Comics Copyrights in Berlin v. E.C. Publications

Mad Magazine Sued Over Showtunes' Lyrics in Landmark Parody Case

Apr 27, 2009

Mad magazine spoofs led to a 1964 copyright lawsuit brought by Irving Berlin and others. Mad's victory set a precedent, and defined comics copyrights for years.

Since its early years as an E.C. comic, Mad magazine had parodied numerous comic strips and comic books. Early targets included Archie, Flash Gordon, Superman, and Batman and Robin, lampooned under fake names like “Starchie” or “Flesh Garden” to avoid copyright infringement.

When Mad switched to magazine format in mid-1955, it did so mostly to avoid the increased censorship that was decimating the comics of the time. The new Mad magazine prospered, while other E.C. titles, such as Tales from the Crypt and Weird Science, weren't so lucky. Yet Mad maintained is provocative attitude, parodying comics and other pop-culture phenomena to great effect.

Soon, Mad magazine branched out to parody songs and musicals in a comic book format. This began with 1960’s “My Fair Ad-Man”, a spoof of My Fair Lady “starring” caricatures of Cary Grant and Frank Sinatra (as a beatnik version of Eliza Doolittle), depicted singing lyrics to the tune of songs from the musical.

While this spoof didn't provoke any legal action, other song lyrics soon landed Mad in legal trouble for copyright infringement. In 1961, the Fourth Annual Edition of the Worst of Mad, a compilation issue, printed parody lyrics to fifty-seven old standards. There, Mad-men Frank Jacobs and Larry Siegel rewrote Irving Berlin's "A Pretty Girl is Like a Melody," for example, as "Louella Schwartz Describes Her Malady."

The holders of the copyrights of twenty-five of the songs – including Irving Berlin, as well as Cole Porter and Richard Rogers – were not amused. They soon sued E.C., Mad's publisher, in what became known as Irving Berlin et al. v. E.C. Publications, Inc.

In 1963, the U.S. District Court decided the case in favor of Mad magazine – mostly. The court did find that two of the twenty-five original songs ("Always" and "There's No Business Like Show Business") had been infringed upon. Emboldened by this small victory and grounds for appeal, Irving Berlin and the other plaintiffs took the case to the U.S. Court of Appeals in 1964.

However, the higher court also ruled in favor of Mad magazine, finding that, in fact, none of the songs constituted infringement. In his decision, Judge Charles Metzner wrote that the song parodies took only as much from the originals necessary to “conjure them up,” so although the songs themselves were not the specific targets of parody, the copying involved constituted “fair use,” and were therefore exceptions to copyright infringement.

Irving Berlin and company appealed to the U.S. Supreme Court, but the Court decided not to hear the case, and Metzner's decision stood.

Berlin’s “conjure-up doctrine” would play an integral part of future decisions with respect to parody and copyright. Ten years later, it would stand as a precedent in the infamous "Air Pirates" case, only there it would be used to quash parody by a judge less sympathetic than Metzner.

Furthermore, the principles of ownership in Berlin, as applied to comic books, would go unaltered for nearly forty years, until a legal fight between Neil Gaiman and Todd McFarlane.

The copyright of the article Comics Copyrights in Berlin v. E.C. Publications in Graphic Novels/Comics is owned by Luke Arnott. Permission to republish Comics Copyrights in Berlin v. E.C. Publications in print or online must be granted by the author in writing.