## Facts

- Bourne Co. owned copyright interests in multiple versions and arrangements of the song “When You Wish Upon a Star,” originally written for the film *Pinocchio* and widely exploited through licensing and media uses.
- Defendants produced and broadcast the animated television series *Family Guy*.
- A *Family Guy* episode titled “When You Wish Upon a Weinstein” included a musical number, “I Need a Jew,” performed to a melody similar to “When You Wish Upon a Star,” paired with new comedic lyrics.
- The episode was broadcast on television multiple times.
- Bourne sued for copyright infringement, alleging the *Family Guy* song copied the protected music of “When You Wish Upon a Star” and replaced the original lyrics with offensive stereotypes.
- The parties filed cross-motions for summary judgment: defendants sought judgment based on fair use (parody), and Bourne sought judgment on infringement.

## Issues

1. Whether defendants’ use of elements of “When You Wish Upon a Star” in the *Family Guy* song “I Need a Jew” constituted fair use as parody under 17 U.S.C. § 107.
2. Whether the amount of musical copying used to evoke the original exceeded what is permitted for a parodic purpose.
3. Whether the accused work caused cognizable market harm to the original song or its licensing markets.

## Decision

- The court granted defendants’ motion for summary judgment and denied Bourne’s cross-motion.
- The court held that “I Need a Jew” was a transformative parody and therefore protected by fair use under 17 U.S.C. § 107.
- Applying the four statutory factors, the court found the purpose and character favored fair use because the new work added expression and meaning by using the original’s familiar, idealistic style to create comic and critical commentary.
- The court treated the creative nature of the original as weighing less heavily against fair use given the parodic context.
- The court found the amount taken was reasonable to “conjure up” the original and make the parody recognizable.
- The court found no meaningful market substitution or usurpation because the original and the parody served different purposes and audiences.

## Legal Principles

- Fair use under 17 U.S.C. § 107 requires a holistic evaluation of the statutory factors, with emphasis on whether the secondary work is transformative.
- A parody may qualify as transformative when it uses elements of a copyrighted work to comment on, criticize, or contrast with the original or its cultural associations.
- In parody, copying that is sufficient to evoke and identify the original can be permissible when proportionate to the parodic objective.
- Market harm analysis focuses on whether the secondary work acts as a substitute for the original or its legitimate derivatives, not whether it is merely offensive or reputationally undesirable.

## Conclusion

The court concluded that the *Family Guy* song used recognizable elements of “When You Wish Upon a Star” to create transformative parody, took no more than necessary for that purpose, and did not displace the market for the original, warranting summary judgment for defendants on fair use grounds.


Bourne Co. v. Twentieth Century Fox Film Corp., 602 F. Supp. 2d 499 (S.D.N.Y. 2009)