Monster Magazine Covers in Biography Are Fair Use

U.S. District Judge Michael M. Baylson agreed, finding that there was a “transformative nature” to the use of Gogos' paintings in the book because it was designed to be a biography and retrospective of an artist who had created dozens of memorable images of Dracula, Frankenstein, the Mummy, the Creature from the Black Lagoon and other staples of classic monster movies. “The fact that the Gogos book is inherently biographical renders it so fundamentally transformative in nature, coupled with the fact that Spurlock utilized such a quantitatively and qualitatively minor portion of the magazines, requires this court to conclude that Spurlock's use is fair use and to grant Spurlock's motion for summary judgment on the copyright claims,” Baylson wrote in his 80-page opinion.

Baylson also rejected Warren's contention that publication of the book interfered with Warren's plans for a coffee-table book on the monster magazines, noting that Warren had taken no significant steps to produce a book until after Spurlock's book was published, and that witnesses had testified that Spurlock's book would not adversely affect the market for Warren's book if it were published.

Warren also argued that Spurlock's use of “Famous Monster” in his book title violated unfair competition laws by suggesting an affiliation with Warren's magazines, the most popular of which was Famous Monsters of Filmland. Spurlock's lawyers ' M. Kelly Tillery, Christopher D. Olszyk and Cara M. Kearney of Pepper Hamilton ' successfully argued that Warren had abandoned any common law trademark or other rights since he had not used them since 1983, when the publication of the magazine ceased.

In the opening sections of the opinion, Baylson discussed but did not decide a key dispute in the case ' whether Warren owned the artwork that Gogos, a freelancer, had created for Warren's covers of the magazines Famous Monsters of Filmland, Eerie and Creepy. Warren's lawyers ' Manny D. Pokotilow, Salvatore R. Guerriero and Douglas Panzer of Caesar Rivise Bernstein Cohen & Pokotilow ' argued that Gogos signed over all rights to any artwork used on the magazine covers. But Spurlock's lawyers offered evidence suggesting that the parties never did intend such a transfer of rights.

Baylson found there was a genuine dispute of fact on the issue of ownership, but that the issue was ultimately mooted by Spurlock's successful fair use defense.

Fair Use Debated

The lengthiest section of the opinion focused on the complicated test for deciding when the use of copyright-protected material qualifies as a fair use of a portion of the protected work. Spurlock's lawyers argued that since the book is a biography and an artist's retrospective, it “is a work of scholarship, comment, and research, and is precisely the type of work that the Fair Use Doctrine is intended to protect.”

Although the book includes 24 paintings by Gogos that first appeared as covers for Warren's magazines, the defense team noted that only ten were portrayed in the book as covers. The other 14 appeared without any of the magazine's text. And those two-dozen images accounted for just 15% of the 160 Gogos images in the book, they noted.

Baylson agreed, finding that the book effectively quoted from the magazines, “but with illustrations, rather than words.”

Warren's lawyers argued that the magazine covers were qualitatively a significant portion of the magazines and were at “the heart” of the magazine's content. Baylson disagreed, saying: “[T]his court finds that Spurlock did not appropriate the 'heart' of the copyrighted works.”

Instead, Baylson said, the magazines ranged from 68 to 100 pages and had as their purpose updating its readers on recent developments in the movie monster industry and providing in-depth interviews with leading figures in the world of movie monsters. As a result, Baylson concluded that Spurlock had used only about 1% to 1.5% of the magazines when he reproduced the covers in his book.

For Baylson, the most important distinction seemed to be the differences in the purposes of the publications. The Gogos book, Baylson said, “is a retrospective and an illustrated biography of an artist who was, and remains, important to movie monster enthusiasts” and uses the magazine cover art “to pay homage to his artistic accomplishments.” By contrast, Baylson said, the Warren magazines were devoted to discussing developments in the world of movie monsters, interviewing actors and advertising various movie monster-related paraphernalia.

“With the nature of the magazines in mind, the covers were not used for the purpose of paying homage to Basil Gogos or to chronicle his career. Rather, these covers were utilized to help sell magazines, for the purpose of describing the latest in monster movies through an eye-catching display, and to convey to the reader or potential reader what topics the magazine discussed in that issue,” Baylson wrote.

In the movies, it seems that monsters are always up to no good ' making mayhem or setting fires. But in a federal court in Philadelphia recently, a couple dozen movie monsters made some important new law and set a few significant precedents in the area of copyrights and trademarks that may help to define the doctrine of fair use for years to come.

In Warren Publishing Co. v. Spurlock, 08-3399, the publisher of several popular movie monster magazines from the 1950s and 1960s claimed that its copyrights and trademarks were violated by a recently published book that chronicles the art of a man whose paintings appeared on more than 50 of its magazine covers. But lawyers for J. David Spurlock and Vanguard Productions ' the publishers of the book, Famous Monster Movie Art of Basil Gogos (www.amazon.com/Famous-Monster-Movie-Basil-Gogos/dp/1887591710) ' argued that their inclusion of the magazine covers was protected by the fair use doctrine because the main purpose of the book was to celebrate the art of Gogos, a purpose far different from the goal that the magazine publisher had.

'Transformative Nature'

U.S. District Judge Michael M. Baylson agreed, finding that there was a “transformative nature” to the use of Gogos' paintings in the book because it was designed to be a biography and retrospective of an artist who had created dozens of memorable images of Dracula, Frankenstein, the Mummy, the Creature from the Black Lagoon and other staples of classic monster movies. “The fact that the Gogos book is inherently biographical renders it so fundamentally transformative in nature, coupled with the fact that Spurlock utilized such a quantitatively and qualitatively minor portion of the magazines, requires this court to conclude that Spurlock's use is fair use and to grant Spurlock's motion for summary judgment on the copyright claims,” Baylson wrote in his 80-page opinion.

Baylson also rejected Warren's contention that publication of the book interfered with Warren's plans for a coffee-table book on the monster magazines, noting that Warren had taken no significant steps to produce a book until after Spurlock's book was published, and that witnesses had testified that Spurlock's book would not adversely affect the market for Warren's book if it were published.

Warren also argued that Spurlock's use of “Famous Monster” in his book title violated unfair competition laws by suggesting an affiliation with Warren's magazines, the most popular of which was Famous Monsters of Filmland. Spurlock's lawyers ' M. Kelly Tillery, Christopher D. Olszyk and Cara M. Kearney of Pepper Hamilton ' successfully argued that Warren had abandoned any common law trademark or other rights since he had not used them since 1983, when the publication of the magazine ceased.

In the opening sections of the opinion, Baylson discussed but did not decide a key dispute in the case ' whether Warren owned the artwork that Gogos, a freelancer, had created for Warren's covers of the magazines Famous Monsters of Filmland, Eerie and Creepy. Warren's lawyers ' Manny D. Pokotilow, Salvatore R. Guerriero and Douglas Panzer of Caesar Rivise Bernstein Cohen & Pokotilow ' argued that Gogos signed over all rights to any artwork used on the magazine covers. But Spurlock's lawyers offered evidence suggesting that the parties never did intend such a transfer of rights.

Baylson found there was a genuine dispute of fact on the issue of ownership, but that the issue was ultimately mooted by Spurlock's successful fair use defense.

Fair Use Debated

The lengthiest section of the opinion focused on the complicated test for deciding when the use of copyright-protected material qualifies as a fair use of a portion of the protected work. Spurlock's lawyers argued that since the book is a biography and an artist's retrospective, it “is a work of scholarship, comment, and research, and is precisely the type of work that the Fair Use Doctrine is intended to protect.”

Although the book includes 24 paintings by Gogos that first appeared as covers for Warren's magazines, the defense team noted that only ten were portrayed in the book as covers. The other 14 appeared without any of the magazine's text. And those two-dozen images accounted for just 15% of the 160 Gogos images in the book, they noted.

Baylson agreed, finding that the book effectively quoted from the magazines, “but with illustrations, rather than words.”

Warren's lawyers argued that the magazine covers were qualitatively a significant portion of the magazines and were at “the heart” of the magazine's content. Baylson disagreed, saying: “[T]his court finds that Spurlock did not appropriate the 'heart' of the copyrighted works.”

Instead, Baylson said, the magazines ranged from 68 to 100 pages and had as their purpose updating its readers on recent developments in the movie monster industry and providing in-depth interviews with leading figures in the world of movie monsters. As a result, Baylson concluded that Spurlock had used only about 1% to 1.5% of the magazines when he reproduced the covers in his book.

For Baylson, the most important distinction seemed to be the differences in the purposes of the publications. The Gogos book, Baylson said, “is a retrospective and an illustrated biography of an artist who was, and remains, important to movie monster enthusiasts” and uses the magazine cover art “to pay homage to his artistic accomplishments.” By contrast, Baylson said, the Warren magazines were devoted to discussing developments in the world of movie monsters, interviewing actors and advertising various movie monster-related paraphernalia.

“With the nature of the magazines in mind, the covers were not used for the purpose of paying homage to Basil Gogos or to chronicle his career. Rather, these covers were utilized to help sell magazines, for the purpose of describing the latest in monster movies through an eye-catching display, and to convey to the reader or potential reader what topics the magazine discussed in that issue,” Baylson wrote.