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The kindness of strangers, eh? Turns out the estate of author Tennessee Williams is no longer so keen on helping out strangers. The University of the South, which owns Mr. Williams’s catalogue, including his famous play A Streetcar Named Desire, has threatened legal action against a New York City playwright. The university claims that Mark Sam Rosenthal’s one-man show, Blanche Survives Katrina in a FEMA Trailer Named Desire, infringes upon Williams’s work. In response, Mr. Rosenthal claims that his First Amendment right to criticism and parody should trump copyright.
In making a First Amendment claim, Mr. Rosenthal is attempting to invoke Campbell v. Acuff-Rose, the leading case relating to the fair use doctrine. In Campbell, the Supreme Court defended 2 Live Crew’s right to parody Roy Orbison’s famous “Oh Pretty Woman” as fair use. Since 2 Live Crew’s version was unlikely to receive license from Acuff-Rose, the song’s copyright owner, the Court enforced fair use as a constitutional protection of free speech. Similarly, here, Mr. Rosenthal claims that the University of the South would not have licensed Williams’s play, and his First Amendment right to comment on FEMA must be protected.
If a suit does progress, it will prove an interesting test of Campbell‘s scope. The case provides strong defense of parody but gives less advice regarding criticism or satire. Though similar, the Court expressly explained that criticism and satire are to be afforded less defense than parody. In Mr. Rosenthal’s case, a court will be forced to decide if the play’s comment and satire of the government deserve more protection than does the university’s intellectual property. In so doing, a court could provide an expansion or contraction of fair use.
– Steve Berneman
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