Petition for Writ of Certiorari — Campbell v. Acuff-Rose Music, Inc.

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October Term, 1992

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 THE 2 LIVE CREW;

LUKE SKY YWALKER RECORDS,

Petitioners,

vs.

ACUFF-ROSE MUSIC, INC.,

Respondent.

Petition for a Writ of Certiorari to the United States Court of

Appeals for the Sixth Circuit

PETITION FOR A WRIT OF CERTIORARI

ALAN MARK TURK

ALAN MARK TURK, ATTORNEY, P.C.

Attorney for Petitioners

200 Fourth Avenue, North

Suite 820

Nashville, Tennessee 37219

(615) 726-2999

3143

“Agee (800) 3 APPEAL + (800) 5 APPEAL + (800) BRIEF 21

ervices; inc.

—

QUESTIONS PRESENTED

1. Whether this Honcrable Court’s decision in Sony Corp. v.

Universal City Studios, Inc., 464 U.S. 417 (1984) and in Harper &

Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985)

effectively overruled prior decisions of the Court of Appeals for the

Second Circuit and the Court of Appeals for the Ninth Circuit by

implying that a commercial parody of an original work is

presumptively an unfair use even if the commercial parody is a

creative derivative work?

2. Whether the majority opinion of the Court of Appeals for

the Sixth Circuit erred in holding that the “commercial use”

presumption established by this Honorable Court in Sony Corp. v.

Universal City Studios, Inc., 464 U.S. 417 (1984), is not governed

by Rule 301 of the Federal Rules of Evidence?

3. Whether a creative derivative work, such as a musical

parody, despite its commercial purpose, can be afforded protection

under 17 U.S.C. § 107 because of its importance as a form of social

criticism?

4. Whether a copyright holder has a protected interest in the

potential market for parodies of his original work, even if the

original work does not compete with any existing parody of the

original work?

TABLE OF CONTENTS

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Reasons for Granting the Writ ................eee0e

Whether this Honorable Court’s decision in Sony

Corp. v. Universal City Studios, Inc., 464 U.S. 417

(1984) and in Harper & Row Publishers, Inc. v.

Nation Enterprises, 471 U.S. 539 (1985)

effectively overruled prior decisions of the Court

of Appeals for the Second Circuit and the Court of

Appeals for the Ninth Circuit by implying that a

commercial parody of an original work is

presumptively an unfair use even if the commercial

parody is a creative derivative work. ...........

Whether the majority opinion of the Court of

Appeals for the Sixth Circuit erred in holding that

the “commercial use” presumption established by

this Honorable Court in Sony Corp. v. Universal

Page

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iii

Contents

Page

City Studios, Inc., 464 U.S. 417 (1984), is not

governed by Rule 301 of the Federal Rules of

SEE A AMibn ont Shh} can cepele eeeinecedecs 15

Ill. Whether creative derivative work, such as a

musical parody, despite its commercial purpose,

can be afforded protection under 17 U.S.C. § 107

because of its importance as a form of social

IV. Whether a copyright holder has a protected interest

in the potential market for parodies of his original

work, even if the original work does not compete

with any existing parody of the original work. ... 21

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TABLE OF CITATIONS

Cases Cited:

Berlin v. EC Publications, Inc., 329 F.2d 541 (2nd Cir.

DE Gh de bRSGGENORE6e ddbercercedcescccccocs 8

Elsmere Music Inc. v. National Broadcasting Co., 623 F.2d

DTD Spb eceveccsecoonensceccecoce 8,20

Fisher v. Dees, 794 F.2d 432 (9th Cir. 1986) ........ 8,12, 13,24

Harper & Row Publishers, Inc. v. Nation Enterprises, 471

U.S. 539 (1985) ........0.eeee i, 6, 7,8, 9, 10, 11, 12, 13, 17

Hill v. Whalen, 220 F.359(S.D.N.Y. 1914) ............ 26

Contents

Page

In re Yoder Company, 758 F.2d 1114 (6th Cir. 1985) ..... 16

Pacific & Southern Co. v. Duncan, 74 F.2d 1490 (11th Cir.

1984), cert. denied, 471 U.S. 104(1985) ........... 17

Pillsbury Co. v. Milky Way Productions, Inc., 215 U.S.P.Q.

sR rt eee 22

Rosemont Enterprises, Inc. v. Random House, Inc., 366

PEE ciccccdstdusickenmsaecesce 27

Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417

GRD dh boadoaspcccscocecdetebecctte i,6,7,9, 12, 13, 15

University of Notre Dame v. Twentieth Century-Fox, 256

BR. Be SU SOE (IDES) 2c ccc ccccsccscccscccccccecs 23

Rules Cited:

Federal Rule of Civil Procedure 56 .................. 4,5

Federal Rule of Civil Procedure67 .................. 4

Federal Rule of Evidence 301 ...................- i, 15, 16,29

Supreme Court Rule 10.1(a) ...........ccccccccccces 2

Statutes Cited:

CT CSE bs wcvcdbécccot ce cudacesindl i, 2,8, 11, 14, 16

ST GSES Vi sevn npede dicbcks dees ckcubiSedbe 5

Howard, John Tasker, Our American Music: A

History From 1620 to the Present,

HLR. No. 94-1476, 94th Cong., 2d Sess. 66 (1976) (House

Repent, epeiated in [1976] U.S. Code Cong. & Admin.

Repost) 0... cc eeccccccccecceceessscecsccccees

Appendix A — Opinion of the United States Court of

Appeals for the Sixth Circuit Filed August 17, 1992

Appendix B — Memorandum Opinion and Order of the

Tennessee, Nashville Division ...........+.+++++:

Appendix D — Affidavit of Oscar Brand Sworn to July 31,

1990 with Exhibits ... 2.2.2... 6c cece ccc eececeees

Page

35a

57a

Contents

Page

Appendix E — Affidavit of Luther Campbell Sworn to

July 31, 1990 with Exhibits ...................... 79a

No.

In The

Supreme Court of the Anited States

October Term, 1992

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 THE 2 LIVE CREW; LUKE

SKYYWALKER RECORDS,

Petitioners,

vs.

ACUFF-ROSE MUSIC, INC.,

Respondent.

Petition for a Writ of Certiorari to the United States Court of

Appeals for the Sixth Circuit

PETITION FORA WRIT OF CERTIORARI

OPINIONS BELOW

The opinion of the district court is reported at 754 F. Supp.

1150 (Tenn. M.D. 1991) and is reproduced in Appendix B: App.

pp. 35a-56a. The opinion of the United States Court of Appeals for

the Sixth Circuit is reported at 972 F.2d 1429 (6th Cir. 1992), and is

reproduced in Appendix A: App. pp. 1a-34a.

STATEMENT OF JURISDICTION

The judgment of the United States Court of Appeals for the

Sixth Circuit was entered on August 17, 1992. Appendix A: App.

pp. 1a-34a. The order of the United States Court of Appeals for the

Sixth Circuit denying an en banc rehearing was entered on October

26, 1992. Jurisdiction of this Court is based on Rule 10.1(a) of the

Rules of the Supreme Court.

STATUTE INVOLVED

17 U.S.C. § 107 provides:

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

STATEMENT OF THE CASE

Roy Orbison and William Dees were the co-authors of an

original musical work entitled “Oh, Pretty Woman.” In 1964, Roy

Orbison and William Dees assigned their rights in “Oh, Pretty

Woman” to the Respondent. On August 26, 1964, the Respondent

registered “Oh, Pretty Woman” for copyright protection under the

The Petitioners, collectively known as The 2 Live Crew, are a

popular rap music group. n July 5, 1989, the Pctitioners, through

their general manager, Linda Fine, wrote Gary (sic. Gerry] Teifer

of Acuff-Rose Music, Inc., informing him that The 2 Live Crew

had written a parody of “Oh, Pretty Woman” entitled “Pretty

Woman.” Ms. Fine advised Acuff-Rose Music, Inc. that the

Petitioners intended to afford it, Mr. Dees, and Mr. Orbison all

credit evidencing their ownership and authorship of the song, “Oh,

Pretty Woman,” and that the Petitioners intended to pay the

statutory rate for the use of said song. Ms. Fine enclosed a copy of

the lyrics and a recording of the parody for his review. Appendix E:

Affidavit of Luther Campbell, Exhibit A, App. pp. 83a-84a. On

July 17, 1989, Gerry Teifer responded, in writing, to Ms. Fine’s

correspondence and stated that “I must inform you that we cannot

permit the use of parody of ‘Oh, Pretty Woman’.” Appendix E:

Affidavit of Luther Campbell, Exhibit B, App. p. 85a. The

Petitioners, over the objection of the Respondent, released on July

15, 1989, the album As Clean As They Wanna Be, including the

parody “Pretty Woman.”

On June 18, 1990, Acuff-Rose filed suit alleging that The 2

Live Crew willfully infringed and commercially exploited its

rights in the song “Oh, Pretty Woman” under the United States

and interfered with the Respondent’s prospective business

advantage. Appendix C: Complaint, App. pp. 57a-69a.' The

Petitioners, in response to the Complaint, filed a Motion to Dismiss

asserting that, in accordance with Rule 56 of the Federal Rules of

Civil Procedure, the Court should dismiss the Respondent's

Complaint. R. 3: Motion to Dismiss; R. 5: Memorandum; R. 17:

Supplemental Memorandum; Appendix D: Affidavit of Oscar

Brand, App. pp. 70a-78a; Appendix E: Affidavit of Luther

Campbell, App. pp. 79a-88a; Appendix F: Affidavit of M. William

Krasilovsky, App. pp. 89a-94a.

The Petitioners then moved in accordance with Rule 67 of the

Federal Rules of Civil Procedure to deposit with the trial court

certain funds, as if The 2 Live Crew’s version was a derivative

work of the Respondent’s copyrighted work and calculated the

amount deposited based upon the statutory mechanical rate under

the Copyright Act. R. 6: Motion to Deposit Funds. The trial court

granted the Petitioners’ Motion and the funds were interpled. The

trial court did not comment on the adequacy of the deposit made. R.

11: Order.

1. Attached as Exhibit D to the Complaint was an audio cassette of “Oh,

Pretty Woman” as recorded by Roy Orbison. Attached as Exhibit E to the

Complaint was an audio cassette of “Pretty Woman” as recorded by the

Petitioners. The Petitioners have lodged a copy of each audio cassette with this

Honorable Court, so that a comparison of the two songs can be made. Exhibit B

of the Complaint, a photocopy of the CD cover and CD, has also been lodged

with the Court. Exhibit I, sheet music, to Appendix D, the Affidavit of Oscar

Brand, has also been lodged with the Court. Exhibits C and D, the CD cover and

CD attached to Appendix E, the Affidavit of Luther Campbell, have also been

lodged with the Court.

In response, Acuff-Rose Music, Inc. filed the Declaration of

its agent, Gerald Teifer, and the Declaration of a musicologist, Ear!

Speilman. R. 13: Response; R. 16: Declaration of Gerald Teifer; R.

14: Declaration of Earl Speilman. These declarations did not place

any material facts in dispute.

On January 14, 1991, the trial court granted the Petitioners’

motion for summary judgment pursuant to Rule 56 of the Federal

Rules of Civil Procedure. The trial court dismissed all three counts

infringement.” The trial court further held that “The plaintiff's

pendent tort claims are preempted by 17 U.S.C. § 301.” Appendix

B: App. p. 35a. The trial court further held that “This decision does

not address whether that sum [the amount interpled by Petitioners]

reflects adequate compliance with the Act.” Appendix B: App. p.

37a. [emphasis added]

The Respondent requested, and the trial court granted,

certification for an interlocutory appeal. R. 29: Motion. The Court

of Appeals for the Sixth Circuit denied certification and rejected

the appeal. R. 32: Order. Thereafter, the Respondent filed two

Motions, the first to amend its Complaint and raise new allegations

under the Lanham Act and the second to distribute the funds

interpled or allow further briefing. R. 35: Motion to Amend; R. 34:

Motion to Distribute Funds or Allow Further Briefing. The trial

court denied the Motion to Amend and granted the Motion to Allow

Further Briefing. R. 43: Order. On October 2, 1991, the trial court

entered a final Order, returning the interpled funds to the

Petitioners and confirming its summary judgment previously

granted. R. 47: Order.

On October 14, 1991, the Respondent filed a notice of appeal.

R. 50: Notice of Appeal. On August 17, 1992, the Court of Appeals

for the Sixth Circuit, by split decision, reversed and remanded the

trial court’s order granting the Petitioners’ summary judgment.

Appendix A: App. pp. la-34a. On August 26, 1992, the Petitioners

filed a Petition for Rehearing En Banc in the Court of Appeals for

the Sixth Circuit. On October 26, 1992, the Court of Appeals for

the Sixth Circuit denied the Petitioners’ Petition for Rehearing.

REASONS FOR GRANTING THE WRIT

WHETHER THIS HONORABLE COURT’S DECISION

IN SONY CORP. V. UNIVERSAL CITY STUDIOS, INC., 464

U.S. 417 (1984) AND IN HARPER & ROW PUBLISHERS, INC.

V. NATION ENTERPRISES, 471 U.S. 539 (1985)

EFFECTIVELY OVERRULED PRIOR DECISIONS OF

THE COURT OF APPEALS FOR THE SECOND CIRCUIT

AND THE COURT OF APPEALS FOR THE NINTH

CIRCUIT BY IMPLYING THAT A COMMERCIAL

PARODY OF AN ORIGINAL WORK IS PRESUMPTIVELY

AN UNFAIR USE EVEN IF THE COMMERCIAL PARODY

IS A CREATIVE DERIVATIVE WORK.

The Court of Appeals for the Sixth Circuit, in its majority

opinion in the case at bar, has misapplied this Honorable Court’s

holdings in Sony Corp. v. Universal City Studios, Inc., 464 U.S.

417 (1984) and in Harper & Row Publishers, Inc. v. Nation

Enterprises, 471 U.S. 539 (1985). In both Sony and Harper & Row,

this Honorable Court held that “every commercial use of

copyrighted material is presumptively an unfair exploitation of the

monopoly privilege that belongs to the owner of the copyright.”

Sony Corp. v. Universal City Studios, Inc., 464 U.S. at 451 (1984);

Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. at

562 (1985).? The Court of Appeals for the Sixth Circuit both

2. In the Sony case, this Court held that the commercial use presumption

had been rebutted by the Respondent. 464 U.S. 417 (1984).

misapplied the commercial use presumption to a created derivative

work such as a musical parody, and strengthened the presumption.

Justice Brennan in his dissenting opinion in Harper & Row,

Court in Sony would be misapplied and misused to limit the

i ination of creative derivative works. Judge Brennan

argued:

Protection of the copyright owner’s economic

interest is achieved in this case through an

exceedingly narrow definition of the scope of

fair use. The progress of arts and sciences and

the robust public debate essential to an

enlightened citizenry are ill served by this

constricted reading of the fair use doctrine. See

17 U.S.C. § 107.

471 U.S. at 579 (1985).

Judge Brennan later noted in his dissenting opinion:

The Court’s reliance on the commercial nature

of The Nation’s use as “a separate factor that

tends to weigh against a finding of fair use,”

ante, at 562, is inappropriate in the present

context. Many uses § 107 lists as paradigmatic

examples of fair use, including criticism,

comment, and news reporting, are generally

conducted for profit in this country, a fact of

which Congress was obviously aware when it

enacted § 107. To negate any argument

favoring fair use based on news reporting or

criticism because that reporting or criticism

was published for profit is to render

meaningless the congressional imprimatur

placed on such uses.

471 U.S. at 592 (1985).

The Petitioners respectfully submit that the Court of Appeals

for the Second Circuit (the New York market), the Court of Appeals

for the Ninth Circuit (the Los Angeles market), and the Court of

Appeals for the Sixth Circuit (the Nashville market), because of

the geographic concentration of the film, television, and music

industries in these cities, play a far more significant role in

determining precedent of copyright law than the other federal

circuit courts. Therefore, the decision of the Court of Appeals for

the Sixth Circuit in the case at bar will have a chilling and stifling

effect on the creation and dissemination of commercial musical

parodies, and other forms of parody and social criticism.

The majority opinion’s restrictive holding in this case is

inconsistent with previous rulings by both the Court of Appeals for

the Second Circuit and the Court of Appeals for the Ninth Circuit,

and effectively. holds that commercial musical parody of a

copyrighted work is a misappropriation of the copyrighted work.

Until the issuance of the decision below, the dominant forces

in shaping the Fair Use Doctrine as it pertains to musical song

parodies had been the Second and Ninth Circuit Courts of Appeal.

These Courts, in a series of decisions including Berlin v. EC

Publications, Inc., 329 F.2d 541 (2nd Cir. 1964), Fisher v. Dees,

794 F.2d 432 (9th Cir. 1986), and Elsmere Music Inc. v. National

Broadcasting Co., 623 F.2d 252 (2nd Cir. 1989), have for decades

provided an interpretation of 17 U.S.C. § 107 which draws a

careful distinction between the parody of a musical work and the

mere piracy of that work for commercial gain. These decisions

have been the benchmarks which guided composers and

performers in this field.

With the decision below, in the third of the major “music

circuits,” these precedents are now challenged by a competing

precedent which would effectively outlaw musical parody in

nearly every circumstance. The importance which is likely to be

placed on this recent and, in the Petitioners’ view, manifestly

incorrect precedent, is especially critical for two reasons: First, the

Sixth Circuit has not previously spoken at all on the Fair Use

Doctrine. The opinion below referred to this action as a “case of

first impression” in this Circuit. Appendix A: App. p. 10a. Thus, if

the decision below, which effectively outlaws commercial song

parodies, remains law, there will be a sharp split among the three

Circuits which for all intents and purposes control the music

industry. Second, the opinion below relies heavily on this Court’s

recent decisions in Harper & Row, and Sony, aid implies if it does

not directly state that prior Second and Ninth Circuit precedent has

been overruled by those recent Supreme Court opinions.

Was it the intention of this Houc/able Court by its decisions in

the Sony and Harper & Row cases to reverse prior Second and

Ninth Circuit law regarding musical parody? If the answer to this

question is in the affirmative, then this Court must also have

intended — as will be shown below — to sharply curtail theatrical

and literary criticism by commercial institutions, such as

newspapers, and to generally restrict the permissible role of satire

and criticism in the nation’s intellectual life. However, a reading of

the Sony and Harper & Row opinions strongly indicates that none

of this was in the Court’s mind when it issued those decisions, and

that the ruling below is therefore simply misguided.

In Sony Corp. v. Universal City Studios, 464 U.S. 416, 104S.

Ct. 774 (1984), the owners of certain copyrights of television

programs brought a copyright infringement action against certain

manufacturers of home videotape recorders. The District Court for

the Central District of California, 480 F. Supp. 429 (D.C. Cal.

1982), denied all relief sought by the copyright owners and entered

judgment for the manufacturers, and the copyright owners

appealed. The Court of Appeals for the Ninth Circuit, 659 F.2d 963

(9th Cir. 1983), reversed the district court’s judgment on copyright

claim, and the manufacturers petitioned for writ of certiorari. The

Supreme Court opinion by Justice Stevens said that “every

commercial use of copyrighted material is presumptively an unfair

exploitation of the monopoly privilege that belongs to the owners

of the copyright.” 460 U.S. at 451. But the court went on to hold

that the respondent manufacturers of home videotape recorders

had demonstrated a significant likelihood that substantial numbers

of copyright holders who licensed their work for broadcast on free

television would not object to having their broadcasts time shifted

by private viewers and that such time shifting had not been shown

to cause any likelihood of harm to the potential market for, or the

value of, their copyrighted works. The court therefore held that the

“commercial use” presumption had been rebutted; that home

videotape recorders were capable of substantial non-infringing

uses; and thus, that the manufacturers’ sale of such equipment to

general public did not constitute contributory infringement of

respondents’ copyrights.

In Harper & Row Publishers, Inc. v. Nation Enterprises, 471

U.S. 539 (1985) former president Gerald Ford had contracted with

Harper & Row Publishers, Inc. to publish his as yet unwritten

memoirs. Harper & Row thereafter negotiated a licensing

agreement with Time Magazine under which Time agreed to pay

Harper & Row $25,000 in exchange for the right to excerpt 7,500

words from Mr. Ford’s account of his pardon of former President

Nixon. The Nation Magazine, a direct competitor of Time, in an

effort to scoop Time, published an article which contained 300 to

400 words from President Ford’s unpublished manuscript. Time

canceled its article and refused to pay Harper & Row the balance of

the agreed upon licensing fee. The District Court held that The

Nation’s publication of the verbatim unpublished work constituted

a violation of the Copyright Act and did not constitute fair use. The

Court of Appeals for the Second Circuit reversed and held that The

Nation's article did constitute fair use under 17 U.S.C. § 107. This

Honorable Court reversed and held that The Nation's article did not

constitute fair use.

Nation Enterprises in the Harper & Row decision asserted that

the article that appeared in The Nation was a reporting of historical

events and, therefore, constituted reasonable comment or criticism

as permitted by the Fair Use Doctrine. In response, this Court

acknowledged the historical importance of social criticism. The

Court held that:

As early as 1841, Justice Story gave judicial

recognition to the doctrine in a case that

concerned the letters of another former

President, George Washington.

“{A] reviewer may fairly cite largely

from the original work, if his design be

really and truly to use the passages for

the purpose of fair and reasonable

criticism. On the other hand, it is as

clear, that if he thus cites the most

important parts of the work, with a view,

not to criticize, but to supersede the use

of the original work, and substitute the

review for it, such as use will be deemed

in law a piracy.” Folsom v. Marsh, 9

F.Cas. 342, 344-345 (No. 4,901) (CC

Mass.)

As Justice Story’s hypothetical

illustrates, the fair use doctrine has

always precluded a use that

“supersede(s) the use of the original.”

Ibid. Accord, S. Rep. No. 94-473, p. 65

(1975) (hereinafter Senate Report).

471 U.S. at 550.

But on the facts of Harper & Row, this Court found that “The

Nation’s use had not merely the incidental effect but the intended

purpose of supplanting the copyright holder’s commercially

valuable right of first publication.” 471 U.S. at 562. This Court

further acknowledged that:

Our prior discussion establishes that the scope

of fair use is narrower with respect to

unpublished works. While even substantial

quotations might qualify as fair use in a review

of a published work or a news account of a

speech that had been delivered to the public or

disseminated to the press, see House Report, at

65, the author’s right to control the first public

appearance of his expression weighs against

such use of the work before its release. The

right of first publication encompasses not only

the choice whether to publish at all, but also the

choices of when, where, and in what form first

to publish a work.

471 U.S. at 564.

In Harper & Row, 471 U.S. at 562, the Supreme Court cited

the Sony case, stating that a commercial purpose merely “tends to

weigh against a finding of fair use.” The trial court in the case at

bar, stated that “The defendant may rebut the presumption of

commercial use as described in Harper & Row by convincing the

court that the parody does not unfairly diminish the economic

value of the original. Fisher, 794 F.2d at 437”. Appendix B: App. p.

41a. By contrast, the majority opinion in the case at bar held:

We agree that the commercial purpose is not

itself controlling on the issue of fair use, but

find that the District Court placed insignificant

emphasis on the command of Harper & Row,

wherein the Supreme Court expressly

reaffirmed its earlier holdings that “every

commercial use of copyrighted material is

presumptively an unfair exploitation of the

monopoly privilege that belongs to the owner

of the copyright.” 741 U.S. at 562 (quoting

Sony Corp., 464 U.S. at 451).

Appendix A: App. pp. 12a-13a.

The Sony case involved verbatim copying of the copyrighted

work. The Harper & Row case involved the news reporting of an

unpublished manuscript by a direct competitor. In neither Sony nor

established by the Court of Appeals for the Sixth Circuit

from that of the Court of Appeals for the Second Circuit and the

Court of Appeals for the Ninth Circuit.

The determination of whether or not the Petitioners’ musical

parody of “Oh, Pretty Woman” constitutes fair use is a mixed

question of law and fact for the Court, not a question of fact for the

jury. Fisher v. Dees, 794 F.2d 432, 436 (9th Cir. 1986) The first

jurist who considered this mixed question of law and fact was the

Honorable Thomas Wiseman, the trial judge. Judge Wiseman

correctly found “That no genuine issue of material fact exists

regarding the allegations of copyright infringement.” Appendix B:

App. p. 35a. The trial court correctly applied the four factors

codified in 17 U.S.C. § 107 and found:

. . . that they weigh in favor of the defendants. 2

Live Crew’s ‘Pretty Woman’ is a parody. It’s

purpose is to poke fun at the original version of

“Oh, Pretty Woman.” In so doing, the parody

copies from the original. Notwithstanding the

copying needed to conjure up the original song,

for the foregoing reasons the court concludes

that 2 live Crew’s use of the original

copyrighted song is protected fair use.

Appendix B: App. p. 51a.

On appeal, a majority of the Court of Appeals for the Sixth

Circuit reversed and remanded and stated in its conclusion that: “It

is the blatantly commercial purpose of the derivative work that

prevents this parody from being a fair use.” Appendix A: App. p.

18a. The decision of the Court of Appeals for the Sixth Circuit was

not unanimous. The Honorable David A. Nelson, Circuit Judge,

wrote a strong dissenting opinion which concluded that the

Petitioners’ derivative work did constitute fair use. Judge Nelson

adopted in part the trial court’s reasoning and also noted the

inconsistency of the majority opinion with precedents established

by the Court of Appeals for the Second Circuit and the Court of

Appeals for the Ninth Circuit on the same issue. Appendix A: App.

pp. 19a-34a.

The fact is that all song parodies in this country have some

commercial purpose. The sweeping majority opinion of the Court

of Appeals in the case at bar would effectively prohibit all forms of

parody.

Il.

WHETHER THE MAJORITY OPINION OF THE

COURT OF APPEALS FOR THE SIXTH CIRCUIT

ERRED IN HOLDING THAT THE “COMMERCIAL USE”

PRESUMPTION ESTABLISHED BY THIS HONORABLE

COURT IN SONY CORP. V. UNIVERSAL CITY STUDIOS,

INC., 464 U.S. 417 (1984), IS NOT GOVERNED BY RULE

301 OF THE FEDERAL RULES OF EVIDENCE.

The majority of the Court of Appeals for the Sixth Circuit,

relying upon Sony Corp. v. Universal City Studios, 464 U.S. 416,

104 S. Ct. 774 (1984), argued that “Every commercial use of

copyrighted material is presumptively an unfair exploitation of the

monopoly privilege that belongs to the owner of the copyright.

Sony Corp. v. Universal City Studios, 464 U.S. at 451” Appendix

A: App. p. 13a.

The Court of Appeals for the Sixth Circuit majority opinion

imposed a very restrictive presumption on the Petitioners’ creative

derivative work. The Sixth Circuit held that: “It is the blatantly

commercial purpose of the derivative work that prevents this

parody from being a fair use.” Appendix A: App. p. 18a. It thus held

that this “commercial use” presumption was sufficient to compel a

finding that the Petitioners’ parody adversely effected the market

for and value of the copyrighted work. It reached this conclusion

despite the fact that the only evidence of market impact was

favorable to the Petitioners. Appendix D: App. pp. 70a-78a and

Appendix F: App. pp. 89a-94a. This holding is inconsistent with

the Federal Rules of Evidence. Rule 301 of the Federal Rules of

Evidence provides:

In all civil actions and proceedings not

otherwise provided for by Act of Congress or

by these rules, a presumption imposes on the

party against whom it is directed the burden of

going forward with evidence to rebut or meet

the presumption, but does not shift to such

party the burden of proof in the sense of the risk

of non-persuasion, which remains throughout

the trial upon the party on whom it was

originally cast.

In In re Yoder Company, 758 F.2d 1114, 1119 (6th Cir. 1985),

the Court of Appeals for the Sixth Circuit adopted the prevailing

view that a rebuttable presumption under Rule 301 of the Federal

Rules of Evidence is a “bursting bubble” and that if refuted the

rebuttable presumption vanished and had no further probative

effect. The majority decision of the Court of Appeals for the Sixth

Circuit in the case at bar creates a far more restrictive and inflexible

presumption than the “bursting bubble” approach. The Petitioners

submit that no commercial parody can overcome the pronounced

presumption created by the Court of Appeals for the Sixth Circuit

and therefore no commercial parody can qualify as fair use under

17 U.S.C. § 107.

Il.

WHETHER A CREATIVE DERIVATIVE WORK,

SUCH AS A MUSICAL PARODY, DESPITE ITS

COMMERCIAL PURPOSE, CAN BE AFFORDED

PROTECTION UNDER 17 U.S.C. § 107 BECAUSE OF ITS

IMPORTANCE AS A FORM OF SOCIAL CRITICISM.

The courts initially created Fair Use Doctrine to forcefully

promote creative derivative works and social criticism. The

judicially created doctrine of fair use was then later codified by

Congress in 17 U.S.C. § 107. In codifying the concept of fair use,

Congress made clear that it in no way intended to depart from

Court-created principles or to short-circuit further judicial

development:

The bill endorses the purpose and general

scope of the judicial doctrine of fair use, but

there is no disposition to freeze the doctrine in

the statute, especially during a period of rapid

technological change. Beyond a very broad

statutory expianation of what fair use is and

some of the criteria applicable to it, the courts

must be free to adapt the doctrine to particular

situations on a case-by-case basis. Section 107

is intended to restate the present judicial

doctrine of fair use, not to change, narrow, or

enlarge it in any way.

H.R. No. 94-1476, 94th Cong., 2d Sess. 66 (1976) (House Report),

reprinted in [1976] U.S.Code Cong. & Admin. News, pp. 5659,

5680 (referred to as USCCA). See also, Ren. Rep. No.473, 94th

Cong. 1st Sess. 62 (1975) (Senate Report).

The trial court acknowledged that “At a minimum, courts have

indicated that evaluation of these four factors is required. But they

are not exclusive. Harper & Row, 471 U.S. at 560; Pacific &

Southern Co. v. Duncan, 74 F.2d 1490, 1495 n.7 (11th Cir. 1984),

cert. denied, 471 U.S. 104 (1985).” Appendix B: App. p. 39a. The

Petitioners submit that in addition to the four codified factors, the

trial court and Judge Nelson considered the creative nature of the

Petitioners’ derivative work and the importance of social criticism

to American society. The majority opinion of the Sixth Circuit

ignored these additional factors because of the “blatantly

commercial nature” of the Petitioners’ derivative work. Appendix

A: App., p. 18a.

The Petitioners respectfully assert that the parodist is an

important part of American culture. As stated by Judge Nelson in

his dissenting opinion, a parody:

. . . 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

“[P]ermissible parody, whether or not in good

taste, is the price an artist pays for success. . .”

BMCA, Inc. v. Wilson, 677 F.2d 180, 191 (2d

Cir. 1981) (Mansfield, J., dissenting).

Appendix A: App. p. 33a.

The political parody is deeply rooted in our nation’s history.

These creative derivative works have historically been

commercially sold and performed. “Yankee Doodle”, “The Star

3. The origins of “Yankee Doodle” have been much debated by historians,

but the most persuasive theory traces the song's beginnings to an English ditty,

“Lucy Locket” (or “Fisher's Jig”). The “Yankee Doodle” lyrics were originally

written (and the title supplied) by an English army surgeon as a comment on the

(Cont'd)

Spangled Banner™, and “America” (“My Country ’Tis of Thee”)’

are all political song parodies, with American words put to popular

English ballads of the day. The use of political, musical parodies

has continued throughout the history of this country, including

(Cont'd)

raftag character of colonial troops in the French and Indian War. But, during the

Revolutionary War, the lyrics were rewritten, in numerous verses and variations,

as an anti-British song. Most variant uses, like “The Battle of the Kegs,” a

“harmonious ditty” by Francis Hopkinson (a signer of the Declaration of

Independence) addressed specific current events — in that case a botched plan to

blow up English ships in Philadelphia harbor. See Howard, John Tasker Our

American Music: A Comprehensive History From 1620 to the Present, Crowell

(1965), pp. 37, 113-118; See also, Even, David, Great Men of American Popular

Song, Prentice Hall (1970), p. 6.

4. The “Star Spangled Banner” began, circe ‘775, as the marching song of

London's Anacreontic Society, “To Anecreon in neaven.” Originally, the song

was an ode to love and wine, with each stanza ending “And besides "1! instruct

yes, like me, to intwine/ The myrtle of Venus with Bacchus’s vine.” The first

American parody of the song was published in New York in 1793 (“The genius of

France from his star begem’d throne”), but the song soon thereafter became a

vehicle for patriotic theses, such as “Sons of Columbia,” “For the Glorious

Fourth of July,” “Union of the Gods,” and “Freedom.” The parody, “Adams and

Liberty,” helpted boost the Federalist cause, while a few years later “Jefferson

and Liberty” boosted the rival party. In the War of 1812, the melody was first

used for “The Battle of the Wabash,” and — as we know it today — in Francis

Scott Key's “Defense of Fort McHenry.” Howard, John Tasker Our American

Music: A Comprehensive History From 1620 to the Present, op. cit., pp. 121-126.

5. “America” began with “Sally in My Alley,” an english tavern song. An

early suffragette adopted to it a poem entitled “Rights of Woman.” The resulting

song began, “God save each female's right / Show to her ravish‘d sight / Woman

is free.” Shortly thereafter, the melody produced the English patriotic standard,

“God Save the King.” In 1831, Samule Francis Smith used it for “America.” /d.

pp. 126-128.

recent commercial radio station parodies of the 1991 Gulf War’.

Today, scores of companies, groups, and individuals write,

perform, and record political parody songs of copyrighted

material. These range from the cast of Saturday Night Live [see

Elsmere Music Co., Inc. v. National Broadcasting Co., 482 F.

Supp. 741 (S.D.N.Y.), aff'd, 623 F.2d 252 (2d Cir. 1980)], to lesser

known local groups which charge for admission, and/or sell audio

tapes of their performances.’ Few, if any, of these groups and

individuals seek or obtain permission for their parodies. Further, it

is highly unlikely that the copyright owners would grant

permission if requested. In the case at bar the Petitioners did seek

permission from the Respondent which was refused. Appendix E:

Exhibits A & B, App. pp. 83a-85a. The Petitioners respectfully

assert that the presumption created by the majority decision of the

Court of Appeals for the Sixth Circuit implies that no parody for

commercial exploitation could survive and be declared a fair use of

the original copyrighted work.

6. In the first two months after Iraq's invasion of Kuwait, more than a

dozen parodies appeared on the airwaves, including “Hussein is Crazy” (to “She

Drives Me Crazy”), “Iraqity-Rag” (to “Yackety- Yak”), “Iraq and a Hard Place”

(to “A Rock and a Hard Place”), and “Iraqi Blues” (to “Summertime Blues”). All

of these songs were written and produced by disk jockeys at commercial radio

stations, and given airtime on those stations alongside commercial songs.

Baltimore Sun, “Song Parodists Aim Poison-Pen at Iraq,” August 23, 1990.

7. These include Minnesota Public Radio's “Prairie Home Companion,,”

and “American Radio Theatre,” Oregon‘s “Summer Angels,” the

“Bushwhackers” of Oberlin College, Ohio, the Wisconsin Sierra Club, the “Last

Chance Dixieland Jazz Bank” of Helena, Montana, and Washington, D.C.'s

“Hexagon,” and “Mrs. Foggybottom and Her Friends.”

IV.

WHETHER A COPYRIGHT HOLDER HAS A

PROTECTED INTEREST IN THE POTENTIAL

MARKET FOR PARODIES OF HIS ORIGINAL WORK,

EVEN IF THE ORIGINAL WORK DOES NOT COMPETE

WITH ANY EXISTING PARODY OF THE ORIGINAL

WORK.

The Respondent, as a last resort to convince the trial court and

the Court of Appeals for the Sixth Circuit that the Petitioners’

parody had an effect on the market of its original work,

inconsistently argued that the Petitioners’ parody precluded the

Respondent from developing its own parody of its own original

work. The Respondent had no reasonable expectation of

developing a parody which criticized and mocked this time-

honored rock-n-roll ballad. Amazingly, the Court of Appeals

accepted this argument. Appendix A: App. pp. 16a-17a. If this

Court accepts this fabricated argument of the Respondent then no

parody, commercial or otherwise, would ever be permitted under

the Fair Use Doctrine. According to the Respondent, to defeat a

parodist’s argument of fair use, a copyright owner would then

simply have to make the bold assertion of its intent at some

undetermined date in the future to release a parody of its own

original work.

The Respondent, as evident by the allegations of its

Complaint made it quite clear it had no intent to compete with the

Petitioners’ parody. The Respondent alleged that: “Requests for

licenses that either are not consistent with good taste or would

disparage the future value of the copyright are denied.” Appendix

C: App. p. 59a. The Respondent further stated in the Complaint that

“The unauthorized new lyrics created by Defendants for ‘Pretty

Woman’ are disparaging and therefore not consistent with

maintaining the value of the copyright in ‘Oh, Pretty Woman.’”

Appendix C: App. pp. 60a-61a.

The trial court questioned the Respondent’s concern and noted

in a footnote that:

It is unclear exactly what Acuff-Rose means

when it complains in it response to the Motion

for Summary Judgment that the parody

“dirt[ies]” the copyright. 2 Live Crew’s version

is neither obscene nor pornographic. Even if

the work included pornographic references,

that does not necessarily preclude a finding of

fair use. Pillsbury Co. v. Milky Way

Productions, Inc., 215 U.S.P.Q. 124, 131

(N.D.Ga. 1981).

Appendix B: App. p. 42a, n. 4.

It is evident from the Respondent's allegations as set forth in

the Complaint that it would never release a competing parody of its

original work similar to that of Petitioners’ parody. A parody, by its

very nature, is critical and mocks the original work. Quite often,

the author of the original work finds the parody offensive.

In Pillsbury Co. v. Milky Way Productions, Inc., 215 U.S.P.Q.

124, 131 (D.C.N.Ga. 1981), the District Court held that Screw

magazine’s use of the Pillsbury Company’s trademark, the Popin’

Fresh Doughboy, constituted fair use. The court held that:

Although the portrayal is offensive to the court,

the court has no doubt that Milky Way intended

to make an editorial comment on the values

epitomized by these trade characters. The fact

that Screw magazine is offered for sale does not

compel a contrary conclusion. Social

commentary placed in a newspaper or

magazine is not put to acommercial use simply

because the publication is sold rather than

given to the public. The presentation was

located on the inside of the magazine, not on

the cover where it might be taken more

reasonably as an attempt to capitalize on the

plaintiff's original work.

The plaintiff suggests that, in addressing this

factor, the court should consider the generally

salacious content of Screw magazine. The

plaintiff seems to believe that a pornographic

adaptation of copyrighted works should be

accorded less protection under the fair use

doctrine than what might otherwise be granted

a more continent presentation. The Copyright

Act, however, does not expressly exclude

pornographic materials from the parameters of

the fair use defense, and the plaintiff offers no

authority for this protection. The character of

the unauthorized use is relevant, but, in the

court’s judgment, the fact that this use is

pornographic in nature does not militate

against a finding of fair use.

In University of Notre Dame v. Twentieth Century-Fox, 256

N.Y.S. 2d 301, 307 (1965), the Supreme Court of New York held:

“What seems to one to be trash may have for

others fleeting or even enduring values”

(Hannegan v. Esquire, Inc., 327 U.S. 146, 158,

66 S.Ct. 456, 462, 90 L.Ed. 586). “everyone is

familiar with instances of propaganda through

fiction. What is one man’s amusement, teaches

another’s doctrine” (Winters v. People of State

of New York, 333 U.S. 507, 510, 68 S.Ct. 665,

667, 92 L.Ed. 840). Accordingly, as intimated

at the outset, we may not import the role of

literary or dramatic critic into our functioning

as judges in this case; and so for purposes of the

law we may not reach a conclusion that the

works of fiction involved in this litigation are

not artistic or literary works. Whether they are

creations of merit, whether they have value

only as entertainment and no value whatever as

opinion, information or education, pose

questions which would require us to stake out

those elusive lines that we have been warned

not to attempt in the cases above cited (see also

Molony v. Boy Comics Publishers, 227

App.Div. 116, 171, 98 N.¥.S.2d 119, 123, Van

Voorhis, J.). Whether “John Goldfarb, Please

Come Home” is a good burlesque or bad,

penetrating satire or blundering buffoonery, is

not for us to decide. It is fundamental that

courts may not muffle expression by passing

judgment on its skill or clumsiness, its

sensitivity or coarseness; nor on whether it

pains or pleases. It is enough that the work is a

form of expression “deserving of substantial

freedom - both as entertainment and as a form

of social and literary criticism” (Berlin v. E.C.

Publications, Inc., 2 Cir., 329 F.2d 541, 545,

cert. den., 379 U.S. 822, 85 S.Ct. 46, 13

L.Ed.2d 33); and we are not prepared to hold

that exercise of the freedom in the instant

circumstances infringes on rights which equity

should protect.

In assessing the economic effect of the parody,

the parody’s critical impact must be excluded.

Through its critical function, a “parody may

quite legitimately aim at garroting the original,

destroying it commercially as well as

artistically.” B. Kaplan, An Unhurried View of

designed to stifle critics. “‘Destructive’

parodies play an important role in social and

liveracy criticism and thus merit protection

even though they may discourage or discredit

an original author.” Parody Defense, 96

Harv.L.Rev. at 1411. Accordingly, the

economic effect of a parody with which we are

concerned is not its potential to destroy or

diminish the market for the original — any bad

review can have that effect — but rather whether

it fulfills the demand for the original. Biting

criticism suppresses demand; copyright

infringement usurps it. Thus, infringement

occurs when a parody supplants the original in

markets the original is aimed at, or in which the

original is, or has reasonable potential to

become, commercially valuable. See, ¢.g., Air

Pirates, 581 F.2d at 756; Berlin v. E. C.

Publications, Inc., 329 F.2d 541, 545 (2d Cir.),

cert. denied, 379 U.S. 822, 85 S.Ct. 46, 13

L.Ed.2d 33 (1964); Parody Defense, supra, at

1409-11.

The Petitioners respectfully assert, as supported by the

affidavits of their expert witnesses, that the parody and the

copyrighted work do not compete. Although the Respondent's

In Fisher v. Dees, 794 F.2d 432, 437 (9th Cir. 1986), the Ninth version is for commercial gain, the sale of the Petitioners’ version

Circuit discussed the fact that very often a parody was critical of will not, in any way, reduce the economic value of the

the original work. The Court specifically held: Respondent's work. Mr. Brand states:

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.

Appendix D: App. pp. 75a. This conclusion is also confirmed by

Mr. Krasilovsky who states that “In other words, the record

collector seeking the original composition would be highly

unlikely to purchase or tune into the 2 Live Crew version.”

Appendix F: App. p. 91a.

In Hill v. Whalen, 220 F. 359, 360 (S.D.N.Y. 1914), the Court

held that:

lessened its money value by showing that it

was not worth seeing or hearing, could not give

any right of action for infringement of

In Rosemont Enterprises, Inc. v. Random House, Inc., 366 F.2d

303, 307 (2d Cir. 1966), the Court held:

Whether an author or publisher reaps economic

benefits from the sale of a biographical work,

or whether its publication is motivated in part

by a desire for commercial gain, or whether it is

designed for the popular market, ie., the

average citizen rather than the college

professor, has no bearing on whether a public

benefit may be derived from such a work.

Moreover, the district court in emphasizing the

commercial aspects of the Hughes biography

failed to recognize that “{aJll publications

presumably are operated for profit * * *.”

Koussevitzky v. Allen, Towne & Health, 188

Misc. 479, 483, 68 N.Y.S.2d 779, 783, aff'd,

272 App.Div. 759, 69 N.Y.S.2d 432 (ist Dept.

1947), and that “both commercial and artistic

elements are involved in almost every [work]

* * *” Note, 56 Colum. L. Rev. supra at 597.

Thus, we conclude that whether an author or

publisher has a commercial motive or writes in

a popular styled is irrelevant to a determination

of whether a particular use of copyrighted

material in a work which offers some benefit to

the public constitutes a fair use. C7.

Koussevitzky v. Allen, Towne & Health, 68

N.Y.S.2d supra, 782-784 (construing N.Y.

Civil Rights Law, McKinney’s Consol. Laws,

c. 6, section 51).

The trial court concluded:

With respect to the parody “Pretty Woman,”

this fourth factor favors the defendants. As in

Fisher, it is extremely unlikely that 2 Live

Crew’s song could adversely affect the market

for the original. The intended audience for the

two songs is entirely different. The odds of a

record collector seeking the original

composition who would also purchase the 2

Live Crew version are remote. Defendants’

Affidavit of William Krasilovsky. “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.”

Defendant's Affidavit of Oscar Brand. Second,

while Acuff-Rose is not required to prove

damages, Marcus v. Rowley, 695 F.2d 1171,

1177 (9th Cir. 1983), it has not produced

convincing evidence that any harm to any

existing or potential market has occurred. Cy.

Harper & Row, 471 U.S. at 567 (where trial

court found an actual effect on the market). On

a motion for summary judgment, the

nonmoving party cannot rest on its pleadings,

but must present some “specific facts showing

that there is a genuine issue for trial.” Celotex

Corp., 477 U.S. at 324. Acuff-Rose must

adduce more than a scintilla of evidence to

overcome the motion. Street v. J.C. Bradford &

Co., 886 F.2d 1472, 1479 (6th Cir. 1989).

Appendix B: App. pp. 49a-50a.

Judge Nelson, in his dissent, relying on Oscar Brand’s

affidavit as to the effect of the parody on the market for the original

work, stated that “Brand’s analysis of the market stands

unrefuted.” Appendix B: App. p. 32a.

| CONCLUSION

The Petitioners respectfully assert that no presumption

against a finding of fair use is applicable to a creative derivative

work, such as a musical parody. The Petitioners respectfully assert

that if a presumption exists precluding fair use of a commercially

exploited musical parody, then such presumption is rebuttable as

provided by Rule 301 of the Federal Rules of Civil Procedure. The

Petitioners respectfully assert that the presumption created by the

majority opinion of the Court of Appeals for the Sixth Circuit in the

case at bar is far too strong and inflexible and is inconsistent with

decisions of both the Court of Appeals for the Second Circuit and

the Court of Appeals for the Ninth Circuit. Lastly, the author of an

original work cannot fabricate a potential market for parodies of its

original work then use that fabricated market to suppress parodies

it finds offensive.

Respectfully submitted,

ALAN MARK TURK

Attorney for Petitioners

200 Fourth Avenue, North

Eighth Floor

Nashville, TN 37219

(615) 726-2999

APPENDIX A — OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED

AUGUST 17,1992

No. 91-6225

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

ACUPF-ROSE MUSIC, INC., .

Decided and Filed August 17, 1992

NELSON and NORRIS, Circuit Judges; and

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34a 35a

eae APPENDIX B — MEMORANDUM OPINION AND

y 2 Live Crew “ _

court's finding of ae . ay aS Pree A ORDER OF THE UNITED STATES DISTRICT COURT

not let that fact conceal what may be the song's most FOR THE MIDDLE DISTRICT OF TENNESSEE,

significant message - for here the vulgarity, to NASHVILLE DIVISION

paraphrase Marshall M Luhan, is the TY The

original work may not seem vulgar > Mt See DRE, Bt Go IN THE UNITED STATES DISTRICT COURT

2 Live Crew a Sew, FOR THE MIDDLE DISTRICT OF TENNESSEE

elnewrey. Oe raee Se or angel tke NASHVILLE DIVISION

perception is not one we ought to suppress 3:90-0524

ACUFF-ROSE MUSIC, INC.

LUTHER R. CAMPBELL a/k/a Luke Skyywalker,

a CHRISTOPHER WONGWON a/k/a Fresh Kid Ice, MARK ROSS

a/k/a Brother Marquis, DAVIS HOBBS a/k/a Mr. Mixx, p/k/a THE

2 LIVE CREW and LUKE SKYYWALKER RECORDS

MEMORANDUM

| This case involves a claim by Acuff-Rose Music, Inc.

— . ' of the (“Acuff-Rose”) for copyright infringement of its song, “Oh, Pretty

rh "Se MCA, ages Ao 677 F.2d 80, 185 (2d Woman.” Acuff-Rose has named as defendants the members of

1), where the panel majority said this: the rap group 2 Live Crew and Luke Skyywalker Records. The

“Ww are not prepared to hold thet » commercial composer plaintiff contends that the defendants unfairly are trying to cash in

can plagarag a, competitor's ecommerce! guia, and on the popularity of “Oh, Pretty Woman.”

hen cucape hay by cling the cod real pared,

For the reasons stated below, the Court finds that no genuine

have some sympathy for, this sitinude, app ay = ba stngethe tiene ee

dry or lem, i gs again a tbe endy bey has been. 30 56. The plaintiff's pendent tort claiens are preempted by 17 U.S.C.

2 Live Crew song,

nde or ho chang Le ce oe

36a

Appendix B

This copyright case involves Roy Orbison’s musical hit “Oh,

Pretty Woman” as recorded by 2 Live Crew. Roy Orbison and

William Dees co-authored “Oh, Pretty Woman” in 1964 and

_assigned their rights in the song to Acuff-Rose Music the same

year. “Oh, Pretty Woman” was copyrighted by Acuff-Rose in 1964.

Since then the song has continued to generate profits for Acuff-

Rose.

On July 5, 1989, 2 Live Crew’s manager, Linda Fine, wrote

Gary Teifer of Opryland U.S.A., Inc. and Acuff-Rose. Fine

informed Teifer that 2 Live Crew was going to parody “Oh, Pretty

Woman,” that Orbison and Dees would receive full credit as

owners and authors, and that 2 Live Crew would pay Acuff-Rose

the statutorily required rate for use of the song. Teifer responded on

July 17, denying the license request and informing Fine that “we

cannot permit the use of a parody of ‘Oh, Pretty Woman.’ ”

On July 15, 1989, 2 Live Crew released its version of “Oh,

Pretty Woman” on record albums, tapes and compact discs,

entitled “As Clean As They Wanna Be.” The release, called “Pretty

Woman,” is on side B, sandwiched between “Me So Horny” and

“My Seven Bizzos.” Both the compact disc cover and compact disc

itself acknowledge Orbison and Dees as the authors of “Oh, Pretty

Woman” and Acuff-Rose as the publisher.

Almost one year later, on June 18, 1990, Acuff-Rose sued 2

Live Crew and their record company, Luke Skyywalker Records,

for copyright infringement, interference with business relations,

and interference with prospective business advantage for the

performance and distribution of a copy of “Oh, Pretty Woman.”

Acuff-Rose contends that the lyrics of “Oh, Pretty Woman” as sung

by 2 Live Crew “are not consistent with good taste or would

37a

Appendix B

disparage the future value of the copyright.” Moreover, Acuff-

Rose charges that 2 Live Crew's music is substantially similar in

melody to “Oh, Pretty Woman” and the lyrics of the first verse are

substantially similar to that of the original version. In response,

defendants have moved for summary judgment. They argue that

“Pretty Woman” is a parody that constitutes fair use under 17

U.S.C. § 107 of the Copyright Act, 17 U.S.C. §§ 101-914 (1982).

They also argue that the two tort claims are preempted by 17U.S.C.

§ 301. Pursuant to Fed. R. Civ. P. 67, 2 Live Crew has deposited

with the Court the $13,867 it maintains is due to Acuff-Rose for use

of its song as required by the Copyright Act. This decision does not

we ete whether thet sum reflects adequate compliance with the

The resolution of this motion presents two questions for the

Court to address: first, whether “Pretty Woman” constitutes fair

use of copyrighted materia! pursuant to 17 U.S.C. § 107; and

second, whether the plaintiff's state law claims are preempted by

federal copyright law.

A. Standard of review

Summary judgment is appropriate only when there is no

genuine issue of material fact and the moving party is entitled to

judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317,

322-23 (1986); Street v. J.C. Bradford & Co., 886 F.2d 1472, 1476-

80 (6th Cir. 1989). The party seeking summary judgment bears the

initial burden of showiag the absence of a genuine issue of material

fact. Celotex, 477 U.S. at 323. In responding to a motion for

summary judgment, the nonmoving party cannot rest on its

iS @ genuine issue for trial.” Jd. at 324.

Appendix B

The Supreme Court concluded in Anderson v. Liberty Lobby,

Inc., 477 U.S. 242 (1986), that a dispute about a material fact is

“genuine” within the meaning of Fed. R. Civ. P. 56 only if “the

evidence is such that a responsible jury could return a verdict for

the nonmoving party.” 477 U.S. at 248. “The mere existence of a

scintilla of evidence in support of the plaintiff's position will be

insufficient.” Jd. at 252. Of course, the court is to construe the

evidence and all inferences to be drawn from it in the light most

favorable to the nonmoving party. /d. at 255.

B. Fair Use

To foster the widespread dissemination of ideas, the copyright

system is “designed to assure contributors to the store of

knowledge a fair return for their labors.” Harper & Row

Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 546 (1985).

See Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 429

(1984) (purpose of copyright is to create incentives for creative

effort). Notwithstanding the monopoly granted to the owner, fair

use has been defined as the “privilege in others than the owner of a

without his consent.” Harper & Row, 471 U.S. at 549 (quoting H.

Ball, Law of Copyright and Literary Property, 260 (1944)).

Section 107 of the Copyright Act instructs courts to balance

the following four factors:

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 a commercial nature or is for

nonprofit educational purposes;

Appendix B

(2) the nature of the copyrighted work;

(3) the amount and substantiali ity 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 copyrighted work.

At a minimum, courts have indicated that evaluation of these four

factors is required. But they are not exclusive. Harper & Row, 471

U.S. at 560; Pacific & Southern v. Duncan, 744 F.2d 1490, 1495 n.7

(11th Cir. 1984), cert. denied, 471 U.S. 1004 (1985).

Before the court may move to the merits of the statutory fair

use analysis, it must consider whether this case is suitable for

summary judgment. Plaintiffs allege that a number of material

issues of fact remain. “Fair use is a mixed question of law and fact.”

Harper & Row, 471 U.S. at 560 (quoting Pacific & Southern Co.,

744 F.2d at 1495 n. 8). “Where the district court has found facts

sufficient to evaluate each of the statutory factors, an appeilate

court “need not remand for further factfinding ... [but] may

conclude as 2 matter of law that [the challenged use] do{es] not

qualify as a fair use of the work.’ ” Jd. Based on the

evidence presented by the parties in this case, including copies of

the songs, correspondence and affidavits, whether defendant's

parody constitutes fair use under 17 U.S.C. § 107 is a question of

law for the Court to determine. See Fisher v. Dees, 794 F.2d 432,

436 (9th Cir. 1986) (although discovery not commenced, since

“partics dispute only the ultimate conclusions to be drawn from the

of the jury”).

Appendix B

Since no genuine material issues of fact remain, the Court will

proceed to address the four factors cited by § 107.’

1. Purpose and Character of the Use. The first factor the

Court must consider is the purpose and character of the use,

including whether such use is of a commercial nature or is for

nonprofit educational purposes. As examples of fair use, the

preamble of § 107 lists “criticism, comment, news reporting,

teaching . . . scholarship, [and] . . . research.” 17 U.S.C. § 107.

Congress has listed parody as one of those activities that might

qualify for the fair use exception. See H.R. Rep No. 1476, 94th

Cong., 2d Sess., 65 (1976), reprinted in 1976 U.S. Code Cong.

Admin. News 5680. Obviously, 2 Live Crew's song is included on

a commercially distributed record album sold for the purpose of

making a profit.

Although 2 Live Crew's primary goal in releasing “As Nasty

As They Wanna Be” is to sell its music, that finding “does not

necessarily negate a fair use determination... .” 3 M. Nimmer,

Nimmer on Copyright, § 13.05[A] at 13-70 (1990). In Harper &

Row, the Court stated that a commercial purpose merely “tends to

weigh against a finding of fair use.” Harper & Row, 471 U.S. at

562. “The crux of the 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.” /d.

Importantly for the purposes of this case, it is plain that 2 Live

1. No published Sixth Circuit opinion addresses this type of copyright

infringement question. Compare Pro Arts, Inc. v. Hustler Magazine, Inc., 787 F.2d

592 (6th Cir. 1986) (per curiam) (unpublished text in Westlaw). Accordingly, this

Court relies on opinions from other circuits, notably the Second and Ninth Circuits.

4la

Appendix B

Crew also desired to parody the ori version of Pretty

Woman.” In copyright law, aadaen long ted that

satirical expression is “deserving of substantial freedom — both as

entertainment and as a form of social and literary criticism.” Berlin

v. E.C. Publication, Inc., 329 F.2d 541, 545 (2nd Cir.), cert. denied,

379 U.S. 822 (1964). Including parody within the fair use doctrine

has been recognized as “a means of fostering the creativity

protected by the copyright law.” Warner Bros., Inc. v. American

Broadcasting Companies, 720 F.2d 231, 242 (2d Cir. 1983).

Many parodies “distributed commercially be ‘more

nature of an editorial or social commentary than. en attomes vo

capitalize financially on the plaintiff's original work.’ ” Fisher v.

Dees, 7194 F.2d 432, 437 (9th Cir. 1986) (quoting Pillsbury Co. v.

Milky Way Productions, Inc., 215 U.S.P.Q. 124, 131 (N.D. Ga.

1981)); Cf Original Appalachian Artworks v. Topps Chewing

Gum, 642 F. Supp. 1031, 1034 (N.D. Ga. 1986) (holding that

primary purpose behind defendant's parody “is not an effort to

make a social comment but is an attempt to make money”). As

discussed in Section [1.B.4, infra, the defendant may rebut the

presumption of commercial use as described in Harper & Row by

convincing the court that the parody does not unfairly diminish the

economic value of the original. Fisher, 794 F.2d at 437.

Acuff-Rose argues that the song is not a parody. It contends

2 Dallas Cowboys Cheerleaders v. Pussycat Cinema, 467 F.

(S.D.N.Y.), aff'd, 604 F.24200(24 Cir. 7 ny tne 09 a. er

language or style of another work is closely imitated or mimicked for comic effect or

niducule.” See Dorson, Satiric Appropriation and the Law of Libel, Trademark and

potent form of social commentary which attempts to expose the foibles and follies of

society in direct, biting. critical, and often harsh language — tempered by humor”).

424

Appendix B

that the 2 Live Crew’s version does not comment on the

copyrighted work because the former is “primarily about the

physical attributes of women” and the latter is “primarily about

loneliness.”

But based on a comparison of the two songs and the affidavits

provided to the Court, it is apparent that 2 Live Crew has created a

comic parody of “Oh, Pretty Woman.” The theme, content and

style of the new version are different than the original. In his

affidavit, Luther Campbell, also known as Luke Skyywalker,

states that his version of “Oh, Pretty Woman” was written as a

parody designed “through comic lyrics, to satirize the original

work. .. .” He acknowledges that he purposefully copied selected

music and lyrics from “Oh, Pretty Woman” as a device to help

listeners identify the parody with the original version. 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.

2 Live Crew’s lyrics provide the strongest evidence of its

attempt to parody “Oh, Pretty Woman.” 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.‘ The first lyrical hint that something is amis comes when a

3 Gerry Teifer’ s comment in his July 17, 1990 letter to 2 Live Crew that the new

version of “Oh, Pretty Woman” is a parody does not necessarily equate with the

specific legal definition of parody. Teifer says in his affidavit that he never heard the 2

Live Crew version prior to denying their licensing request.

4 It is unclear exactly what Acuff-Rose means when it con.piains in its

response to the Motion for Summary Judgment that the parody “dirt{ies]" the

work included pornographic references, that does not necessarily preclude a finding

of fair use. Pillsbury Co. v. Milky Way Productions, Inc.215U.S.P.Q.124,131(N.D.

Ga. 1981).

43a

Appendix B

loud, barking laugh immediately follows the first two words of the

parody, “pretty woman.” (Laughter follows later in the song too.)

The purpose of the laughter is soon explained as the ensuing

choruses respectively depict a big, hairy woman, a bald-headed

woman, and a “two-timin’ ” woman. Roy Orbison’s pretty woman

sum, 2 Live Crew is an anti-establishment rap group and this son

derisively demonstrates how bland and banal tho Cihlonn cone

seems to them. See MCA, Inc. v. Wilson, 677 F.2d 180, 15 (2d Cir.

1981) (noting that “if the copyrighted [work] is not at least in part

an object of the parody, there is no need to conjure it up”);

Defendant's Affidavits of Oscar Brand and William Krasilovsky.

The parody also employs a number of musical devices that

exaggerate the original and help to create a comic effect. 2 Live

Crew uses the same drum beat and bass riff to start its song. But

unlike the original, only five seconds into the song and

immediately following the bass riff, 2 Live Crew inserts a heavily

distorted “scraper,” indicating a significant disparity in style. The

same scraper is used four seconds later to reiterate that message

and subsequently at the end of the song as well. Also at the

beginning of the parody, the first soloist sings in a different key

than the chorus. In addition, four times during the parody, 2 Live

Crew repeats Orbison’s bass riff over and over again, double the

number of times on the original, until the riff begins to sound like

annoying scratch on a record.

Appendix B

Although the Court has determined that 2 Live Crew’s version

parodies the original, a finding of a parody does not necessarily

equate with a finding of fair use. Fisher, 794 F.2d at 435. “Parody

was not classified as a presumptively fair use . . . . Each assertion

of the ‘parody defense’ must be considered individually, in light of

the statutory facts, reason, experience, and of course, the general

principles developed in past cases.” Jd. As a result, the Court will

examine the remaining three statutory elements of § 107.

2. Nature of the Copyrighted Work. the second factor is the

nature of the copyrighted work. In addressing this element, “the

court may consider, among other things, whether the work was

creative, imaginative, and original, . . . and whether it represented

a substantial investment of time and labor made in anticipation of

financial return.” MCA, 677 F.2d at 182 (citation omitted). See also

Harper & Row, 471 U.S. at 563; 3 M. Nimmer, Nimmer on

published work, with creative roots, this factor weighs in favor of

the plaintiff.

3. Amount of Quotation. The third factor to address is the

amount and substantiality of the portion used in relation to the

copyrighted work as a whole. This element contains quantitative

and qualitative elements and as a result the amount of protected

material that a copier may take under the rubric of fair use will vary

from case to case.

For instance, fair use may not allow a person to copy the most

qualitatively “valuable” portion of the work, even if such portion

constitutes a relatively small amount of the entire protected

material. See, e.g., Harper & Row, 471 U.S. at 565-66. In Harper &

Row the Supreme Court noted that a taking that is “insubstantial

with respect to the infringing work” does not necessarily mean that

4Sa

Appendix B

fair use applies. /d., 471 U.S. at 565. By contrast, “the copying of

an entire work does not preclude fair use per se.” Hustler

Magazine, Inc., v. Moral Majority Inc., 796 F.2d 1148, 1155 (9th

Cir. 1986).

Acuff-Rose argues that the portions taken from “Oh, Pretty

Woman” are both qualitatively and quantitatively significant.

According to the plaintiff’s musicologist, Earl V. Spielman, the

two works are substantially similar. The copying includes the name

of the song and key lyrics. The 2 Live Crew version #!vo includes

the same guitar refrain, opening drum beat and melody and chorus.

Affidavit of Earl V. Spielman. Since the original song is so popular,

Acuff-Rose contends that 2 Live Crew does not need to copy much

of the original in order to conjure up its memory.

But the conclusions drawn by the plaintiffs does not address

whether 2 Live Crew used more of the copyrighted work than was

necessary to recall or conjure up “Oh, Pretty Woman.” See, e.¢.,

Fisher, 794 F.2d at 438 n.4 (holding that affidavits conflicting on

question of substantiality are irrelevant given that issue of extent of

taking is a question of law). No one disputes that 2 Live Crew

copied “Oh, Pretty Woman.” But the question about substantial

similarity cannot be divorced from the purpose for which the

defendant’s work will be used.

It is a settled aspect of copyright law that paradists have the

right to conjure up the object of the parody. In Berlin, 329 F.2d 541,

the court stated that where “the parody has neither the intent nor the

effect of fulfilling the demand for the original, and 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, a

finding of infringement would be improper.” Jd. at 545. See

Elsmere Music, Inc. v. National Broadcasting Co., 623 F.2d 252,

46a

Appendix B

253 (2d Cir. 1980) (“parody frequently needs to be more than a

fleeting evocation of an original in order to make its humorous

point”). Indeed, the effectiveness of a parody inherently depends

on its ability to copy the original work.

Several courts that have balanced the conflict between the

rights of the copyright owner against the goals of the parodist have

concluded that parodies of songs require more leeway than other

types of parodies. The Ninth Circuit reasoned in Fisher that

resolution of the substantiality question depends on the medium of

the respective works. In Fisher, the plaintiffs sued for copyright

infringement of a song entitled “When Sunny Gets Blue. As in

this case, the plaintiffs previously had denied defendant Dees

request to record a parody of the original. Nonetheless, Dees

released his parody song “When Sonny Sniffs Glue,” copying the

musical theme of the original while changing the lyrics. /d. at 434.

The Fisher court observed that:

Like a speech, a song is difficult to parody

effectively without exact or near-exact

copying. If the would-be parodist varies the

music or meter of the original substantially, it

simply will not be recognizable to the general

audience. This “special need for accuracy,

provides some license for “closer” parody. . . .

To be sure, that license is not limitless: the

parodist’s desire to make the best parody must

be “balanced against the rights of the copyright

owner in this original expression.”

Fisher, 794 F.2d at 439 (citations omitted). Likewise, in Berlin, the

Second Circuit affirmed the application of the fair use defense in a

case where the defendants, publishers of “Mad Magazine,” had

47a

Appendix B

published a volume which parodied twenty-five of the plaintiff's

song lyrics in same meter. “The disparaties in theme, content and

style between the original lyrics and the alleged infringements

could hardly be greater.” Berlin, 329 F.2d at 545. Cf. Walt Disney .

Productions v. Air Pirates, 581 F.2d 751, 758 (9th Cir. 1978)

(holding that fair use defense cannot apply where the copying is

virtually complete or almost verbatim and that parodist may only

use what is necessary to conjure up the original), cert. denied, 439

U.S. 1132 (1979); MCA, 677 F.2d at 185 (holding that where

defendant's song “Cunnilingus Champion of Co. C” did not parody

plaintiff's song “Boogie Woogie Bugle Boy of Company B,” the

amount copied by defendants from the original song was so

substantial as to be unfairly excessive).

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. Fisher,

794 F.2d at 439.

4. Effect on the Market. Finally, as discussed in the first

statutory factor under § 107, the Court must examine the effect of

the use upon the potential market for or value of the copyrighted

work. The Supreme Court has referred to the fourth factor as “the

single most important element of fair use.” Harper & Row, 471

U.S. at 566. Accord Triangle Publications, Inc. v. Knight-Ridder

Newspapers, Inc., 626 F.2d 1171, 1175 (Sth Cir. 1980).

48a

Appendix B

The Supreme Court reasoned that this element should be

weighed most heavily since “a use that has no demonstrable effect

upon the potential market for, or the value of, the copyrighted work

need not be prohibited in order to protect the author’s incentive to

create.” Sony Corp., 464 U.S. at 450. As a result, fair use, “when

properly applied, is limited to copying by others which does not

materially impair the marketability of the work which is copied.”

Harper & Row, 471 U.S. at 566-67 (quoting 1 Nimmer, Nimmer on

finding of fair use, one need show only that if the defendant's use

“should become widespread, it would adversely affect the

potential market for the copyrighted work.’ " Harper & Row, 471

U.S. at 568 (quoting Sony Corp., 464 U.S. at 451).

Neither Harper & Row nor Sony involved a parody. But in

Fisher, which involved a copyright infringement claim and a

parody defense, and the Ninth Circuit held that the parody “When

Sonny Sniffs Glue” had no cognizable economic impact on the

original song. “When Sunny Gets Blue.” It concluded that

commercial substitution was unlikely, remarking that:

“When Sunny Get Blue” is a “lyrical

song concerning or relating to a

woman’s feelings about lost love and

her chance for .... happiness again.”

By contrast, the parody is a 29-second

recording concerning a woman who

sniffs glue, which “ends with noise and

laughter mixed into the song.” We do

not believe that consumers desirous of

hearing a romantic and nostalgic ballad

such the composers’ song would be

satisfied to purchase the parody instead.

49a

Appendix B

Nor are those fond of parody likely to

consider “When Sunny Gets Blue” a

source of satisfaction. The two works do

not fulfill the same demand.

Fisher, 794 F.2d at 438. See also, Consumers Union of United

States, Inc. v. General Signal Corp., 724 F.2d 1044, 1051 (2d Cir.

1983) (“Where the copy does not compete in any way with the

' Original . . .concern is absent.”), cert. denied, 469 U.S. 823 (1984):

Elsmere Music, 482 F. Supp. 741, 746-47 (S.D.N.Y.), aff'd, 623

F.2d 252 (2d Cir. 1980) (although defendants appropriated the

heart of plaintiff’s song, since the copying was a parody it could

not fulfill demand for the original version). Cf. New Line Cinema

Corp. v. Bertlesman Music Group, 693 F. Supp. 1517, 1528

(S.D.N.Y. 1988) (parody defense rejected where defendant’s rap

video would be likely to harm the value of carefully planned

derivative use of plaintiff’s movie in the rap video market).

With respect to the parody “Pretty Woman,” this fourth factor

favors the defendants. As in Fisher, it is extremely unlikely that 2

Liv Crew’s song could adversely affect the market for the Original.

The intended audience for the two songs is entirely different. The

odds of a record collector seeking the original composition who

would also purchase the 2 Live Crew version are remote.

Defendant’s Affidavit of William Krasilovsky. “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. I cannot see how it can

affect the sales or popularity of the Orbison song, except to

stimulate interest in the original.” Defendant’s Affidavit of Oscar

Brand. Second, while Acuff-Rose is not required to prove

damages, Marcus v. Rowley, 695 F.2d 1171, 1177 (9th Cir. 1983), it

has not produced convincing evidence that any harm to any

existing or potential market has occured. Cf. Harper & Row, 471

Appendix B

U.S. at 567 (where trial court found an actual effect on the market).

On a motion for summary judgment, the nonmoving party cannot

rest on its pleadings, but must present some “specific facts

showing that there is a genuine issue for trial.” Celotex Corp., 477

U.S. at 324. Acuff-Rose must adduce more than a scintilla of

evidence to overcome the motion. Street v. J.C. Bradford & Co.,

886 F.2d 1472, 1479 (6th Cir. 1989).

Plaintiffs attempt to focus on their possible future losses and

mount two different arguments. First, they contend that 2 Live

Crew’s parody prevents them from marketing future derivative

works, such as a rap version or even their own “burlesque” of the

Orbison original. Second, they argue that “Oh, Pretty Woman”

“has been tarnished by being associated with these lyrics and with

2 Live Crew” and that will result in the loss of future licensing

arrangements.

Since 2 Live Crew’s version of “Oh, Pretty Woman” is a

parody, that release has not prevented Acuff-Rose from recording

whatever version of the original it desires. Likewise, plaintiff’s

argument that it would be prevented from releasing a parody of

their work is meritless. In a world where copyright monopoly

stretched to that great extent, parodies would be unlikely ever to be

approved by the original author. See 3 Nimmer, Nimmer on

(“Parodists will seldom get permission from those whose works

are parodied. ... The parody defense to copyright infringement

exists precisely to make possible a use that generally cannot be

bought.”)

Examining the latter argument, several courts have

discounted attempts by copyright holders to claim infringement

based on the impact of alleged criticism. “In assessing the

Sla

Appendix B

F.2d at 437-38 (citations omitted). Also see Consumers Union, 724

F.2d at 1050-51; Pillsbury Co. v. Milky Way Productions, Inc., 215

U.S.P.Q. 124, 131 (N.D. Ga. 1981).

Il.

Having applied § 107’s four factor, the Court finds that they

weigh in favor of he defendants. 2 Live Crew's “Pretty Woman” is

a parody. Its purpose is to poke fun at the original version of “Oh,

Pretty Woman.” In so doing, the parody copies from the original.

Notwithstanding the copying needed to conjure up the original

song, for the foregoing reasons the Court concludes that 2 Live

Crew’s use of the original copyrighted song is protected fair use.

IV.

. Defendants also argue that plaintiff’s state law claims for

interference with business relations and interference with

prospective business advantage for the performance and

distribution of a copy of “Oh, Pretty Woman” are preempted by §

301 of the Copyright Act. 17 U.S.C. § 301 describes the extent to

which the Copyright Act preempts state law causes of action based

on copyright. It provides in pertinent part:

(a) On and after January 1, 1978 all legal or

equitable rights that are equivalent to any of the

exclusive rights within the general scope .f

52a

Appendix B

53a

Appendix B

of authorship that are fixed in a tangible

medium of expression and come within the

subject matter of copyright as specified by

sections 102 and 103 ... are governed

exclusively by this title. Thereafter no person is

entitled to any such right or equivalent right in

any such work under the common law or

statutes of any State.

(b) Nothing in this title annuls or limits any

rights or remedies under the common law or

statutes of any State with respect to —

(3) activities violating legal or

equitable rights that are not equivalent

to any of the exclusive rights within the

general scope of copyright as specified

by section 106.

A two-part test determines when § 301(a) preempts at

common law tort claim. “First, the work in which the right is

asserted must be fixed in tangible form and come within the subject

matter of copyright as specified in [17 U.S.C. § 102]. Second, the

right must be equivalent to any of the rights specified in [17 U.S.C.

§ 106}.” Baltimore Orioles v. Major League Baseball Players

Assn., 805 F.2d 663, 674 (7th Cir. 1986), cert. denied, 480 U.S. 941

(1987). See also Harper & Row Publishers, Inc., v. National

Enterprises, 723 F.2d 195, 199-200 (2d Cir. 1983), rev'd on other

grounds, 471 U.S. 539 (1985).

In this case, Acuff-Rose focuses on the second factor of the

§ 301 analysis. It argues that the tort claim is not “equivalent to”

5. Section 106 of the Copyright Act provides:

Subject to sections 107 through 118, the owner of

and to authorize any of the following:

(1) to reproduce the copyright work in copies or

(2) t© prepare derivative works based upon the

copyrighted work;

(3) to distribute copies or phonorecords of the

copyrighted work to the public by sale or other

transfer of ownership, or by rental, lease, or lending:

(4) im the case of literary, musical, dramatic, or

choreographic works, pantomimes, and motion

pectures and other audiovisual works, to perform the

copyrighted work publicly; and

(5) im the case of literary, musical, dramatic, or

choreographic works, pantomimes, and pictorial,

graphic or sculptural works, including the individual

images of » motion picture or other audiovisual work,

to display the copyright work publicly.

Sda

Appendix B

With respect to Acuff-Rose’s claim for interference with

business relationships, Tennessee common law provides that

“(Oj}ne’s business is entitled to protection ‘from tortious

interference by a third person who, in interfering therewith, is not

acting in the exercise of some right, such as the right to compete for

business.’ ” Lann v. Third National Bank, 198 Tenn. 70, 72, 277

S.W.2d 439, 440 (1955). To prevail on such a claim, the plaintiff

must show malice, ill will, or wrongful motive. Jd. See also

Testerman v. Tragesser, 789 S.W.2d 553, 556-57 (Tenn. App. 1989)

(citing Lann). Plaintiff alleges that it has lost benefits flowing from

its copyright monopoly. Like the copyright infringement claim,

violation of the state law claim rests on a finding of unauthorized

copying. “In both cases, it is the act of unauthorized publication

which causes the violation. The enjoyment of benefits from

derivative use is so intimately bound up with the right itself that is

could not possibly be deemed a separate element... .” Harper &

Row, 723 F.2d at 201. In addition, the fact that the state law cause of

action requires proof of intent does not necessarily preclude a

finding of preemption. The Second Circuit concluded in Harper &

Row that:

[T]he fact that cross-appellants pleaded

additional elements of awareness and

intentional interference, not part of a copyright

infringement claim goes merely to the scope of

the right; it does not establish qualitatively

different conduct on the part of the infringing

Id. Since the claim is equivalent to rights established by § 106 the

cause of action is preempted by federal law. See also, Gemcraft

Homes, Inc. v. Sumurdy, 688 F. Supp. 289, 295 (E.D. Tex. 1988)

(holding that plaintiff's claim for tortious interference with

SSa

Appendix B

contractual relations is preempted by § 301); Pacific & Southern

Co., Inc. v. Satellite Broadcast Networks, Inc., 694 F. Supp. 1565,

1572-73 (N.D.Ga. 1988) (same); McNabb Bennett & Associates

Inc. v. Terp Meyers Architects, No. 85-C-8792, (N.D. Ill. June 19

1986) (available on Westlaw) (same).

The question about whether § 301 preempts an

y Tennessee

tort for interference with prospective business advantage is

trickier. The plaintiff has not cited any Tennessee case in which

Even assuming arguendo that interference with

; prospective

business advantage constitutes a separate tort under Tennessee law,

such a cause of action is nevertheless preempted by federal law. As

claim, this second tort is equivalent to the rights specified in 17

— 106 and thus is preempted by federal law as well. See e.g,

otown Record Corp. v. George A. Hormel & Co., 657 F. Supp.

1236, 1240 (C.D. Cal. 1987) (holding that plaintiff's claim for

tortious intereference with prospective business advantage ji

preempted by § 301). osha

s/ Thomas A. Wiseman

THOMAS A. WISEMAN, JR.

CHIEF JUDGE

56a

Appendix B

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

3:90-0524

ACUFF-ROSE MUSIC, INC.

LUTHER R. CAMPBELL a/k/a Luke Skyywalker,

CHRISTOPER WONGWON a/k/a Fresh Kid Ice, MARK ROSS

a/k/a Brother Marquis, DAVIS HOBBS a/k/a Mr. Mixx, p/k/a

THE 2 LIVE CREW and LUKE SKYY WALKER RECORDS

ORDER

For the reasons stated in the accompanying Memorandum, the

Motion for Summary Judgment made by defendants 2 Live Crew

and Luke Skyywalker Records against plaintiff Acuff-Rose Music,

Inc. is granted pursuant to Rule 56 of the Federal Rules of Civil

Procedure. 2 Live Crew’s rendition of “Prety Woman” is a parody

of the original “Oh, Pretty Woman” that constitutes fair use under

17 U.S.C. § 107 of the Copyright Act, 17 U.S.C. §§ 101-914

(1982). See, e.g., Fisher v. Dees, 794 F.2d 432, 436 (9th Cir. 1986).

The two Tennessee state law claims for interference with

business relations and interference with prospective business

advantage for the performance and distribution of a copy of “Oh,

Pretty Woman” are preempted by 17 U.S.C. § 301.

IT IS SOORDERED.

s/ Thomas A. Wiseman

THOMAS A. WISEMAN, JR.

CHIEF JUDGE

STa

APPENDIX C — COMPLAINT FILED JUNE 18, 1990

WITH EXHIBITS

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

NASHVILLE, TENNESSEE

Case No. 3 900524

ACUFF-ROSE MUSIC, INC.

Plaintiff,

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

p/k/a

THE 2 LIVE CREW

and

LUKE SKYYWALKER RECORDS,

Defendants.

JURY DEMAND

JUDGE WISEMAN

COMPLAINT

This is an action for copyright infringement and tortious

interference with business relationships and prospective business

advantage. In support of its complaint, Plaintiff states:

58a

Appendix C

PARTIES

1. Plaintiff Acuff-Rose Music, Inc., is a Tennessee

corporation. Plaintiff maintains offices and does business in the

Middle District of Tennessee.

2. Defendants Luther Campbell, a/k/a Luke Skyywalker,

Christopher Wongwon, a/k/a Fresh Kid Ice, Mark Ross, a/k/a

Brother Marquis, and David Hobbs, a/k/a Mr. Mixx, on

information and belief are residents of the State of Florida.

3. These individuals make up a “rap” music group known

professionally as The 2 Live Crew. The group does business and

may be found in the Middle District of Tennessee.

4. Defendant Skyywalker Records is a corporation organized

under the laws of the State of Florida, with its principal place of

business in Miami, Florida. Skyywalker Records does business

and may be found in the Middle District of Tennessee.

JURISDICTION AND VENUE

5. The jurisdiction of this Court is invoked pursuant to 28

U.S.C. §§ 1338, 1331, and 1332 and the doctrine of pendant

jurisdiction.

6. Venue lies in this district pursuant to 28 U.S.C. § 1400(a).

FACTS

7. Roy Orbison and William Dees were the co-authors of an

original musical work entitled “Oh, Pretty Woman.”

8. The musical work “Oh, Pretty Woman” contains subject

59a

Appendix C

matter copyrightable under the laws of the United States.

9. Roy Orbison and William Dees assigned their ri

. ghts in

Oh, Pretty Woman” to Acuff-Rose Music, Inc. in 1964.

10. Acuff-Rose’s predecessor registered “Oh, Pretty

Woman for copyright protection on August 26, 1964, under

11. The copyright registration in “Oh, Pretty Woman” was

acquired by Opryland USA Inc. in 1985.

12. Plaintiff has complied with all of the requirements of the

“Oh, Pretty Woman.”

13. “Oh, Pretty Woman” was a hit when it was first recorded

and has remained a popular work. Plaintiff receives frequent

requests to license “Oh, Pretty Woman,” and the revenues from

domestic and foreign licensing have been and continue to be

substantial. Plaintiff has zealously protected the copyright in “Oh,

Pretty Woman” and has only granted licenses that were consistent

with good taste and that furthered the value of the copyright.

License requests are evaluated for their consistency with

Plaintiff’s long range plans for exploitation of the copyrighted

work. Requests for licenses that either are not consistent with good

dead en Mupaenge te Setue velas of the copyeight we

14. “Oh, Pretty Woman” has been frequently recorded and

widely disseminated both by Plaintiff’s predecessors in interest

= by Plaintiff's licensees. Defendants had access to “Oh, Pretty

oman.”

60a

Appendix C

15. On July 5, 1989, Defendants wrote a letter to Plaintiff,

requesting a license to create a derivative work from “Oh, Pretty

Woman” for an upcoming album. The work was to be performed,

manufactured, and distributed, both live and on commercially

available record albums, tapes, and compact discs. On information

and belief, various other uses were contemplated, including, but

not limited to, distribution of the work as a single and as a music

video.

16. On July 17, 1989, Plaintiff informed Defendants by letter

that the license would not be granted. Exhibit A.

17. On or about July 15, 1989, Defendants released a record

album entitled As Nasty As They Wanna Be. The album contained

numerous sexually explicit lyrics.

18. Also on or about July 15, 1989, Defendants released a

record album entitled As Clean As They Wanna Be. This album

contains six of the 18 songs on As Nasty As They Wanna Be. In

addition, As Clean As They Wanna Bz contains four songs that did

not appear on the As Nasty As They Wanna Be album.

19. One of the new songs on As Clean As They Wanna Be isa

derivative work based on Plaintiff's copyrighted work “Oh, Pretty

Woman.”

20. Both the album cover and the label copy list the title of

the song as “Pretty Woman” and state that it was “Written By: Roy

Orbison and William Dees” and published by “Acuff-Rose

(BMI).” A copy of the label information from the compact disc

copy of As Clean As The Wanna Be is attached as Exhibit B.

21. The music used on the song “Pretty Woman is

substantially similar to “Oh, Pretty Woman” in melody. In

6la

Appendix C

addition, the first verse of “Pretty Woman” is substanti imi

to the first verse of “Oh, Pretty Woman”. The nso Cpa

lyrics created by Defendants for “Pretty Woman” are disparaging

and therefore not consistent with maintaining the value of the

Pretty Woman” from As Clean As They Wanna Be is attached as

Exhibit C. A copy of “Oh, Pretty Woman,” as recorded by Roy

Orbison, is attached as Exhibit D. A copy of “Pretty Woman,” as it

Vee Clean As They Wanna Be, is attached as

22. Plaintiff recently became aware of the Defendants’

unauthorized use of “Oh, Pretty Woman.” .

23. On information and belief, Defendants are continuin

A gto

make use of “Oh, Pretty Woman,” both in album and related sales

and in live performances.

COUNT I

24. Defendants have willfully infringed and commercial]

exploited Plaintiff's copyright in “Oh, Pretty Woman” by

producing, manufacturing, distributing, and performing an

unauthorized derivative work — their recording of “Pretty

Woman” — that was copied from Plaintiff's copyrighted work,

“Oh, Pretty Woman,” and that was not licensed by Plaintiff.

COUNT II

Interference with Business Relationships

25. By their unlicensed copying and commercial

62a

Appendix C

exploitation of “Oh, Pretty Woman,” Defendants have

intentionally interfered with Plaintiff's business relationships with

“Oh, Pretty Woman.”

COUNT III

Interference with Prospective Business Advantage

26. By their unlicensed copying and commercial exploitation

of “Oh, Pretty Woman,” Defendants have intentionally interfered

with Plaintiff’s prospective business advantage in licensing future

users of “Oh, Pretty Woman.” In addition, Defendants have made

disparaging unlicensed uses of “Oh, Pretty Woman.” These uses

have significantly lessened the value of licensing rights for “Oh,

Pretty Woman”, are not in good taste, and are detrimental to future

attempts by Plaintiff to exploit the work by making it undesirable

to future licensees.

RELIEF

WHEREFORE, Plaintiff prays that:

1. Adate for a trial of the foregoing action be set.

2. Plaintiff be awarded either its actual damages plus

Defendants’ profits that resulted from their infringement of

Plaintiff's copyright or the statutory damages for willful

infringement, whichever is greater.

3. Plaintiff be awarded damages for Defendants’ tortious

interference with Plaintiff's business relationships and with

Plaintiff's prospective business advantage.

63a

Appendix C

4. Defendants forfeit all copies of As Clean As They Wanna

Be, including all masters, tapes or other means by which As Clean

As They Wanna Be can be reproduced.

, . Plaintiff be granted temporary and permanent injunctive

relief.

: 6. Plaintiff be awarded its costs and reasonable attorneys’

ces.

7. Plaintiff receive such other, further relief, both legal and

equitable, as is just.

Respectfully submitted,

Of Counsel: KING & BALLOW

s/ Hal Willis /by EBM By: s/ Elizabeth B. Marney

Hal Willis Alan L. Marx

| E. Andrew Norwood

ACUFF-ROSE MUSIC, INC. Elizabeth B. Marney

F. Casey Del Casino

1200 Noel Place

200 Fourth Ave. North

Nashville, TN 37219

(615) 259-3456

Attorneys for Plaintiff

Acuff-Rose Music, Inc.

64a

Appendix C

EXHIBIT A — LETTER OF JULY 17, 1989

OPRYLAND MUSIC GROUP

ACUFF-ROSE MUSIC, INC.

MILENE MUSIC, INC.

July 17, 1989

Linda Fine

General Manager

SKYWALKER RECORDS

Suite 307

3050 Biscayne Blvd.

Miami, FL 33137

Dear Linda:

In response to your letter of July 5, 1989 regarding “Oh, Pretty

Woman”, I called your office, but was unable to contact you.

I am aware of the success enjoyed by “The 2 Live Crews”, but I

must inform you that we cannot permit the use of 2 parody of “Oh,

Pretty Woman”.

Sincerely,

s/ Gerry Teifer

Gerry Teifer

GT/jmm

65a

Appendix C

EXHIBIT B — ALBUM COVER AND LABEL

INFORMATION

(Omitted Here But Submitted Separately As

Lodging Appendix)

66a

Appendix C

EXHIBIT C — TRANSCRIPTION OF LYRICS AS

RECORDED BY 2 LIVE CREW

PRETTY WOMAN

(OH PRETTY WOMAN) AS RECORDED BY 2 LIVE CREW

PRETTY WOMAN WALKIN’ DOWN THE STREET

PRETTY WOMAN GIRL YOU LOOK SO SWEET

PRETTY WOMAN YOU BRING ME DOWN TO THAT

KNEE

PRETTY WOMAN YOU MAKE ME WANNA BEG PLEASE

OH, PRETTY WOMAN

BIG HAIRY WOMAN YOU NEED TO SHAVE THAT STUFF

BIG HAIRY WOMAN YOU KNOW IBETIT’S TOUGH

BIG HAIRY WOMAN ALL THAT HAIR IT AIN'T LEGIT

*CAUSE YOU LOOK LIKE ‘COUSIN IT’

BIG HAIRY WOMAN

BALD HEADED WOMAN GIRL YOUR HAIR WON'T

GROW

BALD HEADED WOMAN YOU GOTA TEENY WEENY

AFRO

BALD HEADED WOMAN YOU KNOW YOUR HAIR

COULD LOOK NICE

BALD HEADED WOMAN FIRST YOU GOT TO ROLLIT

WITH RICE

BALD HEADED WOMAN HERE, LET ME GET THIS

HUNK OF BIZ FOR YA

YA KNOW WHAT I’M SAYING YOU LOOK BETTER

THAN RICE A RONI

OH BALD HEADED WOMAN

67a

Appendix C

BIG HAIRY WOMAN COME ON IN

AND DON’T FORGET YOUR BALD HEADED FR

IEND

HEY — WOMAN LETTHE BOYS

TWOTIMIN’ WOMAN GIRL YOU KNOW °

RIGHT YOU AIN’T

— WOMAN YOU’S OUT WITH MY BOY LAST

TWO TIMIN’ WOMAN THAT TAKES A LOAD OFF MY

TWOTIMIN’ WOMAN NOW I KNOW THE BABY AIN’T

OH, TWO TIMIN’ WOMAN

OH PRETTY WOMAN

Appendix C

EXHIBIT D—AUDIO TAPE

(Omitted Here But Submitted Separately As

Lodging Appendix)

Appendix C

EXHIBIT E—AUDIO TAPE

(Omitted Here But Submitted Separately As

Lodging Appendix)

_— Ne snk <a Tihnlasilinie Enlace ates mati

70a

SWORN

APPENDIX D — AFFIDAVIT OF OSCAR BRAND

TO JULY 31, 1990 WITH EXHIBITS

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

ACUFF-ROSE MUSIC, INC..,

Plaintiff,

vs.

Skyywalker,

LUTHER R. CAMPBELL, a/k/a Luke

CHRISTOPHER WONGWON a/k/a Fresh Kid Ice, MARK ROSS

a/k/a Brother Marquis, DAVID HOBBS a/k/a Mr. Mixx

p/k/a

THE 2LIVECREW

and

LUKE SKY YWALKER RECORDS,

Defendants.

AFFIDAVIT OF OSCAR BRAND

STATEOFNEW YORK )

COUNTY OF NASSAU )

Comes now the Affiant and makes oath as follows:

1. I am Oscar Brand, a citizen and resident of Great Neck,

New York. I am over the age of 18 years of age.

i Fame. I am the

2. I am the Curator of the Songwriters Hall of

Editor of “Words About Music” for the National Academy of

Tla

Appendix D

Popular Music. I am the Host of “The Felksong Festival,” a radio

program which has broadcast since 1945 op New York’s Public

Radio Station WNYC. I am a composer and writer on subjects in

the field of popular music.

3. I have been on the faculty of Hosftra University and the

New School, lecturing on the subject of folk music, the musical

theatre, andAmerican history as revealed in the popular music of

the day. I have written books, including Songs of ’76, (Evans-

Lippincott), The Ballad Mongers, (Funk and Wagnall:’, The

Bawdy Song, (Grove - Dorchester), Singing Holidays, (Knopf),

When I First Came To This Land, (Dutton), and numerous folios

and song collections. As the artist on 85 LPs, videotapes, CD’s

videotapes, and audiocassetts, [ have recorded many parodies of

popular songs in such albums as “Tell It To The Marines,” “Every

Inch A Sailor,” “Pie In The Sky,” “The Wild Blue Yonder,”

“Laughing America,” “Campaign Songs of the U.S.,” etc. As the

author of books and folios on the subject of folk and popular music,

I have studied the use of parody and satire in American culture. On

my radio shows for CBS, NBC, and WNYC, I have often broadcast

entire programs on the subject of parodies and satires on popular

songs, including a July 29, 1990 airing. As a writer-composer of

popular songs, I have often heard many of my own compositions,

such as “A Guy Is A Guy,” “When I First Came To This Land,” “My

Old Man’s A Sailor,” etc. used as parodies and satires.

5. I have been asked to examine the merits of this case, in

which a parody of the Roy Orbison - William Dees song, “Oh,

Pretty Woman,” has been recorded with the title “Pretty Woman”

by the group called 2 Live Crew. For the reasons cited abve, I

believe I can discuss this subject with complete expertise.

6. In my opinion, both the words and the music of the 2 Live

Crew performance are classic parodies.

T2a

Appendix D

THE MUSIC

7. The Orbison recording of “Oh, Pretty Woman” begins with

a 4/4 drum beat and a very recognizable “bass riff,” (Numbers 1, 2,

3, 4). Attached as Exhibit 1 to my Affidavit is the music chart of

“Oh, Pretty Woman” is F Major. The 2 Live Crew version begins

with the same drum beat and the recognizable riff. The 2 Life Crew

recording is essentially a musical joke, because the riff is followed

by an atypical scraper — a Latin musical device, quite antithetic to

the Orbison musical styling.

8. As in the Orbison recording,-(6, 7, 8, 9, 10), the 2 Live

Crew chorus sings the “Pretty Woman” chorus in the key of A

major. But, the first soloist on the 2 Live Crew recording proceeds

to sing in the key of B major, which, performed against the A major

chorus, gives the song a comic aspect. Next, Orbison sings a

refrain, (11, 12, 13, 14, 15). This refrain is ignored by 2 Live Crew,

who repeat the “Pretty Woman” chorus. Then, in order to remind

the listener that Orbison’s song is the butt of the joke, the “bass riff”

is repeated eight times by the 2 Live Crew musicians.

9. The second soloist for 2 Live Crew stays close to Orbison’s

original melody (19, 20, 21, 22, 23, 24), which makes the altered

lyrics seem even more comic. However, once again, the 2 Live

Crew soloist ignores the refrain, (25, 26, 27, 28, 29). He also

ignores Orbison’s following development (from 30 to 58), instead

repeating the “Pretty Woman” chorus with comic words.

10. At the end of the 2 Live Crew recording, the bass riff is

repeated, subtly changed by the dropping of one measure, another

musical joke Finally, the inappropriate scraper is again added to

the riff to close the song,

11. Jn sum, the music on 2 Live Crew’s“Pretty Woman” uses

just enough material from the Orbison compositi

ae position to create a very

phisticated comic parody of the original song. oo

THE LYRICS

12. The essence of parody is in its i

play on words. Altering th

expected is the key to its humor. The revised form must stay om

enough to the original to make comic the sudden twist — the

substitution of new words for the familiar.

13. It is for that reason, that the popular has

our history been the vehicle for satire and parody. As I poiniet ont

in my book Songs of '76, our first parodies were based on old

— and folk songs. The American Revolution was fought with

writes as well as with guns. Nowadays, our popular music

parodies are more likely to be comic variations of Beatles songs

Dylanesque laments, and, more recently, Rock and Roll “Strike.

offs of such artists as Chuck Berry and Madonna.

14. On July 29, 1990 I broadcast one of man i i

; y public radio

Oe nan the subject of parody, using songs performed at the

Annual Legislative ts’ Association dinner in

Albany, New York. Senator Al D’Amato Sang a parody of the

copyrighted song “It’s A Sin To Tell A Lie.”

“Be sure, it’s true when you write a headline.

It’s a sin to tell a lie.

Many a pol has been broken.

Because The New York Times has spoken.”

— parody featured on the show was a sci-fi version of the

opyrighted song “Casey Jones,” printed with many others in the

Canadian Folksong Bulletin, (June - 1989):

74a

Appendix D

“Come all ye spacemen, if you want to hear,

The story of a great planeteer.

Spacey Jones was the pilot's name,

On a fuel-burning rocket, boys, he won his

fame.”

Merle Travis’ “16 Tons” as parodied as “The Schoolteacher's

Lament,” ending with the words, “I owe my soul to the P.T.A.

15. Parodies have never interfered per re the

original. “The Star Spangled Banner” was altered a times

a for over a century as written by Francis Scott Key.

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.

The original song is used because it is popular and is so

recognizable as to make the alterations more humorous. This is

especially true in the case of Afro-American music, of which “rap”

is a prime example, being derived from the old “talking blues

form. In talking blues and rap music, parody is often used for

protest and satire,. New works are substituted which make fun of

the “white-bread originals an the establishment without, in any

way, compromising the integrity of the original.

16. In the case of 2 Live Crew’s “Pretty Woman” it seems

obvious that 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. They change the lyric “pretty woman’ to

“bald-headed woman,” which is 100% pure parody.

17. Parody often changes the message of the original so that it

becomes bawdy and sexist. The Orbison lyric invites the pretty

75a

Appendix D

woman to “Come with me, baby, be mine tonight.” The 2 Live

Crew version makes the “pretty woman” into a “big hairy woman

who ought to shave that stuff.” And at the close of 2 Live Crew’s

version she turns out to be pregnant.

CONCLUSION

18. 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.

19. On the other hand, 2 Live Crew’s versions, 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.

20. To conclude, it is my belief that parodies such as 2 Live

Crew’s “Pretty Woman” are vital American artifacts. They should

be encouraged and protected. The creative edge which has made

American music the envy of the world would greatly suffer if such

productions as 2 Live Crew's “Pretty Woman” were in any way

curtailed.

s/ Oscar Brand

OSCAR BRAND

Sworn to and subscribed before me

this 31 day of July, 1990.

s/ Michael Drosihn

Notary Public

76a

Appendix D

Respectfully submitted,

s/ Alan Turk

ALAN MARK TURK, S.C. #7342

SANFORD R. ROSS, S.C. #13094

3310 West End Avenue

Fourth Floor

Nashville, TN 37203

(615) 386-9991

ATTORNEYS FOR DEFENDANTS

Tla

Appendix D

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing

has been mailed to Elizabeth B. Marney, Attorney for Plaintiff, 100

Noel Place, 200 FourthAvenue, North, Nashville, TN 3719, this

Ist day of August, 1990.

s/ Alan Turk

ALAN MARK TURK

78a

Appendix D

EXHIBIT 1 — MUSIC CHART OF “OH, PRETTY

WOMAN”

(Omitted Here But Submitted Separately As

Lodging Appendix)

79a

APPENDIX E — AFFIDAVIT OF LUTHER CAMPBELL

SWORN TO JULY 31, 1990 WITH EXHIBITS

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

No. 3900524

JUDGE WISEMAN

ACUFF-ROSE MUSIC, INC.

Plaintiff,

vs.

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

p/k/a

THE 2 LIVE CREW

and

LUKE SKYYWALKER RECORDS,

Defendants.

AFFIDAVIT

STATE OF FLORIDA )

COUNTY OF DADE )

PARTI

COMES NOW the Affiant and makes oath as follows:

80a

Appendix E

1. My name is Luther Campbell, and I am a citizen and

resident of the State of Florida. I am over the age of eighteen (18)

years of age.

2. In May, 1989, I wrote a parody of the song “Oh Pretty

Woman” which I entitled “Pretty Woman”. In writing the parody I

felt it was necessary for the listener to identify the parody version

with the original version written and performed by the late Roy

Orbison. In writing the lyrics to the parody and selecting the

accompanying score it was a critical factor that I determine what

amount of the original work would be included in the parody. I

chose to include the distinctive introduction of the original version

of “Oh Pretty Woman” and the first line of lyrics because I felt this

was sufficent for the listeners to identify the parody with the

original work.

3. The parody “Pretty Woman” was an attempt on my part,

through comical lyrics, to satirize the original work “Oh Pretty

Woman”, written and performed by Mr. Orbison.

PART II

1. On July 5, 1989, Linda Fine, General Manager of Luke

Records f/k/a Luke Skyywalker Records, wrote Gerry [Gary]

Teifer of Opryland U.S.A., Inc., and Acuff-Rose Music, Inc.

Attached as Exhibit A to my Affidavit is a copy of that

correspondence. The purpose of Ms. Fine’s letter was to advise

Acuff-Rose Music, Inc. of the intent of The 2 Live Crew to write

and perform a parody of the song “Oh Pretty Woman” originally

written and performed by Roy Orbison, for which Acuff-Rose

Music, Inc. held the copyright. Ms. Fine enclosed with her

correspondence “a copy of the lyrics, so that you may see their

satirical parody, very similar in vein to what Wierd Al Yankovic

8la

Appendix E

and other satirical artists are doing”. (Exhibit A .

inducated that Acuff-Rose Music, Inc. would be <r

the owner of the song and that the Defendants would pay the

statutory rate for its use. Ms. Fine also indicated that the parody

would be included on a novelty record and that it would by “heard

7 nndcods of thousands of now listeners in their homes”. (Exhibit

2. On July 17, 1989, Gerry Teifer, of the Opryland Music

Group, Inc. and Acuff-Rose, Music, Inc., wrote Linda Fine,

General Manager of Luke Records, formerly known as Luke

Skyywalker Records. Attached as Exhibit B is a copy of that

ep ey enc comprenher dy anen iff, indicated that

you we Cannot permit the use of a parody of

“Oh Pretty Woman”. (Exhibit B) .

4. In June, 1989, Luke Records, formerly known as

Skyywalker Records, released “As Clean As They Want to Be”

which included “Pretty Woman” the parody of “Oh Pretty Woman”

ee in Ms. Fine’s correspondence attached hereto as

5. The Defendants did acknowledge Acuff-Rose Music

Inc.'s ownership interest in the song and the authorship of Mr.

Orbison and Mr. Dees. Attached as Exhibit C is a photocopy of the

compact disc cover which acknowledges these rights of the

Plaintiff. “As Clean As They Want To Be” had moderate success in

the market place, with combined sales of 248,000 units of albums,

cassettes and compact discs. The Plaintiff, as the copyright owner

of “Oh Pretty Woman” is entitled to be compensated the statutory

rate for the combined sales of albums, cassettes and compact discs.

An accounting has been performed by Luke Records, formerly

known as Luke Skyywalker Records, to determine the amount of

money owed to the Plaintiff. This amount is $13,867.56. Attached

&2a

Appendix E

as Exhibit D to my affidavit is a photocopy of a check made

payable to the Plaintiff in the amount of $13,867.56 to compensate

the Plaintiff for the combined sales of “As Clean As They Want To

Be” for the inclusion of the parody “Pretty Woman”. This check

has been tendered to the Plaintiff through the United States District

Court for the Middle District of Tennessee as was originally

offered in Ms. Fine’s correspondence dated July 5, 1989 (Exhibit

A).

6. That all correspondence referenced above was sent to my

legal counsel, Allen L. Jacobi who advised me that since the song

was a parody that it could be released if so desired.

Further the Affiant sayeth not.

s/ Luther Campbell

LUTHER CAMPBELL

SWORN TO AND SUBSCRIBED BEFORE

ME THIS 31 DAY OF JULY, 1990.

s/ Melanie I. Kerr

NOTARY PUBLIC, State of Florida

83a

Appendix E

EXHIBIT A — LETTER OF JULY 5, 1989

July 5, 1989

Gary Teifer

Opryland, USA

P.O. Box 121900

Nashville, TN 37312-1900

RE: “Pretty Woman”

Dear Mr. Teifer: '

As the General Manager of Skyywalker Records, I would like

to inform you of “Two Live Crew’s” desire to do a parody on the

above captioned song.

In the event you have not hear of this grou

p, they are one of the

Sekt Re nn So any way, The LP wlll be

third release vious two ha

poo pre ve gone Gold and are

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 to what Weird Al

Yankovic and other satirical artists are doing.

We intend that all credits (writer & publisher) show your

; y

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

Appendix E

novelty record that will be heard by hundreds of thousands of new

listeners in their homes.

Sincerely,

Linda Fine

General Manager

Encl.

(cassette/lyric sheet)

Appendix E

EXHIBIT B — LETTER OF JULY 17, 1989

OPRYLAND MUSIC GROUP

ACUFF-ROSE MUSIC, INC.

MILENE MUSIC, INC.

July 17, 1989

Linda Fine

General Manager

SKYWALKER RECORDS

Suite 307

3050 Biscayne Blvd.

Miami, FL 33137

Dear Linda:

In response to your letter of July 5, 1989 regarding “Oh, Pretty

Woman”, I called your office, but was unable to contact you.

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”.

Sincerely,

s/ Gerry Teifer

Gerry Teifer

GT/jmm

86a

Appendix E

EXHIBIT C — ALBUM COVER AND LABEL

INFORMATION

(Omitted Here But Submitted Separately As

Lodging Appendix)

87a

Appendix E

EXHIBIT D— PHOTOCOPY OF CHECK

(Omitted Here But Submitted Separately As

Lodging Appendix)

88a

Appendix E

CERTIFICATE OF SERVICE

i the foregoing

I hereb certify that a true and correct copy of goi

has been mailed to Elizab eth B. Marney, Attorney for Plaintiff,

1200 Noel Place, 200 Fourth Avenue, North, Nashville, TN 3721 9,

this 1 day of August, 1990.

s/ Alan Turk

ALAN MARK TURK

APPENDIX F — AFFIDAVIT OF WILLIAM

KRASILOVSKY SWORN TO JULY 31, 1990 WITH

EXHIBIT

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF TENNESSEE

Acuff-Rose Music Inc.

Plaintiff

vs.

Luther R. Cambell a/k/a Luke Skywalker, Christopher Wongwon

a/k/a Fresh Kid Ice, Mark Ross a/k/a Brother Marquis, David

Hobbs a/k/a Mr. Mixx

p/k/a The 2 Live Crew

and Luke Skywalker Records

Defendants

AFFIDAVIT

M. William Krasilovsky, an attorney at law, duly admitted to

practice in the states of New York and Alaska and in federal courts

affirms upon penalty of perjury as follows:

1. Tam an attorney specializing in the field of entertainment law

with a particular emphasis upon music copyright. I have been in

this field since 1953 and attach hereto as Exhibit “A” my resume.

2. Asco-author of the text “This Business of Music” published by

the leading trade paper of the music industry, Billboard, I have

stated the following concerning what is considered to be an

“answer song” in the industry and its relationship to the doctrine of

“fair use:” (pages 142-145)

90a

Appendix F

“The music industry has for many years

contained “answer songs,” which have been

common in the country and western and

rhythym and blues fields — areas that are now

part of the pop music business. An original

song might have been entitled, for example,

“We always Walk in the Rain.” If this should

achieve success, another writer might shortly

thereafter pen a song called, “We Never Walk

in the Rain,” as a humorous reply to an

aftermath of the former song.”

In addition, regarding fair use and parody (page 144):

“Parody and burlesque of a copyrighted work

are dependent on fair use and require caution.

Mad Magazine was upheld by a Federal Circuit

Court of Appeals in its defense of parodies,

such as “The Last Time I Saw Paris,” on the

ground of fair use for humorous critical

purposes. The court’s decision pointed out that

to recall reasonably and evoke in the reader the

original version being parodied. . . .”

Page 143 of “This Business of Music” discusses the precedent of

“Jesus Christ Superstar.” Applying the factors therein designated, |

note most emphatically that 2 Live Crew’s work in the instant

action cannot be considered a substitute for Plaintiff’s work and is

not in competition with Plaintiff's work.

3. Ihave been furnished with authentic copies of the two songs in

question in the instant action, namely, “Oh Pretty Woman,” as

9la

Appendix F

recorded by Roy Orbison, and “Pretty Woman” as reco

, rded

Live Crew and have made the following observations: =

a. The recent recording of 2 Live Crew utilizes an accompanj

or : paniment

throughout and in introductory melodic and lyric segment, which

is designed to and accomplishes, an evocation of “Pretty Woman”

as recorded by Roy Orbison.

b. It proceeds to parody and satirize the original composition in a

true answer song” format by altering the physical attributes of the

subject woman; a pleasing image of feminine beauty becomes

bald-headed, hairy and generally repugnant. A particular note is

the phrase, “the baby ain't mine” which would be completely

inconsistent with the tone and story line of the original song,

c. The widespread publicity and news coverage involving 2 Live

Crew, as well as my personal observation from hearing the

recording, lead me to the conclusion that the intended audience for

the two songs is entirely different. In other words, the record

collector seeking the original composition would be highly

unlikely to purchase or tune into the 2 Live Crew version.

required sou’, appears that the effectiveness of the satire

required some evocation of the original, but that the line betw

infringement and fair use was not exceeded. vm

¢. In presenting this affidavit, I should add the note that I do not

purport to be a musicologist or music critic, and that the opinions

expressed above are not in such claimed capacity.

s/ M William Krasilovsky

M. William Krasilovsky

92a

Appendix F

Sworn to before me

this 31st day of July, 1990

s/ Andrew J. Feinman

Notary Public

Appendix F

EXHIBIT A — RESUME

M. William Krailovsky, Esq.

51 E. 42nd Street, Suite 1601

New York, New York 10017

M. William Krasilovsky is a partner in the firm of Feinman &

Krasilovsky, specializing in music and entertainment matters. In

addition to the estates of Rachmaninoff, Buddy De Silva, Ray

Henderson and Fats Waller the firm also represents or has represented

classic industry figures such as Aretha Franklin, Paul Anka, Burt

Bacharach, Chuck Berry as well as numerous composers, publishers,

recording artists, producers, studios and record companies. Mr.

Krasilovsky has represented Warner Brothers publishing companies

and the American Guild of Authors and Composers, has served as

officer and/or director of a number of music publishing companies

such as Weil-Brecht Harms Music Corporation, Peppamar Music, Inc.,

thus enjoying constant involvement in the negotiation and review of

financial matters of such companies and their dealings with ASCAP

and BMI.

Additionally, Mr. Krasilovsky is co-author of the books, “THIS

BUSINESS OF MUSIC” and “MORE ABOUT THIS BUSINESS OF

MUSIC,” published by Billboard, the leading trade paper of the music

industry. Both books have been recognized as leading reference texts

by the American Library Association and ASCAP, as well as being

respectfully referred to as the “bible” of the music business by working

musicians and others involved in the industry.

Extremely specialized as to copyright law, Mr. Krasilovsky has been

published on this subject by Columbia Teacher’s College, the

the Practicing Law Institute, Yale University, Columbia

ate

Appendix F

University, University of Miami, New York University, Cornell

University, and Brigham Young University.

Within recent years, Mr. Krasiloveky has been engaged as a

expert witness in a number of litigations euiohen law

involving the music industry as a specialist in oon

As such, he was presented by the Record Industry Assoc

America and was quoted favorably on appeal.

; Cornell University in 1947 and Cornell Law

Schoo! is 1949 Me Krasilovsky has been adjunct professor at New

ethics in the entertainment business.

APPENDIX G — ORDER OF THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED

OCTOBER 26, 1992

No. 91-6225

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

ACUFF-ROSE MUSIC, INC.,

Plaintiff-Appellant,

LUTHER R. CAMPBELL, A/K/ALUKE SKY YWALKER, ETAL.,

Defendants-Appellees.

ORDER

BEFORE: NELSON and NORRIS, Circuit Judges; and JOINER,

Senior United States District Judge.

The court having received a petition for rehearing en banc,

and the petition having been circulated not only to the original

panel members but also to all other active judges of this court, and

less than a majority of the judges having favored the suggestion,

the petition for rehearing has been referred to the original hearing

panel.

The panel has further reviewed the petition for rehearing and

concludes that the issues raised in the petition were fully

considered upon the original submission and decision of the case.

Accordingly, the petition is denied.

ENTERED BY ORDER OF THE COURT

s/ Leonard Green

Leonard Green, Clerk

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.