Castle Rock Entertainment, Inc. v. Carol Publishing Group, Inc., 150 F.3d 132 (1998) p.647

SUBJECT

fair use

FACTS

D made a book of Seinfeld trivia based on the TV show.

ISSUE

Whether the Seinfeld Aptitude Test constitutes fair use of the Seinfeld television series.

RULE

A copyright owner owns the right to expand into potential markets. Just because he does not, does not mean other people can take advantage of those potential markets.

HOLDING

The judgment of the District COurt is affirmed. The SAT does not fall under the fair use doctrine.

RATIONAL

Factors:
1. no question that this was for commercial use
2. clearly the Seinfeld show was a copyrighted fictional work; had it been based on factual stuff there would have been a bit more leniency
3. substantiality of the amount used; must be examined in context. the SAT does not serve a transformative use. does not serve a critical or otherwise transformative purpose. 4. Seinfeld made the decision not to make this type of derivative work. The key here is potential market. The mere fact that the copyright owner did not go into that market does not matter. The issue is whether there is a potential market. It is there choice not to use that market. Fair use fails under this element as well.

NOTES

As a rule people will not go into a potential market of a parody of their own work. This is why parody market is not considered a potential market.

Created on: Thursday, October 21, 1999 at 19:47:17 (PDT)