Vanderbilt Law Review

First Page



In Columbia Broadcasting System v. Loew's, Inc.,' the Supreme Court of the United States aroused great concern in the entertainment world when it affirmed (by an evenly divided court) a lower court decision enjoining CBS from producing a television burlesque by comedian Jack Benny of the motion picture Gaslight. Plaintiff Loew's had claimed an infringement of their copyright. CBS countered with the contention that their parody was a "fair use" of plaintiff's work. In affirming, the Supreme Court, in its initial consideration of this issue, placed its imprimatur upon a decision which takes the position that parody and burlesque do not come within the shelter of fair use. Thus, further development of the emergent, although amorphous, doctrine of a parody as a fair use unfortunately seems scotched at least for the present. For if the doctrine of fair use is not applicable to them, parody and burlesque would seem by their very nature to constitute an infringement per se. Insofar as a burlesque, if it is to be effective, must necessarily partake of plot or subject of the original,to protect the original on grounds that the burlesque is closely parallel in form is to deny the burlesque its existence. Regrettably, this position seriously threatens the development of these important and established literary forms.