ADDITIONAL CASES

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FOR SPERRY V. FLORIDA – SEE THE FIRST CASE IN THIS DOCUMENT UNDER CHAPTER ONE.
THE TEXT OF THE CASE IS ALREADY WITHIN THIS DOCUMENT THERE.
United States Court of Appeals,
Second Circuit.
ELSMERE MUSIC, INC., Plaintiff-Appellant,
v.
NATIONAL BROADCASTING COMPANY, Defendant-Appellee.
No. 1180, Docket 80-7145.
Argued May 28, 1980.
Decided June 9, 1980.
Copyright proprietor of advertising jingle “I Love New York” brought suit to redress alleged
copyright infringement which occurred when tune “I Love Sodom” was broadcast on television
comedy sketch. On cross motions for summary judgment, the United States District Court for the
Southern District of New York, Gerard L. Goettel, J., 482 F.Supp. 741, found song parody to be
noninfringing fair use of copyright, and copyright proprietor appealed. The Court of Appeals held
that parodist's use of tune of “I Love New York” was protected fair use.
Affirmed.
Concept of “conjuring up” an original came into copyright law not as limitation on how much
of an original may be used, but as recognition that parody frequently needs to be more than a
fleeting evocation of an original in order to make its humorous point; a parody is entitled at least
to “conjure up” the original and even more extensive use would still be fair use, provided parody
builds upon the original, using original as known element of modern culture and contributing
something new for humorous effect or commentary.
*253 Paul Siegert, New York City (Siegert & Miller, Philip R. Kaufman, New York City, on the
brief), for plaintiff-appellant.
Pamela G. Ostrager, New York City (Coudert Brothers, Carleton G. Eldridge, Jr., R. David Jacobs,
Corydon B. Dunham, Gen. Counsel, Jay E. Gerber, William T. Abbott, N. B. C., New York City, on
the brief), for defendant-appellee.
Before FEINBERG, NEWMAN and KEARSE, Circuit Judges.
PER CURIAM:
(1)
(2)
This copyright infringement suit concerns a skit, shown on the television program
“Saturday Night Live,” poking fun at New York City's public relations campaign and its theme
song. In the four-minute skit the town fathers of Sodom discuss a plan to improve their city's
image. The satire ends with the singing of “I Love Sodom” to the tune of “I Love New York.” The
District Court for the Southern District of New York (Gerard L. Goettel, Judge) rejected
appellant's claim of copyright infringement, concluding that the parody was protected fair use.
Believing that, in today's world of often unrelieved solemnity, copyright law should be hospitable
to the humor of parody, and that the District Court correctly applied the doctrine of fair use, we
affirm on Judge Goettel's thorough opinion.[FN1] 482 F.Supp. 741.
FN1. The District Court concluded, among other things, that the parody did not make more
extensive use of appellant's song than was necessary to “conjure up” the original. 482 F.Supp. at
747. While we agree with this conclusion, we note that the concept of “conjuring up” an original
came into the copyright law not as a limitation on how much of an original may be used, but as a
recognition that a parody frequently needs to be more than a fleeting evocation of an original in
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order to make its humorous point. Columbia Pictures Corp. v. National Broadcasting Co., 137
F.Supp. 348, 354 (S.D.Cal.1955). A parody is entitled at least to “conjure up” the original. Even
more extensive use would still be fair use, provided the parody builds upon the original, using
the original as a known element of modern culture and contributing something new for humorous
effect or commentary.
C.A.N.Y., 1980.
Elsmere Music, Inc. v. National Broadcasting Co.
623 F.2d 252, 207 U.S.P.Q. 277, 1978-81 Copr.L.Dec. P 25,170, 6 Media L. Rep. 1457