Amicus Curiae Brief — Campbell v. Acuff-Rose Music, Inc.

MOTION FILED

FEB 24 U

No. 92-1292

IN THE

Supreme Court of the United 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,

e Petitioners,

ACUFF-RosE Music, INC.,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

MOTION FOR LEAVE TO FILE BRIEF OF AMICI CURIAE

AND BRIEF OF AMICI CURIAE

CAPITOL STEPS PRODUCTIONS, INC.

AND MARK RUSSELL

IN SUPPORT OF PETITIONERS

— —— —

WILLIAM C. LANE *

DAVID CHARLES MASSELLI

MASSELLI & LANE, P.C.

8260 Greensboro Drive

Suite 260

McLean, Virginia 22102

(703) 556-9550

Counsel for Capitol Steps

Production, Inc. and Mark

Russell

* Counsel of Record

WILSON - Eras Printine Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

— — >

—

IN THE

Supreme Court of the United States

OCTOBER TERM, 1992

No. 92-1292

LUTHER R. CAMPBELL, a/k/a LUKE SKYYWALKER,

CHRISTOPHER WONGWON, a/k/a FRESH KID ICE,

MARK Ross, a/k/a BROTHER MARQUIS,

Davip Hosss, a/k/a Mr. MIxx;

professionally known as THE 2 LIVE CREW;

LUKE SKYYWALKER RECORDS,

0 Petitioners,

AcuFF-RosE Music, INC.,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE

IN SUPPORT OF PETITIONERS

Pursuant to Rule 37.2 of this Honorable Court, Capitol

Steps Products, Inc. (“The Capitol Steps“) and Mark

Russell move for leave to submit briefs as amici curiae

in support of the Petitioner in this matter. Their brief

in support of the Petition for a Writ of Certiorari focuses

on the effect which the Sixth Circuit’s holding in this case

will have on the art of musical parody, and provides in-

formation not contained in the Petitioner’s brief regard-

ing the significance of musical parody to the nation. Be-

cause both Mr. Russell and The Capitol Steps are, as

more fully described below, directly engaged in the busi-

ness of musical parody, they will be directly and person-

ally affected by the Court’s decision in this case. Both of

them participated as amici curiae in proceedings before

the Court of Appeals for the Sixth Circuit in this matter.

The Petitioner has granted permission for the filing of

this brief, which consent is on file, but the Respondent

has refused permission.

STATEMENT OF INTEREST

Your amici curiae have a significant interest in the

outcome of this case. The Capitol Steps have been per-

forming, in Washintgon, D.C. and nationally, for eleven

years. Declaration of William A. Strauss, hereinafter

“Strauss Dec.,” attached to the brief as Appendix A, at

77 1-2. A Capitol Steps performance consists primarily

of song parodies, principally of copyrighted songs. The

parodies, which generally have a high current political

content, range in length from a few bars to an entire

parody rendition. Recent examples keyed to the Presi-

dential campaign were “I Wanna Be Your Pander Bear,”

and „I've Taken Stands on Both Sides Now,” satirical

jabs at President Clinton and former President Bush, re-

spectively. Strauss Dec. . 3.

Mark Russell has been performing parody in the Wash-

ington, D.C. area and nationally for nearly 40 years. He

regularly appears on national network radio and televi-

sion. For the past 18 years, he has hosted his own “Mark

Russell Comedy Specials” on public television. Declara-

tion of Alison K. Russell, hereinafter Russell Dec.,“ at-

tached to the brief as Appendix B, at ff 2-3. Along with

spoken material, Mark Russell performs song parodies

to both copyrighted and original melodies. One of his

recent parodies of a copyrighted work is “We’re Just

Wild About Harry” to the tune of “I’m Just Wild About

Harry,” a satirical look at how both President Clinton

and former President Bush invoked the name of Harry

Truman during the campaign. Russell Dec. { 5.

Neither The Capitol Steps nor Mark Russell seek or

obtain licenses from copyright owners for their song

parodies. They take this position for several reasons:

First, both have been advised that their parodies of copy-

righted songs constitute a “fair use” of the copyrighted

materials. Strauss Dec. 14; Russell Dec. J 6. Second,

the very nature of social and political satire makes it

impossible to obtain timely permission. Both perform

topical political satire based on current political events;

the process of asking for and receiving permission would

make it impossible for them to perform the kind of cur-

rent repertoire which their audiences have come to expect.

Russell Dec. J 7; Strauss Dec. J 8.

Finally, asking permission would also be interpreted

by music publishers as a request for an endorsement of

the political ideas contained within the lyrics. Since the

political views contained within a sing are solely those

of the parodist, no endorsement is needed or wanted.

Obviously, there may be copyright holders who do not

endorse the political views expressed in a specific Mark

Russell or Capitol Steps song parody. Moreover, many

copyrights are owned by large corporations with exten-

sive interests and involvement in the national political

process. These corporations are generally reluctant to

appear to endorse a song which embarrasses the current

administration, or a powerful Senator or Member of Con-

gress. A requirement that political parodists obtain, or

attempt to obtain permission before signing or recording

a particular song would make it nearly impossible to

perform political song parody. Russell Dec. J 6-8;

Strauss Dec. M 6-8; Strauss Dec. 4-7.

In view of the above facts, the interest of amici in the

pending proceeding is clear: if it is u lawful for 2 Live

Crew to sing the song parody “Pretty Woman” except

with the permission of the copyright owners to the under-

lying work, then it may be unlawful for the Capitol Steps

to sing “I’ve Taken Stands on Both Sides Now” without

permission from the copyright owner of “I’ve Looked at

Life from Both Sides Now,” or for Mark Russell to sing

„We're Just Wild About Harry” without permission from

the copyright owner of “I’m Just Wild About Harry.” In

fact, under the ruling of the Court below, it would be ef-

fectively impossible for the amici or any of the other hun-

dreds of well known and less well known parodists operat-

ing in the musical genre to perform at all, thereby

impoverishing the world of both music and political dis-

course. Accordingly, amici have a strong and direct in-

terest in the granting of this Petition for a Writ of

Certiorari.

Dated: February 24, 1993

Respectfully submitted,

WILLIAM C. LANE *

DAVID CHARLES MASSELLI

MASSELLI & LANE, P.C.

8260 Greensboro Drive

Suite 260

McLean, Virginia 22102

(703) 556-9550

Counsel for Capitol Steps

Production, Inc. and Mark

Russell

* Counsel of Record

TABLE OF CONTENTS

ee ——

STATEMENT OF INTEREST TT

— 1

I. THE SIXTH CIRCUIT’S INTERPRETATION

Il.

OF THE FAIR USE STATUTORY FACTORS

IS AT ODDS WITH THE SETTLED LAW

REGARDING PARODIES, PARICULARLY

AS THAT LAW HAS BEEN TRADITION-

ALLY FORMULATED IN THE SECOND AND

1 —

A. The Sixth Circuit Erred in Finding That

the Commercial Nature of a Parody Was

Dispositive of the First Statutory Fair Use

Factor

B. The Sixth Circuit Misapplied the Substan-

tiality Test as It Pertains to Song Parodies..

C. The Sixth Circuit Erred in Its Evaluation of

the Fourth Statutory Fair Use Factor by

Creating an Irrebuttable Presumption That

a Commercial Parody Will Harm the Copy-

e .

D. The Argument That a Parody Interferes

With the Right of a Copyright Owner to

Profit From Its Own Parodies Is Without

K

THE FORMULATION OF FAIR USE

ADOPTED BY THE SIXTH CIRCUIT WOULD

MAKE POLITICAL SONG PARODY DAN-

GEROUS OR IMPOSS IBI

— —— — —

APPENDICES

Appendix A: Declaration of William A. Strauss

Appendix B: Declaration of Alison K. Russell.

Appendix C: Declaration of William A. Strauss.

11

13

16

1a

5 8

ii

TABLE OF AUTHORITIES

CASES Page

Berlin v. E.C. Publications, Inc., 329 F.2d 541

II K es OS ae 2,5

Elsmere Music, Inc. v. Nat'l Broadcasting Co., 482

F. Supp. 741 (S.D.N.Y.), af d 623 F.2d 252

ee... q . ee ee 2, 5, 8

Fisher v. Dees, 794 F.2d 482 (9th Cir. 1986) 2, 5, 8

Folsom v. Marsh, 9 F. Cas. 342 (No. 4,901) (CC

D tntniniaannttieetatnnnitaiiih tetas 12

Harper & Row Publishers v. Nation Enterprises,

471 U.S. 589 (1988)))))))))) 6, 7,9, 10, 12

MCA, Inc. v. Wilson, 677 F.2d 180 (2d Cir. 1981) 4

Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992) 10

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

ot GF fe 10

Walt Disney Prod. v. Air Pirates, 581 F.2d 751

(9th Cir. 1978), cert. denied sub nom., ONeill

v. Walt Disney Productions, 489 U.S. 1132

a ere ae ee ee ee 4

STATUTES

K 2, 4, 6, 11

— . NTE 2

r qq ALA 9, 10

TREATISES

3 Nimmer on Copyright § 13.05 [C] (19927 18

10 J. Moore & H. Bendix, Moore’s Federal Practice

5301.04 [4.1] (2d ed. 1988) . 10

OTHER AUTHORITIES

Committee on the Judiciary, House Report No. 94-

1476, 94th Cong., 2d Sess. (1976) ......................... 6

G. Smith, Joe Hill, Salt Lake City, University of

Utah Press (19699 14, 15

V. Lawrence, Music for Patriots, Politicians, and

Presidents, New York, McMillan (19759 15

Wall Street Journal, Sept. 5, 1990 15

IN THE

Supreme Court of the United States

OCTOBER TERM, 1992

No. 92-1292

LUTHER R. CAMPBELL, a/k/a LUKE SKYYWALKER,

CHRISTOPHER WONGWON, a/k/a FRESH KM Ick,

MARK Ross, a/k/a BROTHER MARQUIS,

Davip Hosss, a/k/a MR. MIxx;

professionally known as THE 2 LIVE CREW;

LUKE SKYYWALKER RECORDS,

. Petitioners,

ACUFF-ROSsE Music, INC.,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

BRIEF OF CAPITOL STEPS PRODUCTIONS, INC. AND

MARK RUSSELL AS AMICI CURIAE IN SUPPORT

OF PETITION FOR WRIT OF CERTIORARI

The Capitol Steps and Mark Russell submit this brief

as amici curiae, and respectfully suggest that this Court

grant the Petition, and reverse the decision below.

STATEMENT OF INTEREST

The Statement of Interest is included in the Motion for

Leave to File Brief Amici Curiae in Support of Peti-

tioner, ante.

2

SUMMARY OF ARGUMENT

To prevent copyright protection of intellectual property

from becoming a straightjacket, courts and the Congress

have developed the doctrine of fair use,“ which provides

that copyrighted material may be quoted or copied ver-

batim under certain conditions. “Fair use” status has

regularly been granted to those who quote from copy-

righted works to explain or critique them, and to those

who parody copyrighted works.

The song parodist routinely appropriates more of a

work than other beneficiaries of the fair use doctrine.

Anyone is free to record a copyrighted song by paying

the statutory mechanica! copyright fee. But the parodist

who, by definition, modifies the lyric (and sometimes the

tune) to make his point cannot qualify for the compulsory

license provided by Section 115 of the Copyright Act, 17

U.S.C. 8115. Thus, unless the parody is treated as a

“fair use,” the parodist must obtain permission from the

copyright owner. Such permission is rarely granted.

A line of decisions in the Second and Ninth Circuits—

home to major entertainment centers—have found paro-

dies to be “fair use.” See, e.g., Elsmere Music, Inc. v.

Nat'l Broadcasting Co., 482 F. Supp. 741 (S.D.N.Y.),

affd 623 F.2d 252 (2d Cir. 1980); Fisher v. Dees, 794

F.2d 432 (9th Cir. 1986); Berlin v. E.C. Publications,

Inc., 329 F.2d 541, 545 (2d Cir. 1964). These Second

and Ninth Circuit opinions have for many years consti-

tuted the “bill of rights” for song parodists.

The “fair use” doctrine is now codified at 17 U.S.C.

107, which provides in relevant part that:

Section 115 provides for the so-called “mechanical license,“ which

allows anyone to make a copy of a phonorecord, subject only to the

requirement that pre-set royalties be paid. The right to use Section

115 is limited; while “arrangements” are allowed, “the arrangement

may not change the basic melody or fundamental character of the

work.” 11 U.S.C. § 115(a)(2).

3

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 commercial nature or is for

nonprofi, educational purposes:

(2) the nature of the copyrighted work ;

(3) the amount and substantiality of the portion

used in relation to the copyrighted work as a whole;

and

(4) the effect of the use upon the potential market

for or value of the copyrighted work.

In this case, the Sixth Circuit has found that a song

parody did not constitute fair use. It made this deter-

mination almost entirely on the basis of a finding that

the parody was recorded for a “commercial” purpose. The

test applied by the Sixth Circuit effectively rendered the

four factor test embodied in the statute moot by holding

that the “commercial” nature of the parody was disposi-

tive. In particular, the Court below impermissibly es-

tablished an irrebuttable presumption that the “commer-

cial” purpose of a parody mandated a finding that the

parody caused economic harm to the copyright holder.

This emphasis on “comercial” purpose disregards the

statutory language, and renders the statutory balancing

tests meaningless. The new test applied by the Sixth Cir-

cuit would bring an end to musical political parody as it

has existed since the time of the Revolution, and allows

censorship by copyright of protected speech.

1

ARGUMENT

I. THE SIXTH CIRCUTTS INTERPRETATION OF

THE FAIR USE STATUTORY FACTORS IS AT

ODDS WITH THE SETTLED LAW REGARDING

PARODIES, PARTICULARLY AS THAT LAW HAS

BEEN TRADITIONALLY FORMULATED IN THE

SECOND AND NINTH CIRCUITS.

In any fair use case involving an asserted parody, the

first question is whether the song or other work in ques-

tion is a parody at all. Here the Sixth Circuit answered

that question in the affirmative, as did the District Court.

Petition App. A at 10a; Petition App. B at 42a. Accord-

ingly, those cases in which courts have found that parody

(or another form of fair use) did not exist, including

MCA, Ine. v. Wilson, 677 F.2d 180 (2d Cir. 1981); and

Walt Disney Prod. v. Air Pirates, 581 F.2d 751 (9th Cir.

1978), cert. denied sub nom., O'Neill v. Walt Disney

Productions, 439 U.S. 1132 (1979), are inapposite to this

case. Instead, the Court was required to examine the

statutory fair use factors set forth at 17 U.S.C. § 107,

and such other factors as it found relevant, to determine

whether the parody by 2 Live Crew of Acuff-Roe’s song

was “fair.” This the Court did; however, at least in ap-

plying the first, third, and fourth factors, it established

tests which are both impossible to meet for any commer-

cial song parody, and squarely at odds with those factors

as enunciated by the Second and Ninth Circuits.

The analysis used by the Sixth Circuit, particularly

with respect to the first and fourth statutory fair use

factors, would mandate a finding of no fair use for any

commercial parody, not just 2 Live Crew’s parody of

“Pretty Woman.”

5

A. The Sixth Circuit Erred in Finding That the Com-

mercial Nature of a Parody Was Dispositive of the

First Statutory Fair Use Factor.

The first of the four fair use factors is:

(1) the purpose and character of the use, including

whether such use is of commercial nature or is for

nonprofit educational purposes.

Both the majority and the dissent in this case concluded

that the purpose of the 2 Live Crew song “Pretty

Woman” was parody, and that its character was com-

mercial. Petition App. A. at 10a-12a and App. B. at

40a-42a. The difference between them lies in whether the

fact of commercial use was treated as dispositive for pur-

poses of utilizing this factor: the majority held that once

a commercial use was found, the status of the work as

parody was irrelevant; the dissent held that commercial

use, per se, did not determine whether this fair use factor

was present or absent.

Traditionally, real song parodies, nearly all of which

are done in part for a commercial purpose, are accorded

no less respect for that reason than hypothetical, non-

commercial parodies. Indeed, the cases governing parody

as a fair use all involve commercial parodies. See, e..

Elsmere (parody by commercial television network found

to be fair use) ; Fisher (parody by commercial radio sta-

tion personality found to be fair use) ; and Berlin (parody

by commercial magazine found to be fair use). These de-

cisions by the Second and Ninth Circuits have uniformly

held that the commercial nature of the parody, by itself,

wouid not act to bar the fair use defense.

2 While the Court below discussed balancing purpose and char-

acter, it found “that the admittedly commercial nature of the deriva-

tive work—the purpose of the work being no less important than its

character in the Act’s formulation—requires the conclusion that the

first factor weighs against a finding of fair use.” Petition App. A

at 13a. (Emphasis in original).

6

The Sixth Circuit’s holding below rejects this long-

standing treatment of parody as fair use, and establishes

what amounts to a bright line test—if a parody is pro-

duced for a commercial purpose, it is not a fair use. Had

Congress intended the result reached by the majority, it

could have simply written the first factor as “whether

such use is of commercial nature or is for nonprofit edu-

cational purposes.” It did not do so.

In formulating the statutory fair use doctrine contained

in 17 U.S.C. 8 107, Congress appears to have focused on

the degree to which copyrighted works could be mechan-

ically or electronically copied and used without payment

of royalties. Much of the discussion centered on whether

a schoolteacher could copy portions of a book for use by

her class. The dependent clause referencing the commer-

cial or non-profit nature of a use was added largely to

expand “fair use” to this area, not to limit the prior scope

of fair use treatment:

The Committee has amended the first of the criteria

to be considered“ the purpose and character of the

use”—to state explicitly that this factor includes a

consideration “whether such use is of a commercial

nature or is for non-profit educational purposes.“

This amendment is not intended to be interpreted as

any sort of not-for-profit limitation on educational

uses of copyrighted works. It is an expressd recogni-

tion that, as under the present law, the commercial of

non-profit character of an activity, while not con-

clusive with respect to fair use, can and should be

weighted along with other factors in fair use

decisions.

Committee on the Judiciary, House Report No. 1476,

94th Cong., 2d Sess. 66 (1976).

In reaching its unprecedented decision to afford con-

trolling weight to the commercial character of a parody,

the majority opinion relied heavily on Harper & Row

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

7

Vet nothing in this Court's decision in that case compels,

or even suggests, an intent to overturn prior law on this

point.

The Court weighed three factors in Harper & Row to

determine the nature and character of the challenged use:

the fact that the challenged use entailed news reporting;

the fact that The Nation was a commercial magazine;

and the fact that it had “the intended purpose of sup-

planting the copyright holder’s valuable right of first

publication.” Jd. at 562. (Emphasis in original.) It was

clearly this last fact, and not the second, which tilted this

Court’s decision on the first fair use factor toward Har-

per & Row: “In evaluating character and purpose we

cannot ignore The Nation’s stated purpose of scooping

the forthcoming hardcover and Time abstracts.” Id. By

contrast, in this case, no such intention to supplant or

“scoop” the original melody of “Oh, Pretty Woman” has

been found on the record of this case, or has even been

alleged.

B. The Sixth Circuit Misapplied the Substantiality

Test as It Pertains to Song Parodies.

The third statutory factor is:

(3) the amount and substantiality of the portion

used in relation to the copyrighted work a as

Whole.

The use of this statutory factor in the case of parody

is, as the dissent has recognized, “problamatical.” Peti-

tion App. A at 29a. A parody, by its nature, must “con-

jure up” a sufficient portion of the copyrighted work to

be recognizable as parody.

In the specific case of song parodies, the Second Circuit

has endorsed a view of the “substantiality” factor which

differs markedly from the restrictive view of the majority

opinion in this case:

[T]he concept of “conjuring up” an original came

into the copyright law not as a limitation on how

8

much of an original may be used, but as a recognition

that a parody frequently needs to be more than a

fleeting evocation of an original in order to make its

humorous point. Columbus Pictures Corp. v. Na-

tional Broadcasting Co., 137 F. Supp. 348 (S.D. Cal.

1955). A parody is entitled at least to “conjure up”

the original. Even more extensive use would still be

fair use, provided the parody builds upon the orig-

inal, using the original as a known element of mod-

ern culture and contributing something new for

humorous effect.

Elsmere Music, 623 F.2d at 253 n.1. Similarly, the Ninth

Circuit has recognized a “special need for accuracy,” in

song parodies, where a change of a few notes can make

the melody unrecognizable, and destroy the intended musi-

cal joke. Fisher v. Dees, 794 F. 2d at 439.

The majority opinion simply makes no sense when ap-

plied to a song parody. While it gives lip service to the

above quotation from Elsmere, it also holds that the use

of a substantial portion of a copyrighted work is evidence

against fair use, and further that:

The qualitative degree of the copying is even more

critical than the quantitative, and we ask what de-

gree of the essence of the original is copied in rela-

tion to its whole. [Citation omitted] We conclude

that taking the heart of the original and making it

the heart of a new work was to purloin a substantial

portion of the essence of the original.

Petition App. A at 15a-16a.

The difficulty with this formulation is that every song

has a recognizable tune. That time constitutes its true

“heart” or “essence.” It is impossible to parody the song

without musically quoting its tune. On the other hand,

according to the majority opinion, once one does quote

this “heart,” one loses (or at least does not win) on this

factor of the fair use test. It appears that such a formu-

lation would cut the “heart” out of the fair use doctrine,

9

insofar as parody is concerned, and once again places the

Sixth Circuit’s formulation of the law squarely at odds

with that enunciated by the Second and Ninth Circuits.

C. The Sixth Circuit Erred in Its Evaluation of the

Fourth Statutory Fair Use Factor by Creating an

Irrebuttable Presumption That a Commercial Par-

ody Will Harm the Copyrighted Work.

The fourth statutory factor is:

(4) the effect of the use upon the potential market

for or the value of the copyrighted work.

This Court has called this forth factor “undoubtedly

the single most important element of fair use.” Harper

& Row, 471 U.S. at 566. Despite the importance of this

factor, the copyright holders presented no evidence that

the petitioners’ parody had any effect on the market for

their copyrighted work.“ But the Court below determined

that there was no need for evidence. Having found that

2 Live Crew’s use of the copyrighted work was “wholly

commercial,” the Court “presume[d] that a likelihood

of future harm to Acuff-Rose exists.” Petition App. A

at 16a.

In reaching this rather startling presumption, the ma-

jority opinion relied upon Harper & Row. However, an

evidentiary presumption, such as that created by this

Court in Harper & Row, has only a limited effect. Under

Fed. R. Evid. 301, “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

On the other hand, 2 Live Crew presented evidence that their

parody did not constitute either a present or future danger to sales

of “Oh, Pretty Woman.” Petitioners made this showing through

the unrebutted affidavits of Oscar Brand and M. William Krasilovsky,

which are attached as Appendices to the Petition. Both experts

testified that the potential customers for the 2 Live Crew parody

and the original Acuff-Rose song are entirely different and distinct.

10

of the risk of nonpersuasion, which remains throughout

the trial on the party on whom it was originally cast.”

The federal courts, through Rule 301, have adopted the

“bursting bubble” approach te presumptions, under which

the presumption vanishes, and has no further probative

effect, once it has been rebutted. 10 J. Moore & H. Bendix,

Moore’s Federal Practice § 301.04(4.-1] (2d ed. 1988).

This Court found its “commercial use“ presumption to

be rebuttable in the very case in which it created that

presumption. In Sony Corp. v. Universal City Studios,

464 U.S. 416, 104 S. Ct. 774 (1984), the Court first said

that, “every commercial use of copyrighted material is

presumptively an unfair exploitation of the monopoly

privilege which belongs to the owners of the copyright.”

464 U.S. at 451. The Court, however, went on to hold

that the presumption had been rebutted by the respond-

ents, through evidence showing that their commercial

video technology had uses which would not unfairly ex-

ploit this privilege. The “commercial use” presumption of

Sony and Harper & Row was not intended to, nor did

it, overrule sotto voce the traditional fair use protection

afforded commercial song parodies.

When the Court of Appeals reversed the District Court

on this issue, it effectively declared the existence of an

irrebuttable presumption that commercial use must al-

ways result in injury to the market for the copyrighted

work.“ This had the effect of collapsing yet another of the

In fact, the other case principally relied upon by the majority

below, Rogers v. Koons, 960 F.2d 301, 312 (2d Cir. 1992), reached a

contrary conclusion. In that case, the Second Circuit expressly rec-

ognized that the nature of the intended audience of even a direct

copy of a work could require that it be treated as a fair use. Ac-

cording to the Court, “fair use permits lyrics or music to be copied

in a literary magazine, but where the same material is published in

a song sheet magazine, purchased for playing and not simply for

reading, it is an unfair use.” 960 F.2d at 312. This distinction is

similar to the conclusion reached by the Petitioners’ expert, Oscar

11

four factors into a simple statement that commercial

benefit is inconsistent with fair use.“ Had Congress in-

tended this simple and simplistic result, it could have

simply stated so.

D. The Argument That a Parody Interferes With the

Right of a Copyright Owner to Profit From Its Own

Parodies Is Without Merit.

A crucial link in the reasoning of the Sixth Circuit

that parodies must always cause economic harm to a

copyright owners was its argument that the 2 Live Crew

parody would impair the market for parodies by the

copyright holder. The core of the Circuit Court’s reason-

ing on this issue was its argument that 1) copyright

owners have rights in derivative works as well as the

original work; and 2) parodies are derivative works;

therefore 3) copyright owners have rights in parodies of

their own work which will be injured by the issuance of

unlicensed parodies. Petition App. A at 17a.

However, the second element of this syllogism is false;

parodies are, under section 107, not derivative works, but

rather “comment” and “criticism” on a work. The weak-

Brand, who concluded that the 2 Live Crew parody was intended for

an entirely different audience than the original work, and could not

“affect the sales or popularity of the Orbison song, except to stimu-

late interest in the original.” Petition App. D at { 19.

5 The Court below actually linked the first and fourth factors and

decided them both on the basis of the presumption. When discussing

the first factor, the Court implied the existence of a factual test

which it later resolved by the presumption of harm:

Therefore, in analyzing the purpose and character of 2 Live

Crew’s use of the copyrighted song, the facts in the record

require that we start from the position that the use is unfair.

We are asked then to consider whether 2 Live Crew met its

burden to rebut the presumption by a defense, we note, requir-

ing the court to be convinced that the “parody does not unfairly

diminish the economic value of the original.”

Petition App. A at 13a.

12

ness of the Court’s formulation can be seen if one sub-

stitutes musical or theatrical criticism for parody. As-

sume that the New York Times writes a criticism of a

copyrighted play. Clearly, this criticism is prepared and

published for commercial purposes, t. e., to sell newspapers

and newspaper advertising. Could it then be said that

the Times review was a copyright infringement because

it unfairly interfered with the author’s right to criticize

his own work? This would truly be a remarkable result;

yet it seems to be the result mandated by the majority’s

opinion.

Of course, a different issue would arise if a reviewer or

parodist simply intended to appropriate the original

work, and this distinction was expressly adopted in Harper

& Row:

As early as 1841, Justice Story gave judicial recog-

nition to the [fair use] doctrine in a case that con-

cerned 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 purposes 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 a use will

be deemed in law a piracy.” Folsom v. Marsh,

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

Harper & Row, 471 U.S. at 550. But this issue does not

arise here, since the majority opinion of the Court below

has already determined 2 Live Crew’s intent to be parody,

not piracy. Petition App. A at 10a.

In summary, a consideration of the statutory factors

with an eye to the nature of parody leads inexorably to

the conclusion that the parody in question was a fair use.

The Sixth Circuit’s contrary conclusion is insupportable

on this record.

13

II. THE FORMULATION OF FAIR USE ADOPTED BY

THE SIXTH CIRCUIT WOULD MAKE POLITICAL

SONG PARODY DANGEROUS OR IMPOSSIBLE.

As the dissent in the Court below pointed out, there

may be factors not listed in the statutory schema which

“merit consideration by the courts in determining when

parody constitutes fair use.” Petition App. A at 33a.

One such factor is that the Sixth Circuit’s decision may,

for all practical purposes, make the art of song parody

impossible—or, at a minimum, very risky. For the rea-

sons set forth in the Statement of Interest, it is virtually

impossible to perform topical, political song parodies if

one seeks permission for the use of copyrighted works.

See Strauss Dec. 1 7; Russell Dec. V 6-9. As Professor

Nimmer has stated, a satire of a copyrighted song, “by

its very nature is unlikely to be the subject of a license

from the author of a serious work. Only by the recogni-

iton of a fair use defense is society likely to reap the

benefit of this socially useful literary genre.” 3 Nimmer

on Copyright § 13.05 [C] (1992). The instant case high-

lights this perceptive conclusion; here a license was re-

quested—the Petitioners offered to pay statutory royalties

—yet the request was refused.

It is also a fact, of which this Court may take note,

that all song parodies—like all songs—that attain popu-

lar currency have some commercial aspect. Today, scores

of companies, groups, and individuals write, perform, and

record political parody songs of copyrighted material, re-

lying on the fair use doctrine for their protection from

claims of copyright infringement. See Petition at 20.

Whenever the song gains more than a purely local audi-

ence, these parodies are presented in part for commercial

purposes. They are played on commercial radio stations,

broadcast on commercial television networks, performed

at concerts for which admission is charged, or recorded

on tapes or dises which are sold to the public. There is

simply no other route into the popular culture than

14

through the marketplace; even were the parodists them-

selves to perform the work gratis, the act of transmitting

this source of political discourse to the public is neces-

sarily suffused with commercialism.

Yet the Sixth Circuit’s opinion appears to say that

anyone performing or recording song parodies for money

must first seek permission. Such a result would destroy

an art form which has existed longer than the nation.

Filed herewith as Exhibit 1 to Appendix C is a recent

Capitol Steps recording, “From Yankee Doodle to Pander

Bear,” in which the group traces the art of song parody

throughout American history.* As musically depicted in

this Exhibit, song parodies have been a staple of Ameri-

can political life since the nation’s beginnings, and have

been used by union organizers, war resisters, war sup-

porters, abolitionists, suffragettes, Whigs, Democrats, Re-

publicans, and many others to express their views on the

polities of the day. “Yankee Doodle,” the “Star Spangled

Banner,” and “The Battle Hymn of the Republic” all

began as song parodies—a placing of new and coniro-

versial words to a then popular song.

The political song is not merely a musical confection;

it is, in the words of I. W. W. songwriter and activist Joe

Hill, an unsurpassed instrument of political dialogue and

organization:

A pamphlet, no matter how good, is never read more

than once, but a song is learned by heart and re-

peated over and over; and I maintain that if a per-

son can put a few cold, common sense facts into a

song and dress them up in a cloak of humor to take

the dryness off them, he will succeed in reaching a

great number of workers who are too unintelligent or

too indifferent to read a pamphlet or an editorial on

economic science.

Letter from Joe Hill to Solidarity (Dec. 12, 1914), cited

in G. Smith, Joe Hill 19 (1969). Professor Smith noted

that:

* Copies of this Exhibit have been lodged with the Court.

15

Joe Hill, parodist and songsmith, was translator and

scribe for the migrant workers and hobos of America,

turning into lyrical expression their everday experi-

ence of disillusionment, hardship, bitterness, and in-

justice. His lyrics, for the most part, are tough,

hard-bitten and scornful. ... Hill wrote the music

for his lyrics in only a few instances, usually setting

his words to popular tunes of the time.

Id. at 15-16."

At the other end of the political speetrum, the Wall

Street Journal has called political song parody, “a time-

honored tradition .. Americans are the kind of people

who appreciate this kind of thing.” Wall Street Journal,

Sept. 5, 1990 at Al4, col. 3. The article discusses numer-

ous song parodies related to the Gulf War (such as

“Bomb, Bomb, Bomb . . . Bomb Bomb Iraq”) which were

recorded and played by disc jockeys on commercial radio

stations.

In modern America, political song parodists continue to

serve the same purpose historian Vera Brodsky Lawrence

ascribed to them during the Civil War:

People on both sides of the battle lines placed great

reliance on the songs, finding in them a source of

strength, courage. hope, much-needed laughter, and

a general escape valve for the unbearable tensions of

their lives.

V. Lawrence, Music for Patriots, Politicians, and Presi-

dents 341 (1975).

Denying parodists the protection of the fair use provision

of the copyright law could force them either to cease

doing what they do, or to continue performing and re-

cording, while seeking the protection of the First Amend-

ment. The former course would musically impoverish the

nation; the latter would produce unnecessary constitu-

7 Excerpts from Joe Hill songs are contained in “From Yankee

Doodle to Pander Bear,” the tape filed as Exhibit 1 to Appendix C.

16

tional litigation, the threat of which would no doubt

deter many a would-be parodist.

2 Live Crew and the amici undoubtedly purvey strik-

ingly different versions of satire and parody. But legal

interpretations which may seem viable when aimed at

unconventional or peripheral behavior must be evaluated

in light of their potential impact on behavior which is at

the heart of the zone of protected political discourse.

However offensive the lyrics of “Pretty Woman” may

strike some, it is not possible to subject them to censor-

ship by copyright without imperiling a vibrant source of

political speech which has flourished since the founding

of the Republic.

CONCLUSION

For the foregoing reasons, and for the reasons set

forth in the Petition for a Writ of Certiroari, this Court

should grant the Petition, and reverse the judgment of

the Court of Appeals in this matter.

Respectfully submitted,

WILLIAM C. LANE *

DAVID CHARLES MASSELLI

MASSELLI & LANE, P.C.

8260 Greensboro Drive

Suite 260

McLean, Virginia 22102

(708) 556-9550

Counsel for Capitol Steps

Production, Inc. and Mark

Russell

Dated: February 24,1993 * Counsel of Record

APPENDICES

2

la

APPENDIX A

IN THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Cincinnati, Ohio

Case No. 91-6225

ACUFF-ROSE Music, INC.,

Plaintiff-Appellunt

v.

LUTHER R. CAMPBELL, et al.,

Defendants-A ppellees

On appeal from a decision of the United States

District Court for the Middle District of Tennessee

DECLARATION OF WILLIAM A. STRAUSS

1. My name is William A. Strauss. I am an officer

and Director of Capitol Steps Productions, Inc., a Vir-

ginia corporation, and the paid, full time artistic director

and co-lyricist for “The Capitol Steps,” the company’s

musical and theatrical troupe. I have been with the

troupe since its inception at a Christmas party in the

U.S. Senate, and have been a director and officer of the

corporation since its formation. I am also an attorney

and a member of the Bar of the District of Columbia.

2. The Capitol Steps have been performing in the

Washington, D.C. area and nationally for eleven years.

The troupe regularly performs on national network radio

and television, including on such shows as “All Things

2a

Considered,” “Nightline” and “Good Morning America,”

and at live shows around the country, including in the

states of the Sixth Circuit. The Capitol Steps produce

and sell recordings of their songs and live performances.

The troupe has performed for, and at the invitation of

President Reagan and President Bush (five times). We

have also performed for Governor Clinton, Senator Gore,

judicial conferences, and probably three quarters of all

current Members of Congress.

3. A Capitol Steps performance consists primarily of

song parodies, principally of copyrighted songs. The

parodies, which generally have a high current political

content, range in length from a few bars to an entire

parody rendition. Recent examples are “I Wanna Be

Your Pander Bear,” and “I’ve Taken Stands on Both

Sides Now,” which are satirical jabs at Governor Clinton

and President Bush, respectively. Song parodies are an

integral part of musical political satire because they pro-

vide musical hooks, puns and other cultural reference

points that add to the humor while making it easier for

audiences to grasp (and remember) the political mes-

sages. Many educators have told us of the usefulness

of our song parodies in high schools and college civies

classes. Government officials have frequently brought vis-

iting foreign officials to the group’s shows as a jovial

way of demonstrating the role of free speech in the

American political process. Before the Soviet collapse,

Capitol Steps songs were broadcast throughout the world

on the Voice of America.

4. The Capitol Steps do not seek or obtain licenses

from copyright owners for two reasons. First, we have

been advised by counsel that our songs constitute a “fair

use” of the copyrighted material we use, and for which

we give full credit to the original authors and com posers.

Second, we have found that, in the business of social or

political satire, obtaining permissions from song publish-

ers is, for all practical purposes, impossible.

3a

5. On one occasion, the producers of a network televi-

sion show, against our advice, tried to get publisher per-

mission to perform seven of our songs. After much time

and discussion, permission was denied in six of the seven

cases.

6. Asking permission for such uses is interpreted by

music publishers as, in effect, seeking their endorsement

of the political ideas contained in our lyrics. Many copy-

rights are controlled by large corporations, such as Sony

or Walt Disney, which have ongoing issues and relation-

ships in Washington. These companies have no interest

in endorsing barbed political satire directed at Members

of Congress, the President, or even the federal judiciary.

Nor do we wish to submit our lyrics to them for censor-

ship. If we do not seek or obtain permission, then the

ideas and lyrics of our songs—g od or bad—are solely

ours. And no one has claimed to be injured in the proc-

ess; in our entire history, no one has ever sued us for

copyright infringement.

7. We have frequentiy been contacted by other politi-

cal parodists around the country who have described how

they do not seek and can not obtain permission from

music publishers for the use of copyrighted works for

the reasons set forth in paragraph 4 and 6 above.

8. In our experience, song parodies cause no real or

discernible harm to song publishers. People who book

Capitol Steps shows, sit in our audiences, or buy our

albums and tapes are interested in political satire, not

in listening to melodies. We have never heard of anyone

booking our show, or buying our albums, in lieu of book-

ing performances or buying albums of the erformers

whose songs we parody. Similarly, it is impossible for

me to imagine someone who would be dissuaded from

buying the original version of “Oh, Pretty Woman” be-

cause he already owned the 2 Live Crew parody of that

song.

4a

9. I have carefully read the opinion issued by the Sixth

Circuit Court of Appeals in this action. Unless this opin-

ion is reconsidered, I would be personally quite fearful

of having The Capitol Steps perform at any location

within the Sixth Circuit, or of permitting our albums

and tapes to be sold in those states. I am also fearful of

having the group appear on national television or radio

shows which are broadcast within that Circuit. Even

more fundamentally, I am fearful that this opinion, un-

less reconsidered, would energize those who for whatever

reason—including distaste for controversial ideas and

opinions—may wish to quash song parodies as a popular

form of political expression.

10. The Capitol Steps only learned that the Sixth Cir-

cuit had reversed the District Court’s decision in the 2

Live Crew case on Tuesday, September 15, 1992, when

we were informed of this fact by our attorney. I also

learned at that time that 2 Live Crew had filed a Petition

for Rehearing. Since we did not know before that date

that a decision had been rendered, it was impossible for

us to file a timely brief in support of the Petition for

Rehearing under the Circuit’s Local Rules. I do not

believe that our filing a brief at this time would prejudice

any party.

I make the foregoing declaration under penalty of per-

jury this 21 day of September, 1992.

/3/ William A. Strauss

WILLIAM A. STRAUSS

5a

APPENDIX B

IN THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Cincinnati, Ohio

Case No. 91-6225

ACUFF-ROSE Music, INC.,

Plaintiff-A ppellant

V.

LUTHER R. CAMPBELL, et al.,

Defendants-A ppellees

On appeal from a decision of the United States

District Court for the Middle District of Tennessee

DECLARATION OF ALISON K. RUSSELL

1. My name is Alison K. Russell. I am Vice President

of DAR, Inc., a Washington, D.C. corporation. I am

also the paid, full-time business manager for the political

satirist, Mark Russell. In addition, I am his wife, and in

a unique position to comment on his career.

2. Mark Russell has been performing in the Wash-

ington, D.C. area and nationally for nearly 40 years. He

regularly appears on national network radio and tele-

vision. For the past 18 years, he has hosted his own

“Mark Russell Comedy Specials” on public television. He

has appeared on nearly every national news show. He is

a regular contributor to “Good Morning America,” and

was a co-star of the NBC show “Real People.”

6a

3. Mark Russell also appears in concert around the

country. In 1992 alone, he will perform nearly 130 shows

in 30 states, including those of the Sixth Circuit. He

has appeared before the American Bar Association, the

National Association of broadcasters, and the Federal

Communications Commission. He has appeared before,

and at the behest of nearly every President and Vice

President since Lyndon Johnson. He has also appeared

at events at the request of former Chief Justice Warren

Burger, numerous members of Congress, presidential can-

didates, governors, and state representatives of both po-

litical parties.

4. Mark Russell traces his start in political satire to

the suggestion of members of Congress and their staffs.

In 1958, he was performing the works of others, includ-

ing Tom Lehrer and Charlie Drew, in the Carrol] Arms

Hotel, in Washington. Since it was the closest bar to the

Hill, it was where many congressmen and their staffs

adjourned at the end of the day. It was here that he

began singing and talking about the events in Congress.

As he wrote in the introduction to his book Presenting

Mark Russell (Everest House Publishers, 1981), “my act

is basically the same as it has been since 1961; only the

names, as they say, have been changed to protect the

retired and deceased.”

5. Along with spoken material, Mark Russell performs

song parodies, to both copyrighted and original melodies.

A current parody of a copyrighted work is We're Just

Wild About Harry” to the tune of “I’m Just Wild About

Harry,” which is a satirical look at how Governor Clinton

and President Bush are invoking the name of Harry

Truman. Another is “The Quest,” a song about Ross

Perot to the tune of “The Impossible Dream.“

6. Mark Russell does not seek or obtain license from

copyright owners for several reasons. First, he has been

advised that his use of copyrighted songs constitutes “fair

use” of the copyrighted materials. Second, the very na-

7a

ture of social and political satire makes it impossible to

obtain timely permission. When, for instance, it is an-

nounced that the Pentagon is spending $600 for the pur-

chase of a screwdriver, it is not possible to wait more

than the few hours necessary to write and memorize

“Wrench for Sale,” to the tune of “Love for Sale.” When

the video tape of the Rodney King beating became known,

it was not possible to wait more than the few hours neces-

sary to write and memorize “On the Streets of LA” to

the tune of “On the Street Where You Live.”

7. It is not possible to wait for permission because at

7 or 8 p.m. on a Friday evening there is no way to get

in touch with someone who might be able to get in touch

with someone from whom permission might be obtained;

the story may not last more than one day—in which case

the exercise of getting permission would be moot; and

because audiences have come to expect comment in song

on the topic of the day from Mark Russell. To wait for

permission means to disappoint the audience—something

a professional performer would try never to do.

8. Asking permission would also be interpreted by

music publishers as a request for an endorsement of the

political ideas contained within the lyrics. Since the po-

litical views contained within a song are Mark Russell’s,

no endorsement is needed or wanted. In his nearly 40-

year career, Mark Russell has never been sued for copy-

right infringement; nor has anyone ever claimed to be

injured by what he has said or sung.

9. I see no real or discernable harm to song publish-

ers from my husband’s performances. People who book

Mark Russell, or purchase a ticket to one of his concerts,

or tune into his television show, do so because they want

to hear what he is saying or singing about the current

political scene. They are less interested in the song he

parodies; other than perhaps some may get the intended

pun. Rather, they are interested in what he is saying

with his lyrics. On the other hand, through the use of

8a

older, non-standard songs, I believe Mark Russell may

have helped reintroduce tunes such as “Put on Your Old

Grey Bonnet,” whose copyright dates back to 1909, when

he parodied it with his “AARP Fight Song.” And I be-

lieve that the parodies may remind the audience that they

always liked the original, and perhaps cause them to pur-

chase it.

10. I have carefully read the opinion issued by the

Sixth Circuit Court of Appeals in this action. I am grate-

ful that Mark Russell has no concerts scheduled within the

Sixth Circuit’s jurisdiction between now and the end of

the year. I am concerned that this opinion compromises

future scheduled appearances within the Sixth Circuit’s

jurisdiction. I am also concerned that this opinion may

cause those colleges and organizations within the Sixth

Circuit’s jurisdiction who have booked Mark Russell to

consider cancelling their contracts rather than take the

chance of becoming embroiled in a legal controversy.

11. I only learned about the Sixth Circuit opinion in

this case last week, through a conversation with Bill

Strauss of The Capitol Steps; prior to that time, I did not

even know that an appeal was pending. I also learned

last week that 2 Live Crew had filed a Petition for Re-

hearing. Since neither Mark Russell nor I knew before

last week that a decision had been rendered, it was im-

possible for him to file a timely brief in support of the

Petition for Rehearing under the Circuit’s Local Rules.

I do not believe that his filing a brief at this time would

prejudice any party.

I make the foregoing declaration under penalty of per-

jury, this 20 day of September, 1992.

/s/ Alison K. Russell

ALISON K. RUSSELL

9a

APPENDIX C

IN THE SUPREME COURT

OF THE UNITED STATES

October Term, 1992

No. 92-1292

LUTHER R. CAMPBELL, a/k/a LUKE SKYYWALKER,

CHRISTOPHER WONGWON, a/k/a FRESH KID ICE,

MARK Ross, a/k/a BROTHER MARQUIS,

Davip Hosss, a/k/a MR. MIxx;

professionally known as THE 2 LVR CREW;

LUKE SKYYWALKER RECORDS,

Petitioners,

vs.

ACUFF-ROosE Music, INC.,

Respondent.

DECLARATION OF WILLIAM A. STRAUSS

1. My name is William A. Strauss. I am an officer

and director of Capital Steps Productions, Inc., and the

full time artistic director and co-lyricist for “The Capi-

tol Steps,” the company’s musical and theatrical troupe.

On September 21, 1992, I executed a declaration which

was attached as Appendix A to the amicus brief filed in

this action by The Capitol Steps and Mark Russell be-

fore the Sixth Circuit Court of Appeals. On September

20, 1992, Allison K. Russell, Mark Russell’s wife and

business manager, executed a declaration which was filed

as Appendix B to that brief. Copies of these declarations

are attached as Appendices A and B, respectively, to the

10a

amicus brief which Mark Russell and we are now filing

with the Supreme Court in this matter.

2. I have also caused to be lodged with the Clerk of

this Court, as Exhibit 1 to this declaration, a recording

produced by The Capitol Steps entitled “From Yankee

Doodle to Pander Bear: A History of American Musical

Parody.” The recording contains excerpts from 66 of our

nation’s most memorable and historically significant musi-

cal parodies. We produced the tape as a tribute to those

who wrote and sang these songs, and as a teaching aid

for teachers of American history in secondary schools and

colleges. I personally researched, collated, and edited

the sung and spoken material documented on this tape,

and know it to be accurately based on reliable and verifi-

able historical sources. (I am familiar with such sources,

having co-authored three books regarding American his-

tory, including Generations: The History of America’s

Future, William Morrow/Quill, 1991.)

I make the foregoing declaration under penalty of per-

jury, this 21st day of February, 1993.

/s/ William A. Strauss

WILLIAM A. STRAUSS