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The first court case establishing the permissibility of parody as “fair use” of copyrighted material was tried in 1903, involving a song from the musical spectacular The Wizard of Oz.   Having had great success with his children’s book The Wonderful Wizard of Oz, first published in 1900, L. Frank Baum sought to bring his story to the theater. The producer Fred R. Hamlin agreed to put on the show, although Baum’s original script was subsequently greatly altered by director Julian P. Mitchell, making it a pastiche of songs and comedy, with comely chorus girls and wonderful special effects, only loosely based on the original story.  (Baum agreed to all this.)  The Oz extravaganza premiered in 1902 in Chicago, and moved to Broadway in 1903, followed by a successful tour.

One of the love songs in the play, “Sammy”, became a sensation.  It was sung by the fetching actress Lotta Faust, who would single out a male member of the audience and embarrass him by singing it specifically to him.  Other theaters began to copy this technique.

Hamlin (the producer of The Wizard of Oz) and Sol Bloom (the writer of the song “Sammy”) sued the owners and managers of a rival theater company because their actress, Fay Templeton, imitated Lotta Faust singing “Sammy”.    [The case was Bloom & Hamlin v. Nixon et al. (No. 18, Circuit Court, E.D. Pennsylvania, 125 F. 977) . ]  In this case, Templeton only sang the chorus, rather than the entire song.  The court decided that this was permissible fair use, because the actress was not simply singing the song, but rather mimicking Lotta Faust, and the song (or part of it) was an essential part of the mimickry.

Lotta Faust

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