|||UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
972 F.2d 1429
|||decided: August 17, 1992.
|||ACUFF-ROSE MUSIC, INC., PLAINTIFF-APPELLANT,
LUTHER R. CAMPBELL, A/K/A LUKE SKYYWALKER; CHRISTOPHER WONGWON, A/K/A FRESH KID ICE; MARK ROSS, A/K/A BROTHER MARQUIS; DAVID HOBBS, A/K/A MR. MIXX; PROFESSIONALLY KNOWN AS 2 LIVE CREW; LUKE SKYYWALKER RECORDS, DEFENDANTS-APPELLEES.
|||On appeal from the United States District Court for the Middle District
of Tennessee. District No. 90-00524. Thomas A. Wiseman, Jr., District Judge.
|||For ACUFF-ROSE MUSIC, INC., Plaintiff - Appellant: E. Andrew Norwood,
Briefed, 615-259-3456, Francis J. Del Casino, Briefed, 615-259-3456, R.
Eddie Wayland, Argued & Briefed, 615-259-3456, Nora T. Cannon, Briefed,
615-259-3456, King & Ballow, 200 Fourth Avenue, N., Suite 1200 Noel
Place, Nashville, TN 37219.
|||For LUTHER R. CAMPBELL aka Luke Skyywalker, CHRISTOPHER WONGWON aka Fresh
Kid Ice, MARK ROSS aka Brother Marquis, DAVID HOBBS aka Mr. Mixx, 2 LIVE
CREW, LUKE SKYYWALKER RECORDS, Defendants - Appellees: Alan Mark Turk, Argued
& Briefed, 615-386-9991, Sanford R. Ross, 615-386-9991, 3310 West End
Avenue, Fourth Floor, Nashville, TN 37203.
|||Before: Nelson and Norris, Circuit Judges; and Joiner, Senior District
Judge.*fn* Joiner, Senior District Judge,
delivered the opinion of the court, in which Norris, Circuit Judge, joined.
Nelson, Circuit Judge, delivered a separate Dissenting opinion.
|||CHARLES W. JOINER, Senior District Judge. In this copyright case, plaintiff
appeals summary judgment granted to defendants. The district court held
that defendants' use of a song owned by plaintiff was a parody and therefore
constituted a fair use of copyrighted material under section 107 of the
Copyright Act, 17 U.S.C. § 101 et seq.
|||The 2 Live Crew, a rap music group, released for commercial distribution
a version of Acuff-Rose Music's copyrighted song, "Oh, Pretty Woman."
Acuff-Rose sued The 2 Live Crew, its individual members and its record company
for copyright infringement and alleged pendent state law claims of interference
with business relations and interference with prospective business advantage.
Defendants filed a motion for dismissal, which was treated as a motion for
summary judgment. The district court granted summary judgment, holding that
The 2 Live Crew had created a parody and that the parody was a non-infringing
"fair use" of the song as defined by section 107 of the 1976 Copyright
Act. 17 U.S.C. § 107. We reverse.
|||"Oh, Pretty Woman" was written and recorded by Roy Orbison and
William Dees in 1964. Rights to the song were assigned to Acuff-Rose that
same year, and Acuff-Rose registered for copyright protection. The song
has become a pop music standard, and Acuff-Rose has realized substantial
income from the licensing of "cover" recordings and other derivative
|||Luther Campbell, lead vocalist and song writer of The 2 Live Crew (2 Live
Crew), wrote a version of "Oh, Pretty Woman" in May 1989, which
he entitled "Pretty Woman." By affidavit, Campbell stated that
he had intended to create a parody as an attempt "through comical lyrics,
to satirize the original work . . . ." In June 1989, Campbell's company,
Luke Records (then doing business as Skyywalker Records), released "Pretty
Woman" as one of ten tracks on a collection entitled "As Clean
As They Wanna Be." The credits on the album*fn1
recognize Orbison and Dees as the writers of "Pretty Woman," and
Acuff-Rose as publisher of the song.
|||On July 5, 1989, following release of the album, Linda Fine, general manager
of Luke Records, wrote a letter to Gerald Tiefer of Opryland Music Group
(of which Acuff-Rose is a part) to "inform [Tiefer] of 'Two Live Crew's'
desire to do a parody" of "Oh, Pretty Woman."*fn2
Fine stressed that a parody was intended and that the popularity of 2 Live
Crew ensured substantial sales:
|||At the time of this writing the Group has a cut on the Billboard Rap Chart.
I have enclosed a copy of the lyrics, so that you may see their satirical
parody, very similar in vain [sic] to what Weird Al Yankovic and other satirical
artists are doing.
|||We intend that all credits (writer & publisher) show your complete
ownership of the song, and of course we intend to pay statutory rates.
|||Kindly keep in mind that we present this to you in a humorous sense and
in no way should this be construed as anything but a novelty record that
will be heard by hundreds of thousands of new listeners in their homes.
|||Fine included a cassette tape of 2 Live Crew's version of the song and
a lyric sheet for Tiefer to consider.
|||Tiefer responded tersely: "I am aware of the success enjoyed by 'The
2 Live Crews', but I must inform you that we cannot permit the use of a
parody of 'Oh, Pretty Woman.'" This refusal to grant a license did
not dissuade 2 Live Crew from continuing to sell "As Clean As They
|||Acuff-Rose brought suit in June 1990 and defendants responded by filing
a motion to dismiss, accompanied by affidavits, and sought to deposit $13,867.56.
This amount was apparently calculated after reference to statutory royalty
rates established by the Copyright Act, and reflected defendants' understanding
of what was owed to Acuff-Rose for use of the copyrighted song. The district
court ordered the funds deposited with the Clerk of Court.*fn3
Acuff-Rose responded with affidavits, which the district court relied upon
when granting summary judgment.
|||Among the affidavits presented, defendants presented that of Oscar Brand.*fn4
Brand, who has himself recorded a number of songs which he terms "parodies,"
stated his opinion that "both the words and the music of the 2 Live
Crew performance are classic parodies." Brand dissected the two songs
and found substantial similarities of musical structure between them. The
2 Live Crew version has the same 4/4 drum beat as the original and includes
a "very recognizable 'bass riff,'" which "is repeated eight
times. . . ." However, the 2 Live Crew version diverges from the original
by following the recognizable riff with "an atypical scraper -- a Latin
musical device, quite antithetic to the Orbison musical styling." Further,
in the 2 Live Crew version, the lead vocalist sings (or raps) "in the
key of B major, which, performed against the A major chorus, gives the song
a comic aspect."
|||Lyrically, Brand found "Pretty Woman" to be consistent with
a long tradition in the United States of making social commentary through
music. African-American rap music, Brand stated, uses parody as a form of
protest, and often substitutes new words to "make fun of the 'white-bread'
originals and the establishment . . . ." In "Pretty Woman,"
Brand concluded, "this anti-establishment singing group is trying to
show how bland and banal the Orbison song seems to them. It's just one of
many examples of their derisive approach to 'white-centered' popular music."
|||Acuff-Rose presented the affidavit of Ph.D. musicologist Earl V. Speilman.
Speilman also examined and compared the two songs and determined that there
is "a significant amount of similarity" between them. Speilman
identified five specific similarities, including the repetition of the recognizable
riff, which "may have actually been sampled or lifted and then incorporated
into the recording of 'Pretty Woman' as performed by The 2 Live Crew."
Speilman concluded that even a listener without musical training would readily
discern that "Pretty Woman" was modelled after "Oh, Pretty
|||The district court determined that there were no genuine issues of fact
material to the question of fair use in dispute, and that the case was therefore
suitable for summary judgment. Acuff-Rose Music, Inc. v. Campbell,
754 F. Supp. 1150,
1153 (M.D. Tenn. 1991). The court then analyzed the factors by which an
alleged infringing use is tested for fairness under section 107 of the Act.
Id. at 1154-59.*fn5
|||Following the district court's determination that "Pretty Woman"
was a parody, Acuff-Rose filed motions to distribute the funds deposited
by 2 Live Crew with the Clerk of Court, and sought reconsideration of the
fair use determination by introducing additional evidence on the question
of the impact of the parody upon the market value of the copyrighted original.*fn6
Based upon its determination of fair use, the district court granted summary
judgment and ordered the funds returned to 2 Live Crew.
|||We review the district court's grant of summary judgment de novo. EEOC
v. University of Detroit,
904 F.2d 331,
334 (6th Cir. 1990). Summary judgment is appropriate if the non-moving party
fails to establish a genuine issue of material fact on an element essential
to its case and on which it would bear the burden of proof at trial. Celotex
Corp. v. Catrett,
477 U.S. 317,
91 L. Ed. 2d 265
106 S. Ct. 2548
(1986). In making that determination, we view the evidence in the record
in the light most favorable to the non-moving party. Anderson v. Liberty
477 U.S. 242,
91 L. Ed. 2d 202
106 S. Ct. 2505
|||These general principles apply to the question of fair use, Maxtone-Graham
803 F.2d 1253,
1257-58 (2d Cir. 1986), cert. denied,
481 U.S. 1059,
95 L. Ed. 2d 856
107 S. Ct. 2201
(1987), which is a mixed question of law and fact. Matthews Conveyor Co.
v. Palmer Bee Co.,
135 F.2d 73,
85 (6th Cir. 1943); Harper & Row Publishers v. Nation Enter.,
471 U.S. 539,
85 L. Ed. 2d 588
105 S. Ct. 2218
(1985). In reviewing the district court's determination of fair use, when
that court has found facts sufficient to evaluate each of the factors enumerated
in section 107 of the Copyright Act, we "'need not remand for further
factfinding . . . [but] may conclude as a matter of law that [the challenged
use] does not qualify as a fair use of the copyrighted work.'" Harper
471 U.S. at 560
(quoting Pacific & S. Co. v. Duncan,
744 F.2d 1490,
1495 (11th Cir. 1984)). Our review of the record shows that no material
facts are in dispute. The parties dispute the ultimate Conclusions to be
drawn from the facts. These judgments are legal in nature.
|||Section 102(a) of the Copyright Act, adopted under the express authority
of Section 8 of the United States Constitution granting Congress the power
to give authors exclusive rights to their writings, protects "musical
works, including any accompanying words." 17 U.S.C. § 102(a)(2). Section
106 of the Act grants to the copyright holder a variety of exclusive rights
in the copyrighted work, including the right to "reproduce the copyrighted
work in copies or phonorecords," and to "prepare derivative works
based upon the copyrighted work." 17 U.S.C. § 106(1) and (2). The words
and music to plaintiff's song "Oh Pretty Woman" are subject to
these protections. However, plaintiff's exclusive rights are also subject
to the provisions of sections 107 through 118 of the Act, which create exemptions
and limitations on the owner's rights.
|||Section 107 of the Copyright Act states:
|||Notwithstanding the provisions of sections 106 and 106A, the fair use
of a copyrighted work, including such use by reproduction in copies or phonorecords
or by any other means specified by that section, for purposes such as criticism,
comment, news reporting, teaching (including multiple copies for classroom
use), scholarship, or research, is not an infringement of copyright. In
determining whether the use made of a work in any particular case is a fair
use the factors to be considered shall include --
|||(1) the purpose and character of the use, including whether such use is
of a commercial nature or is for nonprofit educational purposes;
|||(2) the nature of the copyrighted work;
|||(3) the amount and substantiality of the portion used in relation to the
copyrighted work as a whole; and
|||(4) the effect of the use upon the potential market for or value of the
|||17 U.S.C. § 107. In this case 2 Live Crew defends against a charge of
copyright infringement by arguing that "Pretty Woman" falls within
the exceptions spelled out in section 107.
|||In determining the scope and extent of the exceptions and limitations
to copyright protection carved out by section 107, it is important to focus
on the plain language of that section and the directions implicit in its
form. Section 107 takes from a copyright owner the exclusive rights to his
work insofar as a derivative, or allegedly infringing work, is a "fair
use" of the copyrighted work. Traditionally, fair use is defined as
"'a privilege in others than the owner of the copyright to use the
copyrighted material in a reasonable manner without his consent.'"
Harper & Row,
471 U.S. at 549
(quoting H. Ball, Law of Copyright and Literary Property, 260 (1944)). Fair
use is an "equitable rule of reason," Sony Corp. of America v.
Universal City Studios, Inc.,
464 U.S. 417,
78 L. Ed. 2d 574
104 S. Ct. 774
(1984), which is used in order to "avoid rigid application of the copyright
statute when, on occasion, it would stifle the very creativity which that
law is designed to foster." Stewart v. Abend,
495 U.S. 207,
109 L. Ed. 2d 184
110 S. Ct. 1750
(1990) (quoting Iowa State Univ. Research Found., Inc. v. American Broadcasting
621 F.2d 57,
60 (2d Cir 1980)). Fair use is the only exception to a copyright holder's
exclusive rights in his work, but section 107 explains that the overarching
concept of fair use embraces use of a copyrighted work for the purpose of
"criticism, comment, news reporting, teaching, scholarship, or research."
|||As the jurisprudence of section 107 has developed, the courts have found
that the section's recognition of "comment" and "criticism"
as species of fair use also, by practical extension of those terms, includes
the use of a copyrighted work (or a portion thereof) as a parody or satire
of that work. Rogers v. Koons,
960 F.2d 301,
309 (2d Cir. 1992). Indeed, the fair use formulation found in section 107
is a reflection of Congress's intent to codify the common law fair use doctrine,*fn7
which has long included parody. Harper & Row,
471 U.S. at 549;
see also Bloom & Hamlin v. Nixon, 125 F. 977 (C.C.E.D. Pa. 1903) (a
parody fair use involving vaudeville impersonations). Therefore, it is understandable
that both the parties and the district court focus on parody in their analyses
of fair use. However, because the text of section 107 lists specific fair
uses, we find that the term parody must be either subsumed within the statutory
terms "criticism" or "comment," or be an entirely separate
category of exception.
|||Unfortunately, the terminology of the fair use analysis has evolved in
such a way that the popular definition of parody and the statutory definition
of parody as a form of criticism have become somewhat confused. Popularly,
the term parody may be described as "when one artist, for comic effect
or social commentary, closely imitates the style of another artist and in
so doing creates a new artwork that makes ridiculous the style and expression
of the original." Rogers,
960 F.2d at 309-10.
This popular definition has been used on occasion as a synonym for that
which is necessary to create an exception to the exclusive rights in a copyrighted
work. This use, we find, creates confusion and should be avoided. Much of
entertainment involves parodies in the popular sense, but section 107 does
not direct the courts to conclude that all such parodies are fair uses.
For the purposes of this opinion, we will assume, as found by the district
court, that 2 Live Crew's song is a parody of Acuff-Rose's copyrighted song,
and proceed to determine whether the calculus of section 107 results in
a determination of fair use. That determination requires careful application
of the four statutory factors. Harper & Row,
471 U.S. at 549;
3 M. Nimmer, Nimmer on Copyright, § 13.05[A] at 13-82.1. Although the question
of fair use in the context of musical works is one of first impression in
this circuit, we do not write on a clean slate.
|||Purpose and Character of Use
|||We look first to the purpose and character of the use of Acuff-Rose's
song by 2 Live Crew. We accept the district court's Conclusion that the
purpose of the use was to parody the original.*fn8
We consider the character of the use separately. The use of a copyrighted
work primarily for commercial purposes has been held by the Supreme Court
to be presumptively unfair. Sony Corp.,
464 U.S. 417,
78 L. Ed. 2d 574
104 S. Ct. 774
(1984). "While commercial motivation and fair use can exist side by
side, the court may consider whether the alleged infringing use was primarily
for public benefit or for private commercial gain." MCA, Inc. v. Wilson,
677 F.2d 180,
182 (2d Cir. 1981). The Supreme Court explained that "the crux of the
profit/nonprofit distinction is not whether the sole motive of the use is
monetary gain, but whether the user stands to profit from exploitation of
the copyrighted material without paying the customary price." Harper
471 U.S. at 562.
|||In the instant case, the district court found, and we agree, that "2
Live Crew's song is included on a commercially distributed album sold for
the purpose of making a profit," and that "2 Live Crew's primary
goal in releasing 'As Clean As They Wanna Be' is to sell its music . . .
754 F. Supp. at 1154.
However, the district court saw the Supreme Court's holdings in Sony Corp.
and Harper & Row regarding the presumptively unfair nature of a commercial
purpose as "merely 'tending to weigh against a finding of fair use.'"
Id. (quoting Harper & Row,
471 U.S. at 562).
We agree that commercial purpose is not itself controlling on the issue
of fair use, but find that the district court placed insufficient emphasis
on the command of Harper & Row, wherein the Supreme Court expressly
reaffirmed its earlier holding that "'Every commercial use of copyrighted
material is presumptively an unfair exploitation of the monopoly privilege
that belongs to the owner of the copyright.'"
471 U.S. at 562
(quoting Sony Corp.,
464 U.S. at 451).
Therefore, in analyzing the purpose and character of 2 Live Crew's use of
the copyrighted song, the facts in the record require that we start from
the position that the use is unfair. We are asked to then consider whether
2 Live Crew met its burden to rebut the presumption by a defense, we note,
requiring the court to be convinced that the "parody does not unfairly
diminish the economic value of the original." Fisher v. Dees,
794 F.2d 432,
437 (9th Cir. 1986).
|||Although in this case we do not set aside the district court's Conclusion
that 2 Live Crew's song is a criticism in the nature of a parody in the
popular sense, we nevertheless find that the district court erred in the
process of determining that the criticism constituted a fair use of the
copyrighted work. We find that the admittedly commercial nature of the derivative
work -- the purpose of the work being no less important than its character
in the Act's formulation -- requires the Conclusion that the first factor
weighs against a finding of fair use. Sony Corp.,
464 U.S. at 449.
|||Nature of Copyrighted Work
|||The district court found that this factor weighed against a determination
of fair use, and we agree. Acuff-Rose,
754 F. Supp at 1155-56.
As a general rule, creative works -- literary works of fiction or artistic
works -- are afforded greater protection from the fair use determination
than are works of fact. Harper & Row,
471 U.S. at 563;
New Era Publications, Int'l v. Carol Publishing Group,
904 F.2d 152,
157 (2d Cir.), cert. denied, ___ U.S. ___,
111 S. Ct. 297,
112 L. Ed. 2d 251
(1990). The status of "Oh, Pretty Woman" as a creative work is
not contested. In determining whether this factor should weigh in favor
of the copyright holder we also ask whether the work "represented a
substantial investment of time and labor made in anticipation of financial
return." MCA, Inc.,
677 F.2d at 182.
The record amply supports a finding in favor of Acuff-Rose on this factor.
|||The third factor we consider is the amount and substantiality of the portion
of the copyrighted work used in the derivative work in relation to the copyrighted
work as a whole. As applied to alleged parodies, this factor has historically
turned on analysis of the "conjure up" test. Walt Disney Prods.
v. Air Pirates,
581 F.2d 751,
757 (9th Cir. 1978), cert. denied sub nom., O'Neill v. Walt Disney Prods.,
439 U.S. 1132,
99 S. Ct. 1054,
59 L. Ed. 2d 94
(1979). The test asks "whether the parodist has appropriated a greater
amount of the original work than is necessary to 'recall or conjure up'
the object of his satire." Id. The test describes a continuum of use,
and not only scrutinizes the extent of the taking, but the qualitative nature
of that taking. Harper & Row,
471 U.S. at 565.
A de minimis use, one that is meager and fragmentary, by definition fails
to conjure up the original and does not constitute an infringement. Elsmere,
482 F. Supp. at 744.
The 2 Live Crew, appropriately, does not attempt to characterize its use
of the copyrighted work as de minimis. Uses which depart from the de minimis
level may nevertheless be fair uses, but at some point on the continuum
this factor militates against a finding of fair use. Air Pirates,
581 F.2d at 757.
Parodies are generally allowed to use more of the copyrighted work and still
fall within the rubric of fair use than are other types of copying:
|||The concept of 'conjuring up' an original came into the copyright law
not as a limitation on how much of an original may be used, but as a recognition
that a parody frequently needs to be more than a fleeting evocation of an
original in order to make its humorous point. A parody is entitled at least
to 'conjure up' the original.
623 F.2d at 253,
n.1 (citation omitted).
|||The district court, having found that 2 Live Crew created a parody in
the popular sense, applied the conjure up test. The amount of the original
work which is appropriated is a factual issue, but the question whether
the taking is excessive under the circumstances is one of law. Fisher,
794 F.2d at 438,
|||The district court, operating on the assumption that "Pretty Woman"
is a parody, concluded: "In view of the fact that the medium is a song,
its purpose is parody, and the relative brevity of the copying, it appropriates
no more from the original than is necessary to accomplish reasonably its
parodic purpose." Acuff-Rose,
754 F. Supp. at 1157.
Clearly, the court was using the term parody in its popular sense. While
it may not be inappropriate to find that no more was taken than necessary,
the copying was qualitatively substantial. Both of defendants' affiants
stated that 2 Live Crew's version tracks the music and meter of the original.
These opinions were intended to demonstrate that the new song is a parody.
However, these opinions point out the substantiality of copying. Near verbatim
taking of the music and meter of a copyrighted work without the creation
of a parody is excessive taking. See MCA, Inc.,
677 F.2d at 183-85.
Most importantly, defendants' affiants stated that the song is built upon
the recognizable bass or guitar riff of the original by repeating that riff
eight times. Acuff-Rose's musicologist stated that the riff was probably
sampled from the original, that is, simply recorded verbatim and then mixed
with 2 Live Crew's additions. "The fact that a substantial portion
of the infringing work was copied verbatim is evidence of the qualitative
value of the copied material, both to the originator and to the plagiarist
who seeks to profit from marketing someone else's copyrighted expression."
Harper & Row,
471 U.S. at 565.
The qualitative degree of the copying is even more critical than the quantitative,
and we ask what degree of the essence of the original is copied in relation
to its whole. See Salinger v. Random House, Inc.,
811 F.2d 90,
98 (2d Cir.), reh'g denied,
818 F.2d 252,
484 U.S. 890,
98 L. Ed. 2d 177
108 S. Ct. 213
(1987). We conclude that taking the heart of the original and making it
the heart of a new work was to purloin a substantial portion of the essence
of the original. The facts as developed under this factor, "the amount
and substantiality of the portion used in relation to the copyrighted work
as a whole" cannot be used in any way to support a finding of fair
|||Effect on Potential Market
|||This factor has been characterized as "undoubtedly the single most
important element of fair use." Harper & Row,
471 U.S. at 566;
see also Stewart,
495 U.S. at 238.
This factor requires that a balance be struck "between the benefit
gained by the copyright owner when the copying is found an unfair use and
the benefit gained by the public when the use is held to be fair."
960 F.2d at 311.
To demonstrate that the balance weighs in favor of a finding of no fair
|||Actual present harm need not be shown; such a requirement would leave
the copyright holder with no defense against predictable damage. Nor is
it necessary to show with certainty that future harm will result. What is
necessary is a showing by a preponderance of the evidence that some meaningful
likelihood of future harm exists. If the intended use is for commercial
gain, that likelihood may be presumed. But if it is for a noncommercial
purpose, the likelihood must be demonstrated.
464 U.S. at 451
(emphasis in original). The focus is on potential harm, and the "inquiry
must take account not only of harm to the original but also of harm to the
market for derivative works." Harper & Row,
471 U.S. at 568.
|||In the instant case, the use of the copyrighted work is wholly commercial,
so that we presume that a likelihood of future harm to Acuff-Rose exists.
960 F.2d at 312
(the court holding that "there is simply nothing in the record to support
a view that [defendant] produced [the derivative art work] for anything
other than sale as high-priced art. Hence, the likelihood of future harm
to [plaintiff's] photograph is presumed, and plaintiff's market for his
work has been prejudiced").
|||Having determined that 2 Live Crew created a parody, the district court
refused to indulge the presumption and concluded that "it is extremely
unlikely that 2 Live Crew's song could adversely affect the market for the
original" because the "intended audience for the two songs is
entirely different." Acuff-Rose,
754 F. Supp. at 1158.
In reaching this Conclusion, the district court largely relied on the affidavit
of Krasilovsky who stated, in part: "I cannot see how it [the new work]
can affect the sales or popularity of the Orbison song, except to stimulate
interest in the original." Id. Although we have already determined
that harm for purposes of the fair use analysis has been established by
the presumption attaching to commercial uses, we note that inquiry under
the fourth statutory factor not only considers harm to the market for the
original but harm to the market for derivative works as well. Id. This formulation
was arrived at by Professor Nimmer, who provided an example relied upon
by the Rogers court: "[A] movie adaptation is made of a book. Even
though the movie may boost book sales, it is an unfair use because of the
effect on the potential sale of adaptation rights." Rogers,
960 F.2d at 312
(citing 3 Nimmer, § 13.05B). Krasilovsky's statement is irrelevant as to
the fourth statutory factor. The record on this factor does not support
a finding of fair use.
|||Three of the factors set out in the statute weigh against a finding of
fair use. One is, at best, neutral. In dealing with uses popularly termed
parodies, the factors involving the commercial nature of the use and the
damage to the defendant are of particular significance. It is likely, for
example, that an identical use of the copyrighted work in this case at a
private gathering on a not-for-profit basis would be a fair use. It is the
blatantly commercial purpose of the derivative work that prevents this parody
from being a fair use.
|||We conclude that the district court erred in granting summary judgment
to defendants. The four factors set forth in section 107 of the Act support
the Conclusion that 2 Live Crew's use of Acuff-Rose's copyrighted song was
not a fair use. We REVERSE and REMAND for proceedings consistent with this
|||REVERSED and REMANDED.
|||DAVID A. NELSON, Circuit Judge, Dissenting. A Second Circuit panel that
included both of the cousins Hand once called the "fair use" issue
"the most troublesome in the whole law of copyright." Dellar v.
Samuel Goldwyn, Inc.,
104 F.2d 661,
662 (2d Cir. 1939). It has been said, indeed, that the fair use doctrine
"is so flexible as virtually to defy definition." Time, Inc. v.
Bernard Geis Assocs.,
293 F. Supp. 130,
144 (S.D.N.Y. 1968).
|||Perhaps the most troublesome fair use issue of all is the question of
whether a particular parody constitutes fair use of a copyrighted original.
The parody cases appear to be in hopeless conflict. Compare, for example,
Loew's, Inc. v. Columbia Broadcasting System,
131 F. Supp. 165
(S.D. Cal. 1955), aff'd sub nom. Benny v. Loew's, Inc.,
239 F.2d 532
(9th Cir. 1956), aff'd by an equally divided court,
356 U.S. 43,
78 S. Ct. 667,
2 L. Ed. 2d 583
(1958) (Jack Benny's parody of the motion picture "Gaslight" held
not to be fair use of the original), with Berlin v. E. C. Publications,
329 F.2d 541
(2d Cir.), cert. denied,
379 U.S. 822,
13 L. Ed. 2d 33
85 S. Ct. 46
(1964) (Mad Magazine parodies of Irving Berlin songs held to be fair use).*fn1
Cf. Columbia Pictures Corp. v. National Broadcasting Co.,
137 F. Supp. 348
(S.D. Cal. 1955), where the same district Judge who rejected the fair use
defense for Jack Benny's parody of "Gaslight" accepted the defense
for a Sid Caesar parody of "From Here to Eternity." In sum, whether
a particular parody is entitled to the protection of the fair use doctrine
is a question likely to be dealt with by lower courts in much the same way
that the Supreme Court deals with more than a few questions of constitutional
law; we think we know fair use when we see it, even if we cannot do a very
good job of relating what we see (or do not see) to the governing text.
|||The text that is pertinent here is statutory, not constitutional.*fn2
Where parody is concerned, however, the guidance provided by the statute
is at least as Delphic as that sometimes provided by the Constitution. The
Copyright Act says that "the fair use of a copyrighted work . . . for
purposes such as criticism, comment . . . scholarship or research, is not
an infringement of copyright." 17 U.S.C. § 107 (emphasis supplied).
(The statute itself tells us that the words "such as" mean what
they say and "are illustrative and not limitative." 17 U.S.C.
§ 101.) The statute then goes on to list four factors that shall be "included"
among the factors considered by a court in determining a question of fair
use: "In determining whether the use made of a work in any particular
case is a fair use the factors to be considered shall include [the four
factors.]" Section 107 (emphasis supplied). Here again, the list provided
by Congress is "nonexclusive," to borrow the term used in Harper
& Row, Publishers, Inc. v. Nation Enterprises,
471 U.S. 539,
85 L. Ed. 2d 588
105 S. Ct. 2218
(1985); the court is free to consider any other factors that may be relevant.
|||Where we are dealing with parody, as I shall suggest, unenumerated factors
may have no less relevance than the four set forth in the statute -- and
the statutory factors are likely to have a somewhat different impact on
our deliberations than they would in a non-parody situation. Before turning
to these matters, however, I think it would be helpful to consider what
it is we are talking about when we speak of "parody."
|||The etymology of the word has direct relevance to this case. The term
comes from the Greek parodeia, meaning "a song sung alongside another."*fn3
The musical parody is thus the very archetype of the genre.
|||One of the best definitions I have come across is the following, which
appears in a prize-winning student essay:
|||"A parody is a work that transforms all or a significant part of
an original work of authorship into a derivative work by distorting it or
closely imitating it, for comic [or, I would add, for satiric] effect, in
a manner such that both the original work of authorship and the independent
effort of the parodist are recognizable." Clemmons, "Author v.
Parodist: Striking a Compromise," ASCAP Copyright Law Symposium No.
33 (1987) at 101.*fn4
|||Some authorities go on to suggest that if the derivative work is to be
treated as true parody, it must do more than achieve a comic effect: "It
must also make some critical comment or statement about the original work
which reflects the original perspective of the parodist -- thereby giving
the parody social value beyond its entertainment function." Metro-Goldwyn-Mayer
v. Showcase Atlanta Cooperative Productions, Inc.,
479 F. Supp. 351,
357 (N.D. Ga. 1979); New Line Cinema Corp. v. Bertlesman Music Group, Inc.,
693 F. Supp. 1517,
1525 (S.D.N.Y. 1988). See also Faaland, "Parody and Fair Use: The Critical
Question," 57 Wash. L. Rev. 163 (1981); Bisceglia, "Parody and
Copyright Protection: Turning the Balancing Act into a Juggling Act,"
ASCAP Copyright Law Symposium No. 34, (1987). But whether or not a derivative
work must "criticize" the original, I am not sure that I understand
the reservations my colleagues on the panel have expressed in this case
about accepting the district court's Conclusion that 2 Live Crew's "Pretty
Woman" is in fact a parody of the Acuff-Rose original. Under anyone's
definition, it seems to me, the 2 Live Crew song is a quintessential parody.
|||The Second Circuit faced a similar definitional question in Berlin v.
E.C. Publications Inc.,
329 F.2d 541
(2d Cir.), cert. denied,
379 U.S. 822,
13 L. Ed. 2d 33
85 S. Ct. 46
(1964). One of the Irving Berlin pieces on which the Mad Magazine people
had worked their peculiar magic was the song "A Pretty Girl is Like
a Melody." (Messrs. Orbison and Dees are obviously not the first tunesmiths
to have turned their attention to a comely female.) The defendants, in the
words of the court,
|||"transformed the plaintiffs' 'A Pretty Girl Is Like a Melody,' into
'Louella Schwartz Describes Her Malady'; what was originally a tribute to
feminine beauty became a burlesque of a feminine hypochondriac troubled
with sleeplessness and a propensity to tell the world of her plight."
Id. at 543.
|||This was "parody," the Second Circuit said -- and it was parody
that constituted fair use of Irving Berlin's original work:
|||"For, as a general proposition, we believe that parody and satire
are deserving of substantial freedom -- both as entertainment and as a form
of social and literary criticism. As the readers of Cervantes' 'Don Quixote'
and Swift's 'Gulliver's Travels,' or the parodies of a modern master such
as Max Beerbohm well know, many a true word is indeed spoken in jest."
Id. at 545.
|||In Fisher v. Dees,
794 F.2d 432,
434 (9th Cir. 1986), similarly, the Ninth Circuit had occasion to analyze
a pair of songs about women named "Sunny" or "Sonny."
The first piece, recorded in the 1950s by Johnny Mathis, was entitled "When
Sunny Gets Blue." The second, released in 1985 under the title "When
Sonny Sniffs Glue," copied the first six bars (the recognizable main
theme) of the original song's 38 bars. The derivative work transformed the
original opening lyrics -- "When Sunny gets blue, her eyes get gray
and cloudy, then the rain begins to fall" -- into "When Sonny
sniffs glue, her eyes get red and bulgy, then her hair begins to fall."
Id. at 434. After listening to tapes of both songs, the Ninth Circuit panel
had no difficulty at all in rejecting an argument that "the so-called
parody is not actually a parody, or at least is not a parody of the composer's
song." Id. at 436. Said the court,
|||"Although we have no illusions of musical expertise, it was clear
to us that Dees's version was intended to poke fun at the composers' song,
and at Mr. Mathis's rather singular vocal range. We reject the notion that
the song was used merely as a vehicle to achieve a comedic objective unrelated
to the song, its place and time." Id.
|||Like the Second Circuit panel in Berlin, the Fisher court affirmed a finding
that the parody was entitled to fair use protection as a matter of law.
Id. at 440.
|||I myself have no more "illusions of musical expertise" than
did the members of the court that decided Fisher v. Dees. After listening,
however, to Exhibits D and E, the tapes of the two "Pretty Woman"
songs, I am satisfied that the 2 Live Crew version both imitates and distorts
the original work for comic or satiric effect, and does so in such a way
that both the original work and the work of the parodist are readily recognizable.
The parody (done in an African-American dialect) was clearly intended to
ridicule the white-bread original -- and if a higher criticism is necessary
to qualify the derivative work as true parody, such criticism is readily
|||The affidavit of Oscar Brand explains, as Judge Joiner has noted, that
"this anti-establishment singing group [2 Live Crew] is trying to show
how bland and banal the Orbison song seems to them." The district court
accepted Brand's explanation.
754 F. Supp. at 1155.
So do I. Whether one likes the original or not -- and the maxim " de
gustibus non est disputandum " comes to mind here -- the original is
quite clearly being held up to criticism by 2 Live Crew.
|||Consider the plot, if one may call it that, of the original work. A lonely
man with a strangely nasal voice sees a pretty woman (name unknown) walking
down the street. The man speculates on whether the woman is lonely too.
Apostrophizing her in his mind, he urges her to stop and talk and give him
a smile and say she will stay with him and be his that night. The woman
walks on by, and the man resigns himself to going home alone. Before he
leaves, however, he sees the woman walking back to him. End of story.
|||This little vignette is intended, I think, to be sort of sweet. While
it is certainly suggestive, it is also, by the standards of its time, "romantic"
rather than indelicate. The singer evokes a sexual theme in his soliloquy,
but then leaves the realization of his desire to the listener's imagination.
|||The parody by 2 Live Crew is much more explicit, and it reminds us that
sexual congress with nameless streetwalkers is not necessarily the stuff
of romance and is not necessarily without its consequences. The singers
(there are several) have the same thing on their minds as did the lonely
man with the nasal voice, but here there is no hint of wine and roses. The
2 Live Crew singers -- randy misogynists, not lonely Sir Lancelots -- raucously
address a "big hairy woman" and her "bald-headed friend,"
one or both of whom are urged to "let the boys jump in." One singer
chides a woman (the big hairy one, I think) for having cheated on him ("Two
timin' woman/You's out with my boy last night"). In the end, this cloud
proves to have what the singer sees as a silver lining:
|||"Two timin' woman/That takes a load off my mind Two timin' woman/Now
I know the baby ain't mine."
|||This, I should say, is "criticism" with a vengeance -- and the
thematic relationship to the original is obvious. The relationship between
the copyrighted song and the parody is every bit as patent here as was the
corresponding relationship between the songs considered by the courts in
Elsmere Music, Inc. v. National Broadcasting Co.,
482 F. Supp. 741
(S.D.N.Y. 1980), aff'd
623 F.2d 252
(2d Cir. 1980). That case involved an oft-repeated advertising jingle known
as "I Love New York" and a Saturday Night Live take-off entitled
"I Love Sodom." The parody was held to constitute a fair use of
the original. The statutory factors, in my view, fully support a corresponding
result in the instant case.
|||The first of the factors that we must consider is this:
|||"(1) the purpose and character of the use, including whether such
use is of a commercial nature or is for nonprofit educational purposes.
. . ."
|||In the case before us, of course, the purpose is parody and the character
is commercial. Does the mere fact that the parodists hoped to make money
mean that their use of the original work is presumptively unfair? I am by
no means convinced that the Supreme Court would so hold -- and any such
presumption would be readily rebuttable in any event.
|||It is true that in the Betamax case, Sony Corp. v. Universal City Studios,
464 U.S. 417,
78 L. Ed. 2d 574
104 S. Ct. 774
(1984), the Court made the broad statement that "every commercial use
of copyrighted material is presumptively an unfair exploitation of the monopoly
privilege that belongs to the owner of the copyright. . . ." It is
also true that this statement was quoted with approval in Harper & Row,
471 U.S. at 562.
But both of those cases involved mechanical copying, literally or figuratively,
without alteration of the copied material.
|||There is a difference, obviously, between copying and caricaturizing.
By calling into being a new and transformed work, the caricaturist exercises
a type of creativity that is foreign to the work of the copyist. And the
creative work of the caricaturist is surely more valuable than the reproductive
work of the copyist. Thus it has been suggested that the presumption of
unfairness in cases of commercial exploitation "is sensible and appropriate
only when applied to commercial reproductive uses. . . ." Note, "The
Parody Defense to Copyright Infringement: Productive Fair Use After Betamax,"
97 Harv. L. Rev. 1395, 1408 (1984).
|||An illustration may help. W.S. Gilbert and Sir Arthur Sullivan created
comic operas that are among the most commercially successful of all time.
Gilbert and Sullivan certainly cannot be said to have had "nonprofit
educational purposes" in mind when they wrote such a work as Princess
Ida, one of their minor masterpieces. Princess Ida was, in Gilbert's words,
"a respectful operatic perversion" of "The Princess,"
a lengthy poem by Tennyson. Would the world not be a poorer place if Lord
Tennyson could have stilled the voice of W.S. Gilbert merely because Gilbert's
purposes included the making of money? For anyone who loves Gilbert and
Sullivan -- and their number is legion -- the question answers itself.
|||Similarly, I think, the world would be the poorer if the holders of the
copyright on "I Love New York" had been allowed to block the Saturday
Night Live rendition of "I Love Sodom." "In today's world
of often unrelieved solemnity," as the Second Circuit panel remarked
in affirming the judgment in favor of Saturday Night Live, "copyright
law should be hospitable to the humor of parody. . . ." Elsmere Music
623 F.2d at 253.
|||We should almost certainly be hospitable to the humor of parody if we
allowed ourselves to be guided, as the Supreme Court was guided in the Betamax
case, "by Justice Stewart's exposition of the correct approach to the
ambiguities in the law of copyright." Sony,
464 U.S. at 431.
The cause that is ultimately to be served, Justice Stewart observed in Twentieth
Century Music Corp. v. Aiken,
422 U.S. 151,
45 L. Ed. 2d 84
95 S. Ct. 2040
(1975), is "the cause of promoting broad public availability of literature,
music and other arts." What Justice Stewart called the "ultimate
aim" of copyright law is "to stimulate artistic creativity for
the general public good." Id. (footnote omitted). If we keep this ultimate
aim in mind, it seems to me, we are not likely to conclude that parody for
profit is presumptively "unfair."
|||The second statutory factor to be considered is
|||"(2) the nature of the copyrighted work. . . ."
|||The pertinent data in this connection are that Orbison and Dees published
"Oh, Pretty Woman" long before the alleged infringement occurred,
and that theirs is a work of the imagination rather than a piece of historical
|||That the original song had long since been published is a factor which
works in favor of the 2 Live Crew defendants. See Harper & Row,
471 U.S. at 564,
where the Supreme Court declared that "the scope of fair use is narrower
with respect to unpublished works." The fact that "Oh, Pretty
Woman" is a creative work might tend to offset the publication factor,
perhaps, if the work were not being used for the purpose of parody. But
parody routinely sets its sights on the fictive as opposed to the factual.
If, as the Second Circuit insists, "parody and satire are deserving
of substantial freedom," Berlin,
329 F.2d at 545,
it would make no sense at all to penalize the parodist for taking as his
subject precisely the sort of work that has been grist for parodists' mills
for the last two and a half millennia.
|||The third statutory factor is a somewhat problematical one, where parody
|||"(3) the amount and substantiality of the portion used in relation
to the copyrighted work as a whole. . . ."
|||The "portion used" test is problematical in this context because
parody cannot be parody unless it allows the original work to shine through
in a form which, while distorted, is recognizable. "Parody by its nature
demands close imitation," Bisceglia, "Parody and Copyright Protection,"
ASCAP Copyright Law Symposium No. 34 at 17; substantial usage is thus almost
|||The Ninth Circuit has held that the fair use defense must fail when the
purported parodists' copying "is virtually complete or almost verbatim."
Walt Disney Productions v. Air Pirates,
581 F.2d 751,
756 (9th Cir. 1978), cert. denied,
439 U.S. 1132,
99 S. Ct. 1054,
59 L. Ed. 2d 94
(1979). I have no quarrel with this formulation; near-verbatim copying is
closer to plagiarism than it is to parody. But neither the music nor the
lyrics of 2 Live Crew's "Pretty Woman" can fairly be said to constitute
near-verbatim copying of the Orbison and Dees original.*fn5
|||"At the very least," the Second Circuit has said, a parody will
pass muster under the "portion used" factor "where the parodist
does not appropriate a greater amount of the original work than is necessary
to 'recall or conjure up' the object of his satire. . . ." Berlin,
329 F.2d at 545.
Saturday Night Live's "I Love Sodom" was held to pass the "conjure
up" test,*fn6 and 2 Live Crew's
"Pretty Woman" does not appear to have appropriated more of the
original on which it was based than did "I Love Sodom."
|||The district court (Wiseman, J.) made these observations about the amount
and substantiality of the mimicry in the 2 Live Crew song:
|||"In this case, 2 Live Crew has not mimicked so much of 'Oh, Pretty
Woman' that it runs afoul of the substantiality factor. Notable aspects
of the original song are plainly present in 2 Live Crew's version but, unlike
Air Pirates, this is not a case of virtually complete or verbatim copying.
Rather this case falls in the realm of parodies envisioned by Fisher and
Berlin. In view of the fact that the medium is a song, its purpose is parody,
and the relative brevity of the copying, it appropriates no more from the
original than is necessary to accomplish reasonably its parodic purpose.
794 F.2d at 439."
754 F. Supp. at 1157.
|||I cannot improve on Judge Wiseman's analysis of the substantiality factor.
|||The last of the statutory factors is this:
|||"(4) the effect of the use upon the potential market for or value
of the copyrighted work."
|||To me, at least, it seems as clear in this case as it did to the Second
Circuit in Berlin that "the parody has neither the intent nor the effect
of fulfilling the demand for the original. . . ."
329 F.2d at 545.
|||The affidavit of Oscar Brand says that
|||"Parodies have never interfered with the popularity of the original.
* * * The sales graph of 'Hello, Dolly' didn't change when it became 'Hello,
Lyndon,' and 'Hello, Nixon.' Hundreds of popular songs have been 'covered'
by parody performances and recordings without altering their popular appeal
or interfering with their sales."
|||Although Brand's assertion that parodies have "never" interfered
with the popularity of the original strikes me as dubious, there has been
no showing of any such interference here.*fn7
Brand -- who is probably on firmer ground when he sticks to the specifics
of this case -- explains that the audiences for the two songs are quite
|||"There is no question in my mind that the song "Oh, Pretty Woman"
by Roy Orbison and William Dees was intended for Mr. Orbison's country music
audience and middle-America.
|||[ ] On the other hand, 2 Live Crew's version[ ], which is unquestionably
a comic parody, is aimed at the large black populace which used to buy what
was once called 'race' records. The group's popularity is intense among
the disaffected, definitely not the audience for the Orbison song. I cannot
see how it can affect the sales or popularity of the Orbison song, except
to stimulate interest in the original."
|||Brand's analysis of the market stands unrefuted. One month after Brand
gave his affidavit, the plaintiff's Director of Licensing, Gerald Tiefer,
executed an affidavit in which there is no attempt to deny that the two
songs are aimed at different markets.*fn8
Mr. Tiefer does suggest, however, that the 2 Live Crew parody could impair
the value of the plaintiff's right to grant licenses to parodists. And Mr.
Jerry Flowers, Executive Director of Publishing for the plaintiff's parent
corporation, says in an affidavit that the licensing of parodies of established
hit songs has become extremely lucrative.
|||Judge Joiner invites our attention, in this connection, to Rogers v. Koons,
960 F.2d 301,
312 (2d Cir. 1992), where the Second Circuit observed that "the inquiry
considers not only harm to the market for the original [work], but also
harm to the market for derivative works." In a passage a portion of
which was quoted with approval in Harper & Row,
471 U.S. at 568,
similarly, the Nimmer treatise says that "if the defendant's work adversely
affects the value of any of the rights of the copyrighted work . . . [including
the right to license derivative works,] the use is not fair even if the
rights thus affected have not as yet been exercised by the plaintiff."
3 Nimmer on Copyrights, § 13.05[B] at 13-88.19 (1992) (citations omitted).
|||Nimmer, however, is not discussing parody here; the quoted passage deals
with a motion picture hypothetically adapted from a copyrighted novel. And
neither Rogers v. Koons nor Harper & Row involved parody either. The
former was a case in which a sculpture had been copied with great fidelity
from a photograph -- the artisans who produced the sculpture were told that
the " work must be just like photo,"
960 F.2d at 305
-- and the latter was a case in which quotations from the unpublished manuscript
of President Ford's autobiography were lifted by the defendant verbatim.
|||Parody, again, is different. It transforms as it copies, and it may well
savage the original work in the process. In the past, at least, copyright
holders have not been overly enthusiastic about agreeing to see their works
parodied -- and the law itself has licensed parodists, much as the law has
given license to book reviewers, drama critics, and other commentators.
Ours is a commercial age, to be sure, and consensual "parody licenses"
may be more common now than they used to be. I confess that I am still uneasy,
however, about the prospect of the courts turning copyright holders into
censors of parody. Neither the history of the fair use doctrine nor the
four factors enumerated in the Copyright Act compel such a result. "Permissible
parody, whether or not in good taste, is the price an artist pays for success.
. . ." MCA, Inc. v. Wilson,
677 F.2d 180,
191 (2d Cir. 1981) (Mansfield, J., Dissenting).
|||I said earlier in this opinion that there may be factors which, although
not enumerated in the Copyright Act, merit consideration by the courts in
determining when parody constitutes fair use. I shall mention only one such
factor -- one foreshadowed in what has already been said. It is this: the
social value of the parody as criticism.
|||In the case at bar, it seems to me, this factor militates rather strongly
in favor of affirmance of the district court's finding of fair use. The
2 Live Crew "Pretty Woman" is hopelessly vulgar, to be sure,*fn9
but we ought not let that fact conceal what may be the song's most significant
message -- for here the vulgarity, to paraphrase Marshall McLuhan, is the
message. The original work may not seem vulgar, at first blush, but the
2 Live Crew group are telling us, knowingly or unknowingly, that vulgar
is precisely what "Oh, Pretty Woman" is. Whether we agree or disagree,
this perception is not one we ought to suppress.
|||*fn* Honorable Charles W. Joiner,
United States District Court for the Eastern District of Michigan, sitting
|||*fn1 We use the term "album"
generically; "As Clean As They Wanna Be" was also released on
compact disc and cassette tape.
|||*fn2 The parties dispute the above chronology.
Defendants contend that Campbell intended all along to create a comic song
and appropriately sought the permission of Acuff-Rose prior to doing so.
Acuff-Rose sees Fine's letter as a effort to create a revisionist history
of legitimacy for an act of piracy. The district court found that "As
Clean As They Wanna Be" was released on July 15, 1989, subsequent to
Fine's letter to Tiefer. Campbell's intent is not dispositive of the case,
but we note that this finding contradicts Campbell's affidavit. The only
support in the record for a July 15 release date is found in Acuff-Rose's
response to the motion for dismissal, in which counsel asserted a release
date "on or about July 15, 1989." Campbell's affidavit is a better
factual source than counsel's contention.
|||*fn3 At oral argument, counsel for 2
Live Crew stated that the deposit was a tactical mistake which should not
be construed as an admission that the group's song was something other than
a fair use parody. Our review of the record reveals confusion over the status
of "Pretty Woman" as either a "comic" effort, such as
those created by comic musician Weird Al Yankovic, or a "parody,"
which purports to deliver social commentary within a humorous framework.
Yankovic's works are licensed uses, not "fair uses" for which
a license is not required. This confusion on the part of 2 Live Crew adds
weight to Acuff-Rose's assertion that Campbell's intent to create a parody
was only formed after "Pretty Woman" was released.
|||*fn4 2 Live Crew also presented the
affidavit of M. William Krasilovsky, whose Conclusions and the reasons therefore
are much the same as Brand's.
|||*fn5 The district court also determined
that Acuff-Rose's pendent state law claims were preempted by section 301
of the Copyright Act. Acuff-Rose Music,
754 F. Supp. at 1159-60.
Acuff-Rose does not challenge this determination.
|||*fn6 Acuff-Rose also sought leave to
amend its complaint to allege violations of the Lanham Act. 15 U.S.C. §
1125(a). The district court denied the motion and Acuff-Rose does not allege
error in the denial.
|||*fn7 See, S. Rep. No. 94-473, 94th Cong.,
1st Sess. at 61-62 (1975); H.R. Rep. No. 94-1476, 94th Cong., 2d Sess. at
|||*fn8 We do so with considerable reservation,
as the district court's parody analysis does not, in our view, comport with
proper analysis of that term.
The district court compared the statement of the parties' affiants and
concluded: "Acuff-Rose may not like it, and 2 Live Crew may not have
created the best parody of the original, but nonetheless the facts convincingly
demonstrate that it is a parody." Acuff Rose,
754 F. Supp. at 1155.
The district court closely parsed the lyrics of the two songs, finding
that: "Although the parody starts out with the same lyrics as the
original, it quickly degenerates into a play on words, substituting predictable
lyrics with shocking ones." Id. 2 Live Crew contends that by way
of the "shocking" lyrics "Pretty Woman" was intended
to satirize the original work, as well as society at large. Our difficulty
with the district court's Conclusion that this intention was realized
is that, even accepting that "Pretty Woman" is a comment on
the banality of white-centered popular music, we cannot discern any parody
of the original song. Failing a direct comment on the original, there
can be no parody, as the "copied work must be, at least in part,
an object of the parody, otherwise there would be no need to conjure up
the original work." Rogers,
960 F.2d at 310
(citing MCA, Inc.,
677 F.2d at 185).
In the copyrighted song, the singer remarks on the beauty of a woman he
sees on the street. The singer is initially disappointed when the woman
rebuffs his advances and later exults when the woman appears to change
her mind. Campbell's lyrics involved women but aside from broadly evoking
the theme of the original in the opening line of the 2 Live Crew version:
"Pretty Woman -- Walkin' down the street, Pretty Woman -- Girl you
look so sweet," bear no discernible relationship to the original.
Instead, as Brand noted, the lyrics examine a series of women with unappealing
attributes: "Big Hairy Woman -- You need to shave that stuff, Big
Hairy Woman -- You know I bet it's tough, Big Hairy Woman -- All that
hair it ain't legit, 'Cause you look like 'cousin it,' Big Hairy Woman,"
or who are not faithful: "Two Timin' Woman -- Girl you know you ain't
right, Two Timin' Woman -- You's out with my boy last night, Two Timin'
Woman -- That takes a load off my mind, Two Timin' Woman -- Now I know
the baby ain't mine." In our opinion, this is not a new work which
makes ridiculous the style and expression of the original, although there
is plainly an element of the ridiculous to the new work. We cannot see
any thematic relationship between the copyrighted song and the alleged
parody. The mere fact that both songs have a woman as their central theme
is too tenuous a connection to be viewed as critical comment on the original.
We find instructive the holding in Elsmere v. National Broadcasting Co.,
482 F. Supp. 741
(S.D.N.Y. 1980), aff'd per curiam,
623 F.2d 252
(2d Cir. 1980). The Court of Appeals for the Second Circuit agreed with
the district court that the company of the television program "Saturday
Night Live" had performed a parody -- entitled "I Love Sodom"
-- of the then-widely known advertising jingle "I Love New York."
The new work cast the original image-polishing effort as ridiculous by
asserting that the effort to redeem New York City's image was futile.
It is this sort of direct comment, comment which is expressly and unambiguously
directed at the message of the original work, which constitutes a parody.
Similarly, the court in Rogers found that a sculpture based upon a copyrighted
photograph was not a parody regardless of the creator's alleged intention
to point out the banality of the copyrighted work. Rogers,
960 F.2d at 309-10.
The new work, the court found, could perhaps be seen as a critique of
materialistic society at large, but on its face the sculpture failed to
make critical comment regarding the original creative work. Id. We are
in agreement with the Rogers court that the term parody cannot be allowed
to assume too broad a definition, for if an "infringement of a copyrightable
expression could be justified as a fair use solely on the basis of the
infringer's claim to a higher or different artistic use . . . there would
be no practicable boundary to the fair use defense." Id. at 310.
|||*fn1 As Berlin points out,
329 F.2d at 544-45,
Loew 's has been widely criticized. Among the critics is no less a figure
than Professor (later Justice) Benjamin Kaplan. See Kaplan, An Unhurried
View of Copyright (1967) at 69. The Ninth Circuit has said that its Loew
's decision "was essentially repudiated by Congress's recognition of
parody in the notes to the Copyrights Act of 1976." Fisher v. Dees,
794 F.2d 432,
435 (9th Cir. 1986), citing 17 U.S.C.A § 107 Historical Note. (The Note
quotes House Report No. 94-1476 as listing "use in a parody of some
of the content of the work parodied" as among "the sort of activities
the courts might regard as fair use under the circumstances.")
|||*fn2 There are, to be sure, authorities
who would constitutionalize copyright law. Some would treat satire as sacrosanct
under the First Amendment. See, e.g., Goetsch, "Parody as Free Speech
-- The Replacement of the Fair Use Doctrine By First Amendment Protection,"
3 W. New Eng. L. Rev. 39 (1980). Others would accord constitutional protection
to any parody a limitation on which would, in the opinion of the Judge,
impede "the Progress of Science" as that phrase is used in the
Copyright Clause, Art. I, § 8 of the Constitution. See Bisceglia, "Parody
and Copyright Protection: Turning the Balancing Act Into a Juggling Act,"
ASCAP Copyright Law Symposium No. 34 (1987) at 23. As for me, I cannot work
up much enthusiasm for turning every copyright case into a mini-Marbury
5 U.S. 137,
2 L. Ed. 60
or New York Times Co. v. Sullivan,
376 U.S. 254,
84 S. Ct. 710,
11 L. Ed. 2d 686,
, (1964). The major role in determining how to promote the progress of science
has been given, after all, to Congress: "As the text of the Constitution
makes plain, it is Congress that has been assigned the task of defining
the scope of the limited monopoly that should be granted to authors or to
inventors. . . ." Sony Corp. v. Universal City Studios, Inc.,
464 U.S. 417,
78 L. Ed. 2d 574
104 S. Ct. 774
(1984). The Ninth Circuit has rejected out of hand the notion that the First
Amendment gives parodists a blanket protection from copyright infringement
actions. Fisher v. Dees,
794 F.2d 432,
434 n.2 (9th Cir. 1986).
|||*fn3 VII Encyclopedia Britannica (15th
ed. 1975) at 768. " Parodeia " joins the Greek words for "beside"
and "to sing" -- the roots of our prefix "para" and
our word for a lyric poem, "ode." Webster's New International
Dictionary (3d ed. 1961).
|||*fn4 See also Note, "The Parody
Defense to Copyright Infringement: Productive Fair Use After Betamax,"
97 Harv. L. Rev. 1395 (1984): "Parody, in its purest form, is the art
of creating a new literary, musical, or other artistic work that both mimics
and renders ludicrous the style and thought of an original." The examples
cited by the Harvard editors are Cervantes' Don Quixote (1614), Pope's The
Rape of the Lock (1712), and Austen's Northanger Abbey (1818), all of which
parodied then-popular literary genres. Judge Yankwich provides a much longer
list of well known parodies in his article "Parody and Burlesque in
the Law of Copyright," 33 Can. B. Rev. 1131 (1955). The art form goes
back at least as far as Aristophines, the famous comic dramatist of ancient
Greece, whose play The Frogs (405 B.C.) -- a work still performed today
-- spoofed the plays of Aeschylus and Euripides.
Parodies often outlast and outshine the works parodied. A good example
is Lewis Carroll's "You Are Old, Father William," a takeoff
on Southey's work "The Old Man's Comforts." The texts, which
are strikingly similar in form, may be read side-by-side in the appendix
to Bisceglia, "Parody and Copyright Protection: Turning the Balancing
Act into a Juggling Act," ASCAP Copyright Law Symposium No. 34 (1987)
|||*fn5 I recognize that the affidavit
of musicologist Earl Spielman refers to a "one measure guitar lick"
that "may have actually been sampled or lifted and then incorporated
into the recording of 'Pretty Woman' as performed by The 2 Live Crew."
But the Copyright Act "protects only those sound recordings 'fixed'
on or after February 15, 1972," Note, "Digital Sound Sampling,
Copyright and Publicity: Protecting Against the Electronic Appropriation
of Sounds," 87 Col. L. Rev. 1723, 1727-28 (1987), citing 17 U.S.C.
§ 301(c); Orbison and Dees recorded "Oh, Pretty Woman" in 1964.
It is arguable, moreover, that a "sampling" of no more than a
few notes should be governed by the maxim de minimis non curat lex. Id.
at 1735. Finally, the plaintiffs have not shown by a preponderance of the
evidence that any sampling really occurred here -- and to my untrained ear,
at least, it is obvious that most of the 2 Live Crew music was not lifted
electronically from the 1964 recording.
|||*fn6 The Second Circuit noted by way
of dictum in that case that "even more extensive use [than that necessary
to 'conjure up' the original] would still be fair use, provided the parody
builds upon the original, using the original as a known element of modern
culture and contributing something new for humorous effect or commentary."
623 F.2d at 253
n.1. Professor Nimmer's treatise asserts that "this went too far,"
adding that "the Second Circuit later drew back from this extreme.
. . ." 3 Nimmer on Copyright, § 13.03[f] at 13-90.9-.10 (1992), citing
Warner Bros., Inc. v. American Broadcasting Companies,
654 F.2d 204
(2d Cir. 1981), and MCA, Inc. v. Wilson,
677 F.2d 180
(2d Cir. 1981). I am by no means sure that the Elsmere dictum did go too
far, but it makes no difference in the case at bar; the 2 Live Crew song
passes the "conjure up" test in any event.
|||*fn7 Because parody is a special case,
moreover, a drop in the popularity of the original "Oh, Pretty Woman"
would be of doubtful relevance anyway. "We must accept the harsh truth
that parody may quite legitimately aim at garroting the original, destroying
it commercially as well as artistically." Kaplan, An Unhurried View
of Copyright, at 69.
|||*fn8 This case is thus different from
New Line Cinema Corp. v. Bertlesman Music Group,
693 F. Supp. 1517
(S.D.N.Y. 1988), where testimony "unequivocally established that the
songs 'Nightmare on My Street' and 'Are You Ready for Freddy?' are in direct
competition." Id. at 1528.
|||*fn9 Vulgarity, in practice, probably
cuts against acceptance of the parody defense. See MCA, Inc. v. Wilson,
677 F.2d 180,
185 (2d Cir. 1981), where the panel majority said this:
"We are not prepared to hold that a commercial composer can plagiarize
a competitor's copyrighted song, substitute dirty lyrics of his own, perform
it for commercial gain, and then escape liability by calling the end result
a parody or satire on the mores of society." MCA, Inc. v. Wilson,
677 F.2d 180,
185 (2d Cir. 1981). I have some sympathy for this attitude, particularly
where the parties really are "competitors;" be the lyrics of
the derivative work dirty or clean, it goes against the grain to let a
competitor reap where he has not sown. In the case at bar, however, there
has been no showing that the parties are competitors. The 2 Live Crew
song, moreover, is not just "a parody or satire on the mores of society"
-- it is a parody or satire on the mores of Orbison's Pretty Woman and
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