I would put Eugene Volokh on Levine's Top 10 List of Academic Greats. But I think he misses the mark in his recent analysis of copyright law.
There is indeed a well founded reason to hold (as Volokh puts it) a "cynical view" of how judges apply copyright laws.
The "parody/satire" distinction that Volokh cites from Campbell v. Acuff-Rose suffers from this fatal flaw:
any use of an original composition in a new work will always constitute a "comment" on the original work to some degree. It then becomes a matter of subjective interpretation to determine how significant the degree is.
Sometimes the "comment" will be in the forefront of the new work. Other times, it will lie as an abstraction underneath the surface text of the new creation that utilizes the original work. But determining such distinctions will always be a subjective artistic interpretation that should be irrelevant as far as First Amendment protections are concerned.
Therefore, any judge who attempts to apply the "parody/satire" distinction will inevitably violate Levine's First Rule of Law: It is inherently illegitimate for courts to use subjective artistic interpretations in order to decide substantive issues of law.
Posted by Justin Levine at December 23, 2004 03:43 PM | TrackBack