while she was
on protected medical leave to recover from a serious health condition. (R. at 3.) PlaintiffAppellant Julia Hoffman (Hoffman) was terminated from her position as news anchor by
Defendant-Appellee Empire Communications, Inc. (Empire) solely because she had taken
leave, in violation of the FMLA. (R. at 3.)
Hoffman brought suit against Empire in the District Court of the Western District of
Michigan for violation of her right, pursuant to 29 U.S.C. 2614(a)(1) (2000), to be reinstated to
her former, or equivalent, position at the end of her medical leave. (R. at 3-4.) The district court
mistakenly concluded that there was not sufficient evidence of a genuine issue of material fact
and granted the Defendants Motion for Summary Judgment according to Fed. R. Civ. P. 56(c).
(R. at 76-77.) However, the court incorrectly placed on Hoffman the burden of proof on the
issue of whether Hoffman would have been terminated regardless of her taking leave. (R. at 74.)
This was based on a complete failure to recognize the ambiguity in the FMLA statutory scheme
and to conduct a Chevron analysis of the Department of Labor (DOL) regulation issued
pursuant to the FMLA. (R. at 10.)
Hoffman now appeals the inappropriate grant of summary judgment. (R. at 78.) In its
discussion of the burden of proof, the lower court acknowledged that ambiguity in the FMLA
statutory scheme mandates a Chevron analysis.

(R. at 75.)

Furthermore, the judge was

compelled to state that had the burden of proof been on the Defendant, the court would not have
granted summary judgment. (R. at 76.) With these considerations, Hoffman appeals to this
court to reverse the ruling that the burden of proof is on the employer, and to reverse summary
judgment and remand this case to a jury to decide whether Empire terminated her solely because
she took protected FMLA leave.
2

STATEMENT OF FACTS
Plaintiff Julia Hoffman has appealed the judgment of the district court granting summary
judgment under Fed. R. Civ. P. 56(c) for the Defendant Empire. (R. at 78.) Hoffman asks that
both issues, burden of proof and summary judgment, be reversed.
Julia Hoffman was an extremely successful news anchor and a loyal employee of Empire
for seventeen years. (R. at 11, 14.) She began as a field reporter for Empires station, was
promoted to on-camera anchor of the 12:00 noon newscast, and was again promoted, to anchor
of the 6:00 pm newscast. (R. at 11-14.) Hoffman and her co-anchor Randall Pompadour were
the stations highest rated newscast team, and they continually received recognition for their
Friday night From My Perspective segment. (R. at 42-43, 55.)
In fact, the station and its viewers couldnt have been happier with Hoffmans
performance as a news anchor. (R. at 31.) Hoffman performed as an outstanding anchor, but
unfortunately, she became the subject of a classic joke around the station, which occurred on
October 17, 2001. (R. at 42-43.) After that isolated incident where Hoffman was drunk during a
newscast, Hoffman was told that she would be immediately dismissed if she ever appeared
intoxicated on the air again. (R. at 43, 32.) However, Hoffman never did, a fact which was
clearly recognized by both the President and CEO of Empire, Sanderson, and the Producer of the
6:00 p.m. newscast, Jankowski. (R. at 21.) When asked if Hoffman had any other episodes of
on-air intoxication, Sanderson emphatically answered, Absolutely not. But off the air . . ., and
Jankowski stated, No, not that I know of. (R. 32, 44.)
Hoffman performed as a complete professional on air without even a small mistake from
October 17 on, according to Pompadour. (R. at 56.) On Monday, January 22, 2001, Hoffman
requested and was granted six weeks of medical leave under FMLA for alcoholism. (R. at 62.)
The previous weekend, Hoffman drank too much at a Charity Ball; this was reported in a
3

newspaper article on Sunday, January 21, and on a Channel 5 broadcast on Wednesday, January
24. (R. at 16.) At the time of taking leave, Sanderson and Jankowski were aware of the Charity
Ball, yet they did not suggest to Hoffman that she would be terminated. (R. at 22.) Sanderson
commented, Honestly, we felt sympathy for her . . . I just dont know. (R. at 36.) Hoffman
therefore had peace of mind concerning the leave, confident that she would be reinstated upon
her return.
However, after Hoffman had been on protected FMLA leave for one month, she was
wrongfully terminated by the defendant from her 6:00 p.m. anchor position precisely because she
had taken leave. (R. at 15.) Sanderson admitted that he had made her a star, and that Hoffman
had repaid him by abandon[ing] the station and her viewers for a leave. (R. at 32-33.)
Furthermore, he commented that, Julias absence was hard on everyone and we just had to
move on for the sake of the station. (R. at 34.)
Focus groups held by Empire to gage viewer preferences had been moved up one month,
in order to find a permanent replacement for Hoffman while she was on protected leave. (R. at
45-46.) Sanderson admitted that had Hoffman not taken leave, he would not have called for the
focus groups early or have needed to find a replacement anchor. (R. at 36.) The result of the
focus groups was Hoffmans termination. To the question of whether the result of the focus
group was a decision to terminate Hoffman, Jankowski answered technically lay her off, but
yes. (R. at 46.)
As a result of her wrongful termination, on August 17, 2001, Julia Hoffman filed suit for
interference with her right under the FMLA to be reinstated at the conclusion of her FMLA
leave. (R. at 3.)

SUMMARY OF THE ARGUMENT


The Family and Medical Leave Act grants workers the right to 12 weeks of unpaid leave
each year for serious medical conditions and other important needs. At the very heart of the Act
lies an employees right to be reinstated to the former, or equivalent, position at the conclusion of
protected leave. 29 U.S.C. 2614(a)(1) (2000).
In the case at hand, Julia Hoffman was denied her statutory right to reinstatement. She
was stripped of her right to take leave for a serious medical reason with the peace of mind that
she would be able to return to her job. After medical leave for alcoholism, her employer Empire
was required to reinstate her to the news anchor position, a job in which she had previously
excelled, but refused to do so.
An employer must not interfere with the statutory right to reinstatement. Therefore, the
employee simply has to show that her right was interfered with to succeed on this claim.
However, if the employer wants to assert the exception to reinstatement found in 29 U.S.C.
2614(a)(3)(B) (2000), that the employee would have been terminated regardless of taking leave,
this constitutes an affirmative defense upon which the employer then bears the burden of proof.
This proper interpretation of the FMLA is found in the DOL Regulation 29 C.F.R. 825.216
(2002), promulgated pursuant to the FMLA, which is entitled to deference. This interpretation is
also strongly supported by public policy and by the Defendant's Answer, which pleads this
argument as an affirmative defense.
The district court blatantly failed to account for the ambiguity in the FMLA scheme
regarding the burden of proof on whether an employee would have been terminated had she not
taken leave. Where the statute is ambiguous, the Supreme Court has mandated that a two-part
Chevron analysis must be conducted. The first question asks if the statute is silent or ambiguous
with respect to the specific issue. Here the language of the statute itself, the specific context in
5

which the language is used, and the broader context of the FMLA as a whole all reveal a wide
gap in the express language of the FMLA with regard to the burden of proof.
The second step of the Chevron analysis inquires whether the regulation is a permissible
construction of the statute, filling the gap in a reasonable way in light of Congress' intent. The
regulation at issue is obviously not arbitrary or capricious, as the Tenth Circuit has also found.
Furthermore, the regulation is consistent with Congress' goals of helping employees in difficult
situations and in particular ensuring that employees are reinstated to a genuinely equivalent
position after returning from qualified FMLA leave. Because the FMLA is silent on the burden
of proof for an employee who was terminated while on leave, the court must defer to the valid
DOL regulation which places the burden on the employer.
Although the burden of proof is properly on the Defendant, even assuming the burden
were on Hoffman, the District court's grant of summary judgment must be overruled. According
to Fed. R. Civ. P. 56(c), summary judgment is inappropriate where there remains a genuine issue
of material fact. Drawing all inferences from the underlying facts in Julia Hoffmans favor, it is
clear that she was terminated solely because she took protected FMLA leave. Hoffman was an
outstanding and loyal employee, who was never again drunk on-air after the one isolated
incident. While on FMLA leave, it was Hoffman's absence from the station that was hard on
Empire and the viewers. Consequently, Empire moved up the focus group to find a permanent
replacement for her. Abundant evidence exists that Hoffman was terminated simply because she
took leave, and therefore a reasonable jury clearly could find for Hoffman.
The district courts finding that the burden of proof was on the employee, and the grant of
summary judgment, must both be reversed.

ARGUMENT
I.

THE EDUCATOINAL NON-PROFIT AND TRANSFORMATIONAL PURPROSE,


INSIGNIFICANT PORTION COPIED, AND LACK OF RELEVANT MARKET
HARM ESTABLISHES THAT MCINTOSHS WORK IS PROTECTED BY THE FAIR
USE DOCTRINE.

According to Copyright Provision 17 U.S.C. 17 factors to be addressed are:


(1) the purpose and character of the use, including whether such use of a commercial nature or
is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount of substantiality of the portion used in relation to the copyrighted work as a
whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
However, it is very important to keep in mind that to avoid rigid application of the copyright
statute when, on occasion, it would stifle the very creativity which the law is designed to foster.
Stewart v. Abend, 495 U.S. 207, 236.
The Supreme Court instructs that only general guidance about the sorts of copying that
courts and Congress most commonly had found be fair ones. Nor may the four statutory factors
be treated in isolationAll are to be explored, and results weighed together, in light of the
purposes of copyright. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577-78 (1994).
To establish a prima facie case of copyright infringement a plaintiff must prove (1) the
infringer used the copyrighted work without permission and (2) the fair use doctrine does not
weight in favor of the copyright holder. Ruby has established that McIntosh created the remix
without permission. This appeal addresses the applicability of the defense of fair use.
Rubys appeal contests the district courts finding that (1) McIntoshs remix constituted a
parody that was transformative and purpose was educational, (2) the nature of the copyrighted
work was given little weight, (3) McIntosh did took an unreasonable amount of the plaintiffs
7

copyrighted work, and (4) McIntoshs work harmed the market for the copyrighted work and
derivatives.
A.

Standard Of Review.

An appellate court reviews a district courts grant of summary judgment de novo. Storie
v. Randys Auto Sales, LLC, 589 F.3d 873, 876 (7th Cir. Ind. 2009). Summary judgment is
proper when the pleadings, the discovery and disclosure materials on file, and any affidavits
show that there is no genuine issues as to any material fact and the movant is entitled to
judgment as a matter of law. Fed. R. Civ. R. 56(c); Storie at 876. The district court properly
granted McIntoshs motion for summary judgment because Ruby Enterprises failed to establish a
prima facie case that McIntoshs mix-up did not constitute Fair Use under Copyright 17 U.S.C.
107.
B.

The district court found that the purpose and character of the work weighed in
favor of fair use because McIntosh received no direct revenue from the video and
commented on the up-to-date role model of Buffy through spicing specific scenes
from the Buffy series and the movie Twilight, substantially changing the nature of
the copyrighted work.

On the first factor, McIntosh was showed sufficient evidence to prove that the purpose
and character of his work weighed heavily towards fair use. First, McIntoshs remix constituted a
parody because he was commenting on the Supergirl character of Buffy the Vampire Slayer; in
addition, to commenting on the Twilight character of Edward and gender roles in society.
Secondly, McIntosh sole purpose in creating the remix was inform society about Buffy,
Edward, and societys gender roles constituting an educational purpose, much different then the
original purpose of creating the series. Third, McIntosh received no direct revenue from the
remix or through this Rebellious Pixels website. Lastly, McIntosh substantially changed the

Buffy series not only by selecting particular scenes that matched up with Edwards stalker
persona but also adding specific music to the remix that contributed to the transformative nature.
1.

McIntoshs remix constituted a parody because the remix heavily commented on


the strength, dominance, and contrast between the lead female characters of the
Buffy series and the Twilight movies.

The trial court correctly determined that McIntoshs remix constituted a parody because
there is sufficient evidence to show that the remix commented on Buffy the Vampire Slayer. The
first step in the fair use analysis is to determine if the work constituted a parody, [b]ecause the
four factors in Section 107 are applied differently to parodies and satires, the starting point of the
Courts analysis is determining whether the Defendants useis property considered satire,
parody, or neither. Bourne Co. v. Twentieth Century Fox Film Corp., 602 F. Supp. 2d 499, 504
(S.D.N.Y. 2009). A parody has been defined by the Supreme Court as the use of some elements
of prior authors composition to create a new one that, at lease in part, comments on that authors
works. Campbell at 516.The critical distinction between a parody and a satire is on the object
of comment made by the allegedly infringing work. Bourne Co. at 504. As opposed to satire
which has no critical bearing on the substance or style of the original composition, which the
alleged infringer merely uses to get attention or to avoid the drudgery in working up something
fresh. Campbell at 516-17. Specifically, For the purposes of our fair-use analysis, we will treat
the work as a parody if its aim is to comment upon or criticize a prior work by appropriating
elements of the original in creating a new artistic, as opposed to scholarly or journalistic, work.
Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1268-69 (11th Cir. Ga. 2001).
The parodic content of the work only has to be reasonably received as commenting on the
original to constitute a parody. Leibovitz v. Paramount Pictures Corp., 137 F. 3d 109, 1214 (2d
Cir. N.Y. 1998). In Leibovitz, the court found parody in an advertisement promoting the release
of a movie. The photograph of the actress was recreated replacing the head with a male actor Id.
9

at 111. The court found that the advertisement differed in a way that may reasonably be
perceived as commenting on the seriousness of the plaintiffs photograph. Id. 114.
However, if the work generally comments on society and not the copyrighted work, it
will probably not be found to be a parody. Blanch v. Koons, 467 F.3d 244, 254 (2nd Cir. 2006).
In Blanch v. Koons, he artist took part of a fashion photograph depicting the legs of a model
wearing sandals, and repositioned that image in the context of other images to create a new work,
which was painted onto canvas. Id. 247. The circuit held that his work: may be better
characterized for these purposes as satire- its message appears to target the genre of which Silk
Sandals is typical, rather than the individual photograph itself Id. at 254.
Any reasonable viewer could easily perceive McIntosh parodic commenting on Buffy the
Vampire Slayer. The wise district court dictated, the parodic nature of the video remix is clear.
Its principal purpose is to criticize the anti-feminist message in Twilight and to comment
positively on the strong feminine character of Buffy as portrayed in the popular television
series. McIntosh commented strongly on the Supergirl attributes in which Buffy displayed.
Granted, as in Blanch, McIntosh was also commenting on society when creating his
remix. This case is marketable different through McIntosh heavily commenting on the specific
character of Buffy. McIntosh was commenting both on society and most importantly on the
copyrighted work he was using to create the remix.
The plaintiffs will argue that McIntosh is not entitled to fair use because he does not comment
directly on the Buffy character but instead on the Twilight and societys gender roles. The fair use
defense is not available when the target is not a part of the defendants comment. Rogers v.
Koons, 960 F.2d 301, 310 (2d Cir. 1992). However, Buffy is the target of McIntoshs comment
at the least in part. Buffy is an integral part of the entire remix that comments on Edwards

10

obsessive behavior. The contrasting behavior between Buffy and Bella conveys the absurdity of
Edwards actions.
In conclusion, McIntosh commenting on the strength and dominance of Buffy to fulfill his
purpose of creating a strong critic of Edward created a parody. McIntosh additionally
commenting on societys gender roles is only a part of the entire parody. McIntosh denouncing
the gender roles created in Twilight would not be possible with out commenting on Buffy and
vice versa. The comment towards society amounts to nothing more then a small part of the
parodic nature of the remix; therefore, McIntoshs remix constituted a parody.
2.

McIntosh had a purely non-profit educational purpose in creating the remix because
he did not sell the video, displayed the video for free on his ad-less website, and
created the video purely to comment on Buffy, Twilight, and societys gender roles.

The trial court correctly determined that the remix constituted a non-profit educational
purpose. This factor emphasizes the goals of the Copy Right Act of 1976 be providing greater
protection of works that further society: Courts are more willing to find a secondary use fair
when it produces a value that benefits the broader public interest. American Geophysical Union
v. Texaco Inc., 60 F.3d 913 (2d Cir. 1994). However, if the parodist stands to profit from
exploitation of the copyrighted material without paying the customary price weighs against fair
use. Harper & Row, Publrs. v. Nation Enters., 471 U.S. 539, 562 (U.S. 1985). The for-profit of
the work through publication and other procurement of direct revenues will likely demonstrate a
commercial purpose. Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1269 (11th Cir. Ga.
2001). In Suntrust Bank v. Houghton Mifflin Co., the publication of The Wind Done Gone
(TWDG), a fictional work based the defendants Gone With the Wind (GWTW), was
challenged for copyright infringement. Suntrust Bank at 1259. The defendant published their
work for profit as opposed to allowing access to it, which cut again the finding of fair use. Id. at
1269. Although, when the defendants uses serve the public benefit and the development of art
11

through scholarship, criticism, or comment the purpose will be found to be noncommercial.


Sundeman v. The Seajay Society, Inc., 142 F.3d 194, 203-04 (4th Cir. 1998). In Sundeman, the
court held that the effect the defendants uses have on the market for the plaintiffs work weighs
in favor of fair use. Id. at 208.. The defendant wrote a critical analysis of the plaintiffs
copyrighted book. Id. at 199. The defendant quoted and paraphrased sections of the plaintiffs
work in her critique. Id. at 199. The plaintiff sought injunctive relief of the paper under 17
U.S.C.A. 502. Id. at 199. The court found that the defendants work unquestionably served the
public interest through the scholarly critique of the plaintiffs copyrighted work. Id. at 204.
Contrary to Suntrust Bank, McIntosh did not receive any direct revenue from his video.
(Def. Dep. 13: 8). McIntosh was a part-time professor at DePaul University that taught New
Media and Womens and Gender Studies. (Def. Dep.6: 21-24). McIntosh had no commercial
purpose but intended the remix as a form a criticism. (Def. Dep. 12: 6-7). McIntosh took no
income from the many viewers of the Buffy vs. Edward remix. McIntosh did not have any ads on
his website and charged no one for viewing the video clip. (Def. Dep. 13: 16-18). McIntosh
chose to publish his work of fiction on the Internet free for the world to read.
The plaintiff will argue that McIntosh occasionally received revenue when giving audiovisual speeches and received job offers from publicity created from the remix. (Def. Dep.14: 911). However, this argument is very weak and unrelated. If you were to give the plaintiffs
argument any validity then any case of fair use would always show a level of commercial nature.
Overall, McIntoshs work demonstrates that the work heavily contributed to social interest the
commercial respect was very weak and if existent at all very speculative. McIntoshs use
unquestionably served the public benefit and the development of art. Sundeman at 203. In
conclusion, the overwhelming educational nature of the remix far outweighed any speculative

12

commercial nature. McIntosh never received any direct revenue from the remix or the website in
which he posted the remix. Further, he did not post any ads on his website to support his desire
for the public to view the remix without any encumbrances. Therefore, the remix was of a nonprofit educational nature.
3.

McIntosh created a substantially different, transformative work because his purpose


was starkly different then Rubys in creating the work, added music and scenes
from different sources than Buffy, and the overall video conveyed a multitude of
additional meanings.

The trial court correctly determined that McIntoshs remix was transformative from the
copyrighted work that McIntosh used. The test established by the Supreme Court in Campbell
dictates that whether the work merely supersedes the objects of the original creation, or instead
adds something new, with a further purpose or different character, altering the first with new
expression, meaning, or message. Campbell, 510 U.S. at 579.
Further the more transformative the new work, the less will be the significance of other
factors, like commercialism, that may weight against a finding of fair use. Id. at 579. In this
case, McIntosh created a non-profit educational parody, which has an obvious claim to
transformative useLike less ostensibly humorous form of criticism, it can provide social
benefit, by shedding light on an earlier work, and, in the process, creating a new one. Id. at 579.
If alleged copyright infringer has different purposes that the copyright holder in creating the
work while displaying the copyrighted work in a disparate manner will demonstrate a
transformative nature. Bill Graham v. Dorling Kindersley Ltd., 448 F.3d. 605, 609 (2nd cir. 2006).
In Bill Graham Archives v. Dorling Kindersley Ltd., the court held the defendants use of the
plaintiffs copyrighted work is transformatively different from the works original purpose. Id.
at 612. Defendant published a collaboration of a cultural history of the Grateful Dead. Id. at 607.
The book included images, test, and graphic art designed to simultaneously capture the eye and

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inform the reader. Id. at 607. The plaintiffs duel purposes for the copyrighted images were for
expression and promotion while the defendants purposes were to document and represent the
Grateful Dead concert events. Id. at 609. Additionally, the defendant displayed the images in a
transformative manner by combining with other creative material. Id. at 609.
However, if the alleged copyright infringer simply copies the copyrighted work using the
copyrighted work in similar manner and adds no distinct new elements it will demonstrate a
superseding rather than transformative nature. Davis v. Gap, 256 F 3d. 152, 176 (2nd Cir. 2001).
In Davis v. Gap, The court held that the defendants use was not protected by the fair use
doctrine. Id. at 176. The defendant used a photograph of the plaintiffs without permission in an
advertisement. Id. at 156. The Defendants use was not transformative, it superseded. Id. at 176.
Additionally, the plaintiff suffered market harm through loss of royalties and negative impact on
the plaintiffs opportunity to license to other. Id. at 176.
Similar to Bill Graham Archives, McIntosh has a distinctively different purpose in
creating his work then that of the copyright holders. McIntoshs purpose in this case was to
create a work dealing with the subtleties of gender and romance in mainstream media. My goal
was to show Edwards controlling behavior do that in a sort of funny and critical way. After
seeing parts of Twilight and Buffy in close succession, I thought an excellent way to do that
would be to have Buffy the Vampire Slayer meet Edward. Juxtaposing there two characters
highlights how backwards the Twilight series is in terms of gender, really how anti-feminist it is.
That was the goal: to make it funny but also highlight the patriarchal and stalker nature of
Edward. (Def. Dep. 11: 21-26, 12: 1-4). While Ruby being in the entertainment business sought
to solely profit from the Buffy character. (Pl. Dep. 34: 1-3). Rubys goal was to purely
commercial reasons contrasting with McIntoshs nonprofit educational purposes. The two works

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had starkly different purposes contributed to the transformative nature of McIntoshs work but
the McIntosh also made substantial changes. The trial court found that McIntoshs adaptation of
Buffy: the use of the television series created for educational and commenting on his website
with very short segments intertwined with scenes from twilight, the length altered, many
different episodes, and the entirety of the video was only 6 minutes. Moreover, McIntosh
overlaid the scenes with specific music that was commenting on the remix. The music snippets
commented on the visuals and the narrative of the remix. (Plaintiffs Exhibit 2).
C.

The district court found that the nature of Rubys work creative and protected by
copyright laws.

The trial court determined that the copyrighted work was at a fictional one that was to
afford the greatest protection under the Copyright Laws. In deciding the second factor an
analysis requires recognition that some works are closer to the core of intended copyright
protection than others, with the consequence that fair use is more difficult to establish when the
former works are copied. Campbell at 583. Consequently, a work that is creative or expressive
is granted less protection under fair-use then a work that is factual in nature. Howard B. Abrams,
The Law of Copyright, Section 15:52 (2006), (Suntrust Bank at 1271).
In the present case, the work produced by Ruby is imaginative; however, it is of little
significance because the Supreme Court has determined it is never likely to help much in
separating the fair use sheep from the infringing goats in a parody case, since parodies almost
invariably copy publicly known, expressive works. Campbell at 586. Moreover, the second
factor may be of limited usefulness where the creative workis being used for a transformative
purpose. Bill Graham Archives, 448 F.3d. at 612. McIntosh used Rubys work in a highly
transformative manner to comment on and contrast the main characters of two popular icons.

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Therefore, though this factor may slightly favor Ruby, it has less importance in the fair use
analysis with respect to parody, relative to the other three factors.
D.

McIntosh demonstrated that he only used the necessary amount of Rubys work to
create a successful parody because he copied specific scenes that were essential to
his commentary and merely used five minutes out of 37 episodes of Buffy.

The is sufficient evidence to show that that McIntosh took a reasonable portion of the
Rubys copyrighted work to weigh in favor of fair-use. The third factor addresses when the
amount and substantiality of the portion used in relation to the copyrighted work as a whole,
107(3), are reasonable in relation to the purpose of the copying. The Supreme Court when
addressing a parody, as in the case at hand, provides a different analysis than other forms of fairuse. Generally, a parody must be able to conjure up at least enough of [the] original to make the
object of its critical wit recognizable. Campbell 510 U.S. at 588. (emphasis added). Importantly,
a parodist does not have to take the bare amount of the copyrighted work to conjure up the
original work. Suntrust Bank 268 F.3d at 1257, 1273. Basically, a use will not always become
infringing if the parodist uses more of the original work than necessary. Id. at 1273. Instead,
once enough has been taken to assure identification, how much more is reasonable, will
depend [1] on the extent of to which the [works] overriding purpose and character is to
parody the original or, in contrast, [2] the likelihood that the parody may serve as a market
substitute for the original. Campbell, 510 U.S. at 588.
The allegedly infringing works purpose and character is demonstrated by the works
characteristics and the persuasiveness of the alleged infringers justification for creating the
work. Blanch v. Koons, 467 F.3d 244 (2d Cir. N.Y. 2006). In Blanch v. Koons, court held that the
defendant, a photographer, copied only enough of the defendants painting to convey his
purpose. Id. at 258. The defendant took certain aspects of the painting and subtracted others

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when creating his photograph. Id. at 258. The court believed the defendants reasoning for why
he used certain parts supported the doctrine of fair use. Id. at 258.
However, when the copyright infringer takes more than was reasonable to serve their
justified purpose the third factor will weigh against fair use. Rogers v. Koons, 960 F.2d 301, 311
(2d Cir. N.Y. 1992). In Rogers v. Koons, the court held affirmed the district courts ruling that the
defendant, Koons, went beyond the permissible level of copying under the fair use doctrine.
Id. at 311. The defendant, a sculptor, created a sculpture based on the defendants photograph
without consent. Id. at 305. The third factor did not constitute fair use because the defendant
copied plaintiffs whole work. Id. at 305.
Similarly in Video Pipeline, the court found that the alleged infringer took too much of
the plaintiffs work. Video Pipeline, Inc. v. Buena Vista Home Entmt, Inc., 275 F. Supp. 2d 543,
564 (D.N.J. 2003). The plaintiff, Video Pipeline, used truncated segments from the defendants
motion pictures to promote sales and rentals of home videos. Id. at 547. The clips were less than
2 minutes and were intended to give the movie viewer the storyline of the movie. Id. at 565. The
court found that the plaintiff relied exclusively on the expressive value of the defendants works
with no new element added. Id. at 564-65.
Unlike Rogers, McIntoshs remix constituted a parody. The court in Rogers found that
the defendants work did not fit the definition of a parody or a satire. Id. at

Leeway is given to

parodists in creating secondary works. McIntosh was justified in the amount that he used while
the defendant in Rogers was not. Moreover, McIntoshs copying was reasonable in relation to
the [his] purpose. Campbell 510 U.S. at 586. Contrary to Video Pipeline, where the clip
previews were a shortened replica of spliced scenes from the copyrighted work. Video Pipeline
Inc. at 564. The circumstances of this case show that McIntosh spliced particular scenes from

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Buffy and Twilight together while adding music to complement the parodic nature of his remix.
Analogous to Blanch, McIntosh copied only enough to demonstrate his purpose of commentary.
Blanch at 258. Further, the district court correctly concluded that since McIntosh used only five
minutes out of the entire seven seasons it tipped the third factor towards fair use. The justified
purpose to comment on Buffy, Edward, and gender roles allowed him to rightfully use scenes
from the Buffy series. Therefore, based on the character and purpose of McIntoshs video he did
not take an unreasonable amount of the Buffy character and this factor weighs in favor of fair use.
E.

The district court properly found that the market damage was nothing as applied to
parody

The district court correctly determined that McIntoshs remix had insubstantial impact on
the copyrighted works market and potential derivatives. The forth factor is the effect of the use
upon the potential market for or value of the copyrighted work. 107(4). The Supreme Court
has recognized that this is undoubtedly the single most important element of fair use.
Campbell at 566.The magnitude of this factor does not from the courts according
disproportionate weight to it, but from its close link to the other fair use factors, including the
purpose and character of the use and the extent of the portion taken. Leibovitz at 1225.
Additionally, [s]ince fair use is an affirmative defense, its proponent would have difficulty
carrying the burden of demonstrating fair use without favorable evidence about relevant
markets. Campbell at 590. This factor has a two- pronged analysis addressing particular actions
of the alleged infringer and if the aggregated conduct of this sort will have a substantially
adverse impact on the potential market. Campell at 590.

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1.

McIntoshs behavior did not harm the marketability for Buffy because the
marketability of the character was nonexistent at the time he created the video.

The first aspect of the fourth factor looks at how alleged copyright infringers particular
impacted the copyrighted work. McIntosh has provided evidence that the market potential for
any products related to the series is nearing the end.(Affidavit) Additionally, it is fairly definite
that after a television series is off the air for one year for market demand to continue. (Affidavit)
The popularity of the Buffy character had run its course. The show was very popular at one time
but it has been off the air for a substantial amount of seven years.McIntosh has satisfied this
burden and provided favorable evidence about the insignificant impact on relevant markets.
Therefore, the burden switches to the plaintiff to provided proof of the market harm. In this case,
the plaintiff supplies no direct evidence that the allegedly infringing use hurt the market.
2. McIntosh did not create a video that could become a substitute for viewing the Buffy
series because the video had very different market functions than the original and was
only six minutes long giving the viewers only a taste of the television series.
The second aspect of the fourth factor requires an analysis is whether the allegedly
infringing work is a market substitute for the copyrighted work, the role of the courts in
determining fair use is to distinguish between biting criticism [that merely] suppresses demand
[and] copyright infringement [,which] usurps it. Campbell, 510 U.S. at 592 (quoting Fisher v.
Dees, 794 F.2d 432, 438 (9th Cir. 1986)). If the two works serve different market functions the
allegedly infringing work will not serve as a replacement for the original. Sundeman v. The
Seajay Society, Inc., 142 F.3d 194, 207 (4th Cir. 1998). In Sundeman, the court held that the
effect the defendants uses have on the market for the plaintiffs work weighs in favor of fair use.
Sundeman at 208. The defendant wrote a critical analysis that quoted and paraphrased parts of
the plaintiffs copyrighted book. Id. at 199. The plaintiff sought injunctive relief of the paper.

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Id. at 199. The defendants work was transformativeand did not have the purpose or effect of
supplanting the copyrighted work. Id at 207.
In Bourne Co., the court held that the defendants copied work constituted fair use and
granted summary judgment. Bourne Co. at 511. The defendant used portions of the plaintiffs
copyrighted song without permission. Id. at 501. The defendants work served very different
market functions and could no way substitute for the original. Id at 510.
This aspect of the fourth factor relates directly back to the discussion of 107(1). Similar
to Sudeman and Bourne Co., McIntoshs remix was substantially different than the original work
added new meaning and purpose. The remix being a transformative parody it is more likely that
the new work will not affect the market for the original in a way cognizable under this factor,
that is, by acting as a substitute for it. Campbell at 591. The work did serve as a market
replacement for the Buffy television series. Any reasonable viewer of McIntoshs remix will not
decide to watch a six minute spliced video of Buffy instead of buying an episode of the television
series. The scenario is highly unlikely and implausible. If anything, the remix will promote
buying more videos of Buffy and supply increased revenue for Ruby.
3. McIntoshs work did not cause any cognizable harm to derivative markets because his
work was a parody, which has no protectable derivative market.
The final aspect of the fourth factor turns on the harm the infringing uses may have on
the market for the derivatives of the copyrighted work. The Supreme court explained that [t]he
market for potential derivative uses includes those that creators of original works would in
general develop or license others to develop. Therefore, even when the alleged infringers
actions do not harm the copyrighted work it could harm the market for derivatives. Salinger v.
Colting, 641 F. Supp. 2d 250, 267 (S.D.N.Y. 2009). As in Salinger v. Colting, the court held that
the defendants work would harm the market for derivative works and weighed against fair use.
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Salinger v. Colting, 641 F. Supp. 2d 250, 268. (S.D.N.Y. 2009). The defendants work was of a
nature that the plaintiff would in general develop. Id. at 267. Although, the defendants particular
behavior would not harm the copyrighted work it was likely that it could affect the market for
derivative works. Id. at 267. However, the Supreme court has dictated that there is no
protectable derivative market for criticism. Campbell 510 U.S. at 592. Demonstrated in
Leibovitz, the forth factor weighed in favor of the alleged copyright infringer in the case of
parody. Leibovitz at 117. The plaintiff had no right to licensing fees for a work that was deemed
a parody and further could not identify any relevant market for a derivative work that would be
impacted. Id at 107. In conclusion, for all the mentioned reasons, the effect of McIntoshs uses
have on the market for, or value of, the Buffy series weights in favor of finding the uses fair
under 17 U.S.C.A. 107.

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CONCLUSION
For all the foregoing reasons, the court should affirm the District court of the Northern
District of Illinois Eastern Division's grant of the defendants motion for summary judgment.

Dated: March 05, 2010

Respectfully submitted,
Exam # 6903
Attorney for Appellee

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