United States v. William Valencia
677 F.2d 191
2d Cir.
1982
Check Treatment

*1 1269, success, just F.Supp. public figure as a must tolerate Corp., Films Superior v. (S.D.N.Y. 693, USPQ personal average pri- more attack than the 697-698] 1274 [168 415.” Copyright, 1970); § 2 M. Nimmer vate citizen. New York Times Co. v. Sulli- 710, van, 376 U.S. 84 S.Ct. 11 L.Ed.2d Judge Cooper was not reached This issue As we out in Berlin ruling that defend- of his erroneous because of parody “has thrived from the time Chau- burlesque plaintiff’s not work did ants’ 453 cer.” 329 F.2d at 545. Even the Canter- F.Supp. work itself. copyrighted since argues bury indulged largely Tales in sexual satire. Plaintiff-appellee n.19. through the exploited works were the two evidence of actu- Lastly, since there is no copies, live (records, printed media same damage caused to potential al or economic facto had the Champion ipso performances) performance reason of by MCA defendants’ Bugle diminishing the demand of effect recordings Champion, of I be- and sale of reasoning fatally is this my view Boy. In here is damages the award of lieve that is not whether The issue defective. excessive, unjustifia- and an inappropriate, copy- media as uses the same parody plaintiff. windfall to the ble parodies do—but work —most righted reverse the For these reasons I would a sub- serving as “capable it is of district court. judgment of the Latman, The original,” A. stitute for 1979) (5th (emphasis ed. Law 215 Copyright demand and depends which

supplied), market on the overlap rather than

product Ap- vended. products are which the two eminently it is correct standard this

plying respond wholly two works that the

clear a customer for

differing demands A place. the other in its buy would not a America, satire is not explicitly Appellee, sexual raucous of UNITED STATES Boy. Bugle of for the innocence substitute majori- agree with cannot I therefore VALENCIA, Appellant. William compet- songs were “premise ty’s works,” Maj. or that the sale Op. ing song would in- of defendants’ or rendition Appeals, of plaintiff’s of marketability with terfere song. “substitute majority implies that 9, 1981. Submitted Nov. person dirty lyrics” should 22, 1982. Decided Feb. calling the end result liability by “escape Opinion April society.” satire on the mores parody or defendants’ my Rehearing May In view the Denied Maj. Op. 185. language “dirty lyrics” or use of dis- personally find might that I

allusions wholly irrele- is or even offensive

tasteful us, which is wheth- issue before

vant to' the use, or obscene the defendants’

er as it the fair use doctrine under

permissible cannot, We years. evolved over

has copyright deciding a guise

under outlawing censors

issue, a board of act as por- Obscenity or performances.

X-rated More- in this case. play part no

nography or not

over, parody, whether permissible taste, pays for price an artist is the

good

But appellant had never argued that proof there was direct that Olga commu- nicated the informer’s inducements to him, and, no such proof direct appears in (Appellant’s the record. Brief 12.) at Appellant argues that marital rela- tionship and cohabitation of appellant and wife permit appellant inference that knew of the informer’s inducements. The proof district court held that of the marital relationship enough was not and that there proof was no other Government’s inducements been ap- had to communicated pellant. error,

Finding no we affirm. OAKES, Circuit (dissenting): In our amended we remanded for by judge whether there was sufficient evidence of direct communication between and permit William to question of induce- ment of go William to to jury. If not, there was the conviction should be was, affirmed. If there William should given be a new trial. 645 F.2d 1169 Cir. I do not Michaels, Seth City (The David New York feel that the district judge framing the Legal City, Aid New Society, York on issue as he properly did made the determi-

brief), appellant. for nation this court him. He Roth, Atty., Thomas G. Asst. U. New S. question framed the as to whether there City (Edward Korman, York R. New York evidence, was sufficient aside from the City, brief), appellee. on for mere that William and were mar- ried, for the Olga, infer that having Before and OAKES VAN GRAAFEI been induced Palacio to commit the LAND, Judges, TENNEY, Circuit Dis crime, recited this inducement to William Judge.* trict and that as a result he was induced to commit the crime. But required what was GRAAFEILAND, Judge: VAN Circuit remand, me, it seems to was not direct appellant’s original appeal, On United proof of communication—we could have de- Valencia, 645 F.2d 1158 that, cided there was no such direct 1980), this Court remanded to the district but, proof as appellant sug- record— court for a gested determination “whether there petition to us in his rehearing, was sufficient direct communi- rather an assessment of whether the rec- cation [appellant’s appel- between wife and ord, light when examined in of the estab- question of inducement law, lant] lished case revealed there was a [appellant] go jury.” to the at Id. sufficiently corroborated to re- inference 1169. The presentation district court held that there was quire of the entrapment de- appellant concedes jury. there was not. fense to the * York, sitting by designation. Of the District of Southern New out, And, 645 F.2d as we ALLEN, relationship to be only the marital David was S. evi- there was other Plaintiff-Appellee-Cross-Appellant, into account but

taken inferentially be could which it from dence communi- that there direct determined AGENCY, THE KATZ INC. EMPLOYEE *3 William. cation between PLAN, STOCK OWNERSHIP constantly pressed she was claimed Defendant-Appellant-Cross-Appellee, con- Palacio coerced Palacio be- apartment the Valencia stantly visited Agency, Inc., The Katz re- marital May. February Defendant-Cross-Appellee, tween lationship but Jones, T. T. Samuel Oliver Blackwell and legs necessity and of William had broken Greenwald, James as of The Trustees wife and in in the care of his spent time Agency, Employee Katz Inc. Own- Stock are other Palacio visited home which ership Plan, Defendants. court. evaluated the trial factors not Moreover, day testified that on Palacio sale, up she picked when before of Appeals, table, it told her was on sample, William present he and furthermore Argued Dec. And, speaking sale itself. evening of the April Decided “in subject entrapment, generally on raised, a question is deciding judge must consider the to the defendant.” light most favorable 296, 298 Anglada, 524 F.2d

United De- 1975), citing United States Cir.

har, 433 F.2d time to I remand second

Thus would we for the evaluation Nickerson he rather than is, was an it our first

made. As so much futility we said exercise in —what some codswallop though gained it has — Note, Entrapment

commentary support. Middlemen, Harv.

Through Unsuspecting n.34, n.39, 1127-28

L.Rev.

I dissent.