# Petition for Writ of Certiorari — Campbell v. Acuff-Rose Music, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0382%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1994 - **Citation:** 510 U.S. 569 ## Text 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? ii TABLE OF CONTENTS QURIEIOUD INNO oo cc ncccscugeccseunche bauuamunn PIE . oo vc ccecccceenecssesas nua PD og onc ncecscnsoncennsannmneee GENESEO 000 c00tec20se8cenes sheen SUI nn nc nn tunes cninesnsenne Reasons for Granting the Writ ................eee0e I. 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 ae ee ee ee oe oe 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 EE PP ery) oeTTTT TT TTT T Tee 29 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 iv 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 19 19 17 17 la 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 2 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 3 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 Copyright Registration No. EP-191739. 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.” a 4 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 Copyright Act, interfered with the Respondent’s business relations 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. ot 5 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. 6 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 I, 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). 7 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. 9 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 10 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 ll 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.” 12 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. 13 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 14 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 15 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 16 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, 17 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. 18 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 Copyright Act compel such a result. “[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) 19 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. 20 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.” 21 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. 22 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 23 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, 24 667, 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. 25 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 Copyright 69 (1967). '\Copyright law is not 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: 26 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: 27 lessened its money value by showing that it was not worth seeing or hearing, could not give any right of action for infringement of copyright. 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. 29 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 JOINER: Seaior Distriet lodge * the Eaton Dart of Mickigun ee = a $55 “58 ae He i L i : ott fii! ial tt ui fifi iil ina pat fll ehee erat aot ull Te g All il: ins an, siti liad th . Hay aetie iit gb Nishi SFE: i arity agF o82Beeg geese rH. a, oA Hi {PGE Hehe He 4 ili aie i WRATH nity i: af af 1s iF H i aez Bs : lb nee esa at i ee at ince be i HH baer iit iby “ails: £ iB EE fit Hotink Ip itt i Ft en anes Aa ay Hl ‘aH presented Nap one yt he ? Live a? rT ants ie He iat , defendants % ft fit ae HI ' ab a ily ii . fi ui ligt in Hf SEED |i HAHA ray Hae mit ‘2 ae | eli ye a a ci 4a Appendix A Kindly keep in mind that we t this and in no way record by hundreds of thousands of new in their homes. of 2 Live Crew's version of construed as anything but a novelty in a humorous sense be heard San eens ies tersely: Live i t the use continuing brought ce 2s wocgdeaee beep ieee BF erat ate bital id &3 . 4 33° Z08 Re bt jf iets mt “Tlf iy i Heal ag2 u nus Hs ait aie 78 nei Aa : ‘“ ue Us He Hite ATi allt reel te : mE fae au rigae! iS ha We itt dae fahee Wile ee : = ¥ z S k ° 52 $ gs 4 il a i ie Vert |e a yeti) ule ate: if ' as ign Life : sila ik i Hie aed aaa fle eine Pee CHAE ee OGRE Leet i ee a hit ill | mae go i EE ' hie Ei af y: a eS s : | Uibitei je ppd a ig iy Ella be Vi is ne ie Ahi Hi sp 2 Sreliee “Hh. 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Hig eesseeatgenyann Beet 8-33 gilits | acek (ial a ele, EERE 5 ah Hi ui Sit AH Hit af iil jivlerentt granting was for fit basis y commercial prevents this parody and proceedings consistent with this opinion. support the conclusion that 18a Appendix A this case at a private gathering on a not-for-pro It is the blatant! purpose of the derivative work that from being a fair use. We conclude that the district court erred in to defendants. The four factors set summary j not a fair usc. We REVERSE forth in section 107 of the Act 2 Live Crew's use of Acuff- would be a fair use. at ie . HE si ; oiler ' vi Bi eine ol Hts nae : a i ee es in SHE 20° § s § il e age | #8 oes =8 2 § Fae 3! Ly all a ill if i tat fies a ce Th Hf, silinllt a 8a sige. 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Past iH Ui tHe ple lit lee Bi etl | emeie Bea A fen al ey Hl i MIRE : - ip iE hy He ae | h a He age Th i iP 2 3 ait a i i a) a rat ply i ‘ 2 jie tls neil Hal 3 al f 33 Ra Catt ae itn aul ie filial abe AH | ie ii fe Sez But te re ti aL 5383 a BS ee gPeee i ES ih a | a i af a fat H flea ate 1533 i ell yuh al H ali ai une it i za | Hun “ih el fil il £ c bit BR iH 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. v. 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 I. 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 copyright to use the copyrighted material in a reasonable manner without his consent.” Harper & Row, 471 U.S. at 549 (quoting H. Ball, Law of Copyright and Literary Property, 260 (1944)). 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; Wa 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”). ds 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 Copyright: Remedies Without Wrongs, 65 B.U_L. Rev. 923,924 (1985) (Parody “isa 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 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.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. hu 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 Copyright, § 13.0S[A] at 13-78. Since “Oh, Pretty Woman” is a 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 Copyright, § 1.10[D) at 1-87). The Court emphasized that to deny a 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 Sa 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 Copyright, § 13.05[C] at 13-90.12; Fisher, 794 F.2d at 437 (“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 copyright as specified by section 106 in works 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 copyright under this title has the exclusive rights to do 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. v. 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, v. 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 Copyright Registration No. EP- 191739. 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 copyright laws of the United States and now holds the copyright to “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 copyright in “Oh, Pretty Woman.” A transcription of the lyrics of 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 Copyright Infringement 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 copyright licensees who have lawfully licensed the right to use “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) Sa Appendix C EXHIBIT E—AUDIO TAPE (Omitted Here But Submitted Separately As Lodging Appendix) _— Ne snk