Spectator the Freedom to Ridicule

By KURT ANDERSEN

Let's say I'm writing a column for TIME and want to demonstrate what a lame novelist Robert James Waller is. Easy, in every sense. I get a copy of Slow Waltz in Cedar Bend (which is published by Time Warner), pluck out a piece of lazy prose, and print it here: "A monkey called, sounding far and lonesome. The classic jungle sound from old Tarzan movies." Or I could go a step further and mimic Waller, as Billy Frolick does in his new book-length parody, The Ditches of Edison County ("Concave's scream echoed through the canyons and ditches of Edison County, all the way to a farmhouse on the other end of town"). The legal principle that permits us to quote or closely imitate Waller's writing is "fair use," which carves out a small free-fire zone within which critics and parodists get a commonsensical exemption from the laws against copyright infringement. To quote, in other words, is not to infringe. Isn't America's free marketplace of ideas glorious?

Now let's say I'm a commentator on TV and want to demonstrate what a dreadful sitcom Cafe Americain is, or how sappy Barbara Walters' interviews are, or the creepiness of Michael Jackson's music videos. Could I turn on the VCR, pluck out some telling snippets, then use those clips as video "quotes" to illustrate my criticisms? No, I could not, as I discovered firsthand, again and again, in the course of producing three specials for two different networks between 1990 and 1992. Although fair use theoretically applies to television just as it does to magazines and newspapers, as a practical matter it exists intermittently at best in broadcasting.

Certainly the network TV system is rigged heavily against fair use. For one thing, the insurance companies that provide the obligatory "errors and omissions" insurance for TV productions demand that each clip come with a permission slip from its copyright owner. (Imagine if a book critic had to get Rush Limbaugh's permission to quote his prose in a review, and maybe pay him for the privilege; that's precisely the situation in TV.) Furthermore, television "signal piracy" -- that is, merely taping and then broadcasting 10 seconds of Barbara Walters in order to critique her performance -- is a federal crime. Well, then, could one at least produce a high-verisimilitude parody of Michael Jackson's Man in the Mirror? No, not if the Supreme Court upholds an appeals court ruling that 2 Live Crew "stole" Roy Orbison's 1964 song Oh, Pretty Woman when the group released a rap parody of the tune in 1989. (As it happens, Jackson himself has signed a friend-of-the-court brief against 2 Live Crew's parody.)

The shrunken state of free speech on TV is especially disturbing given the imminent roll-out of the information superhighway, which promises to make the American marketplace of ideas an almost entirely video realm in the 21st century. A good part of our intellectual transactions may start taking place in the digitized ether. Meantime, the proliferation of channels and programs is improbably transforming a few TV companies into guerrilla fighters on behalf of fair use. David Nuell, executive producer of Entertainment Tonight until a year ago (and now creating a similar program for Time Warner), regularly took clips from movies and TV shows without permission when the scenes had some journalistic value. "We'd make a courtesy call if it was a clip of somebody litigious, ((like)) a Frank Sinatra," Nuell says. "But we made our own news judgments. If our attorney said it was fair use, we'd take it." Alas, the legal criteria -- How did you get the clip? How much are you showing? To what end? -- are slightly murky, and lawyers tend to hem, haw and fret toward a veto. "There were four or five different attorneys at Paramount," says Nuell of the company that produces Entertainment Tonight. "And we'd get four or five different opinions."

Steven Paul Mark is the lawyer for cable TV's Comedy Central (half-owned by Time Warner). His pursuit of the channel's right to lift and satirize TV programs without permission -- music videos, network news coverage of the 1992 presidential nominating conventions -- is stalwart and heartening, and happens to make for good publicity as well. "I'm very aggressive about fair use," Mark says, "and I give some of my colleagues hives." He agrees that in TV, fair use is all but mooted by contradictory federal laws. Since fair use is allowed under copyright law, then it also should be under the Communications Act -- which now makes it illegal to tape and "quote" from TV shows on TV. "We haven't decided if -- that is, when -- we are going to fight that," says Mark.

During last month's oral arguments before the Supreme Court in the 2 Live Crew case, the Justices (with the interesting exception of Clarence Thomas) seemed emphatically engaged in the issue. If the court's decision goes the wrong way, it will surely make journalists as well as ironists more hesitant to expose and criticize by mimicking or quoting the powerful and celebrated. Even paper-and-ink scribblers are in jeopardy. A bill now sliding through Congress would ratchet up the incentives for plaintiffs to sue for any sort of copyright infringement, making it riskier for a newspaper to publish, say, a leaked corporate memo. A lawyer for a major book publisher says such a law "would definitely have a chilling effect. We make these decisions five times a day. We're conservative. And we'll have to be more conservative." The New Republic is America's finest journal of opinion. But if it is illegal to parody a Roy Orbison song, then isn't it illegal for The New Republic to have published on its cover this week a dead-on parody of a Batman and Robin comic- book panel? After all, Time Warner owns Batman and Robin.