Joint Appendix — Campbell v. Acuff-Rose Music, Inc.

Supreme Court brief1994

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Text

| Cypreme Court, u.S

S i 8. | a

MAY 28 '9*

APPENDIX

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, 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.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

PETITION FOR CERTIORARI FILED JANUARY 25, 1993

CERTIORARI GRANTED MARCH 239, 1993

TABLE OF CONTENTS

Page

Appendix A— Docket Sheet .........cccccccccccees la

Appendix B — Complaint Filed June 18, 1990 With

PL Sh 4GbGhESESCNGN Sh SKE eE deen e cases ene 1Sa

Appendix C— Motionto Dismiss ................6.. 28a

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

EEE cau auesuenendsavestcceceens 30a

Appendix E — Memorandum in Support of Motion to

DE <cspueucbe ¢bNNReedesb 50 cedescceeoess 39a

Appendix F — Motionto Deposit Funds .............. 8la

Appendix G — Affidavit of Luther Campbell Sworn to

es SE EEE Se Coddccccccececvesees 83a

Appendix H — Affidavit of M. William Krasilovsky ’

Sworn to July 31,1990 with Exhibit ............... 93a

Appendix I— Motionto Convert ................005. 99a

Appendix J— Order Allowing DepositofFunds ....... 103a

Appendix K — Response to Motionto Dismiss ........ 105a

Appendix L— Declaration of Earl V.Spielman ........ 138a

Appendix M — Declaration of GeraldE. Teifer ........ 142a

Contents

Appendix N — Defendants’ Supplemental Memorandum

in Support of Motionto Dismiss .............+0055

Appendix O — Motion to Compel Production of

eat (i i‘CSC!O;~™

Appendix O — Memorandum of Law in Support of Motion

to Compal ....ccccvccccccsscscceeseueenneennE

Appendix O — Defendants’ Response to the Plaintiff's

Motion to Compel Filed January 16,1991 ..........

Appendix P— Memorandum Opinion .............--

Appendix Q — Order Granting Partial Summary Judgment

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Appendix S — Supplemental Order Certifying

Interiocutory ApROR) ....ccccccccvccscseseveeses

Appendix T — Order of the United States Court of Appeals

for the Sixth Circuit Denying Interlocutory Appeal ...

Appendix U — Motion for Distribution of Funds or

Permission to File Additional Briefs Filed June 10, 1991

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Appendix V — Motion to Amend Complaint Filed June 10,

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Page

145a

1S56a

183a

27la

274a

295Sa

297a

302a

iil

Contents

Appendix W — Defendants’ Response to Plaintiff's

Motion for Distribution of Funds Dated June 21, 1991

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Appendix X — Order Denying MotiontoAmend .......

Appendix Y — Declaration of Jerry Flowers ...........

Appendix Z — Response to Supplemental Brief on

Damages and New Evidence .....................

Appendix AA — Order Confirming Summary Judgment

Appendix BB — Order to Distribute Funds ............

Appendix CC — Notice of Appeal Filed October 15, 1991

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Appendix DD — Opinion of the United States Court of

Appeals for the Sixth Circuit Filed August 17,1992 ...

Appendix EE — Order of the United States Court of

Appeals for the Sixth Circuit Filed October 26, 1992

Denying Petition for Rehearing EnBanc ...........

Page

316a

320a

321a

328a

335a

337a

339a

342a

APPENDIX A — DOCKET SHEET

U.S. District Court

MIDDLE DISTRICT OF TENNESSEE (Nashville)

CIVIL DOCKET FOR CASE #: 90-CV-524

Filed: June 18, 1990

Acuff-Rose Music v. Campbell, et al

Assigned to: Judge Thomas A. Wiseman, Jr.

Demand: $0,000

Lead Docket: None

Dkt# in other court: None

Jury demand: Plaintiff

Nature of Suit: 820

Jurisdiction: Federal Question

Cause: 17:101 Copyright Infringement

ACUFF-ROSE MUSIC, INC.

plaintiff

Alan L Marx

[COR LD NTC]

Francis J. Del Casino

[COR LD NTC]

Elizabeth B. Marney

[COR LD NTC]

E. Andrew Norwood

[COR LD NTC]

King & Ballow

200 Fourth Avenue, N.

1200 Noel Place

Nashville, TN 37219

(615) 259-3456

2a 3a

Appendix A Appendix A

LUTHER R. CAMPBELL Alan Mark Turk Sanford R. Ross

aka [COR LD NTC] (See above)

Luke Skyywalker Sanford R. Ross [COR LD NTC}

defendant [COR LD NTC}

Health America Corporation LUKE SKY YWALKER RECORDS Alan Mark Turk

3310 West End Avenue defendant (See above)

4th Floor [COR LD NTC}

Nashville, TN 37203 Sanford R. Ross

(615) 386-9991 (See above)

[COR LD NTC]

CHRISTOPHER WONGWON Alan Mark Turk

aka (See above) Date No Proceedings

Fresh Kid Ice [COR LD NTC}

defendant Sanford R. Ross 6/18/90 l COMPLAINT, w/ attached Exhibits

(See above) A-E. (Summons(es) issued) Filing fee

[COR LD NTC} paid in the amount of : $120.00

Receipt # 28267. (ag) [Entry date

MARK ROSS Alan Mark Turk 09/10/91)

aka (See above)

Brother Marquis [COR LD NTC] 7/23/90 2 STIPULATION by Judge Thomas

defendant Sanford R. Ross A. Wiseman Jr. : It is agreed that the

(See above) dfts shall have until close of business

on 8/1/90 to file a responsive pleading

DAVID HOBBS Alan Mark Turk to complaint. (EOD 7/24/90)

aka (See above) (cc: all counsel) (1h) (Entry date

Mr. Mixx [COR LD NTC} 10/16/91}

defendant Sanford R. Ross

(See above) 8/1/90 3 MOTION by defendants to dismiss

{COR LD NTC} (1h) [Entry date 10/16/91)

2 LIVE CREW Alan Mark Turk 8/1/90 4 AFFIDAVIT of Oscar Brand re [3-1]

defendant (See above) (1h) [Entry date 10/16/91]

[COR LD NTC]

Appendix A

Date No _— Proceedings

8/1/90 5

8/3/90 6

8/3/90 7

8/3/90 8

8/15/90 9

8/15/90 10

8/24/90 1]

MEMORANDUM by defendants in

support of motion to dismiss [3-1]

(1h) [Entry date 10/16/91)

MOTION by defendants to deposit

funds in amount of $13,867.56 w/att

Order for same (lh) [Entry date

10/16/92}

AFFIDAVIT of Luther Campbell re

[6-1] (1h) [Entry date 10/16/91)

AFFIDAVIT of M. William

Krasilovsky re [6-1] (1h) [Entry date

10/16/91}

RESPONSE by plaintiff to motion to

deposit funds [6-1] (1h) [Entry date

10/16/91)

MOTION by plaintiff to convert dft's

mtn to dismiss to a mtn for summary

judgment (1h) [Entry date 10/16/91)

ORDER by Judge Thomas A.

Wiseman Jr. granting motion to

deposit funds [6-1] Dfts deposit w/the

court $13,867.56. Court will hold

these funds during the pendency of

this litigation or until such time as the

court determines said funds should be

8/24/90

8/28/90

Appendix A

No _— Proceedings

released. These funds will be

automatically rolled over into an

interest bearing account unless other-

wise ordered by the court. Ordered

that counsel has designated that these

funds be deposited in an interest -

bearing checking account at First

American National Bank, in the name

of the Clerk. Ordered that the clerk

deduct an amount equal to the income

earned and credited to the investment

account for the first 45 days of income

earned and to deposit in the U.S.

Treasury. (EOD 8/24/90) (cc: all

counsel) (1h) (Entry date 10/16/91)

AGREED ORDER by Judge Thomas

A. Wiseman Jr. Ordered that pitf’s

response to motion to dismiss [3-1]

will be due 8/28/90 (EOD 8/27/90)

(cc: all counsel) (1h) [Entry date

10/16/91}

RESPONSE by plaintiff to motion to

dismiss [3-1] w/atts consisting of

copy of Declaration of Gerald E.

Teifer, Declaration of Earl V.

Spielman, etc. (1h) [Entry date

10/16/91]

Date

8/28/90

8/30/90

10/5/90

10/26/90

Appendix A

No Proceedings

DECLARATION of Earl V.

Spielman, att to [13-1] (1h)

{Entry date 10/16/91]

NOTICE by plaintiff of substitution

of substitution of original

declaration of Gerald E. Teifer (cpy

of same att to resp, #13) (1h)

[Entry date 10/16/91]

DECLARATION of Gerald E. Teifer

re [13-1] (1h) [Entry date 10/16/91]

SUPPLEMENTAL MEMORANDUM

by defendants in support of motion

to dismiss [3-1] (1h) [Entry date

10/16/91)

SCHEDULING ORDER Judge

Thomas A. Wiseman Jr., pretrial

conference set for 1:00 8/9/91; jury

trial set for 9:00 8/27/91 (EOD

10/26/90) (cc: all counsel) (1h)

[Entry date 10/16/91)

ORDER by Judge Thomas A

Wiseman Jr. This action is set for trial

on Tuesday, 8/27/91, 9:00 a.m.,

Nashville. If action is to be settled,

the Courtroom Deputy shall be

notified by noon on Friday before the

Date

12/14/90 —

12/14/91

1/4/91

1/10/91

Appendix A

No _— Proceedings

date of trial. If settlement is reached

thereafter resulting in the non-

utilization of jurors, the costs of

summoning jurors may be taxed to the

ptys dependent upon the

circumstances. The requirements set

forth in this order shall also apply to

any future continuances of the above

trial date. (EOD 10/26/90) (cc: all

counsel) (1h) [Entry date 10/16/91]

MOTION by plaintiff to compel

production of documents (1h)

{Entry date 10/16/91]

MEMORANDUM by piaintiff in

support of motion to compel

production of documents [20-1] (1h)

[Entry date 10/16/91]

MOTION by defendants to extend

time to respond to pitf’s mtn to

compel (lh) [Entry date 10/16/91}

AFFIDAVIT of Alan Mark Turk re

[22-1] (1h) [Entry date 10/16/91]

ORDER by Judge A. Wiseman Jr.

granting motion to extend [22-1]

time to respond to mtn to compel to

1/18/91 (EOD 1/10/91) (ce: all

counsel) (lh) (Entry date 10/16/91]

8a 9a

Appendix A Appendix A

Date No Proceedings Date No Proceedings

1/11/91 25 MEMORANDUM OF THE COURT 2/13/91 — Short and Certified Record on Appeal

(EOD 1/14/91) (cc: all counsel) (1h) sent to 6th CCA re [28-1] (1h)

[Entry date 10/16/91) [Entry date 10/16/91)

1/11/91 26 ORDER by Judge Thomas A. 2/13/91 29 MOTION by plaintiff for entry of

Wiseman Jr. For the reasons stated in supplemental order (1h)

accompanying memo, granting [Entry date 10/16/91]

motion to dismiss (summary

judgment) [3-1] pursuant to Rule 56 2/14/91 30 SUPPLEMENTAL ORDER by

of the FRCP. Dft’s rendition of “Pretty Judge Thomas A. Wiseman Jr.

Woman” is a parody of the original granting motion for entry of

“Oh, Pretty Woman” that constitutes supplemental order [29-1] The court

fair use. The two TN state law claims hereby certifies that the Order of

for interference w/business relations 1/14/91 should be appealable

and interference w/prospective pursuant to 28:1292(b). This

business advantage for the supplemental order is entered in

performance and distribution of acpy supplementation and amendment of

of “Oh, Pretty Woman” are the order and memo entered on

preempted. dismissing case 1/14/91 (EOD 2/19/91) (cc: all

(EOD 1/14/91) (cc: all counsel) counsel) (1h) [Entry date 10/16/91)

(1h) (Entry date 10/16/91]

2/19/91 -- TRANSMITTED supplemental

1/16/91 27 RESPONSE by defendants to motion record on appeal to 6th CCA re

to compel production of documents [28-1] enclosing docs #29 & 30

{20-1} (1h) [Entry date 10/16/91) (1h) [Entry date 10/16/91]

2/11/91 28 NOTICE OF APPEAL by plaintiff 2/19/91 31 MEMORANDUM by piaintiff in

from Dist. Court decision [26-2] support of motion for entry of

entered on 1/14/91 (1h) supplemental order [29-1] (1h)

{Entry date 10/16/91) {Entry date 10/16/91]

Date

2/20/91

3/4/91

4/3/91

4/8/91

5/14/91

10a

Appendix A

No _— Proceedings

TRANSCRIPT Order Form for

dates: trans unnecessary for appeal

re [28-1] (1h) [Entry date 10/16/91)

NOTIFICATION by 6th CCA of

Appellate Docket Number 91-5232

(1h) [Entry date 10/16/91)

INFORMATION COPY from 6th

CCA dtd 4/1/91, action is dismissed

for lack of jurisdiction. This dismissal

will have no effect on plit’s pending

petition for permission to appeal

pursuant to 28:1292(b) (1h)

[Entry date 10/16/91)

ORDER from 6th CCA dtd 4/4/91,

petition for leave to appeal is denied

(1h) [Entry date 10/16/91]

MANDATE from 6th CCA dtd

4/25/91, dismissing the appeal

[28-1] for lack of jurisdiction. This

dismissal will have no effect on pitf’s

pending petition for permission to

appeal pursuant to 28:1292(b) (1h)

[Entry date 10/16/91]

RECORD on appeal returned from

6th CCA re appeal [0-0] (1h)

{Entry date 10/16/91]

Date

6/10/91

6/19/91

7/8/91

7/24/91

lla

Appendix A

No _— Proceedings

MOTION by plaintiff for distribution

of funds or permission to file

additional brief (1h)

[Entry date 10/16/91}

MOTION by plaintiff to amend

complaint w/original of same att

(1h) (Entry date 10/16/91)

MEMORANDUM by plaintiff in

support of motion to amend complaint

[35-1] (1h) [Entry date 10/16/91)

REMARK: Case inadvertently

closed. Case reopened this date (1h)

{Entry date 10/16/91]

RESPONSE by defendants to

motion to amend complaint [35-1]

(1h) [Entry date 10/16/91]

RESPONSE by defendant to motion

for distribution of funds [34-1] (1h)

[Entry date 10/16/91]

REPLY by plaintiff to response to

motion to amend complaint [35-1]

(1h) (Entry date 10/16/91)

SUPPLEMENTAL MEMORANDUM

by defendants in opposition to motion

to amend complaint [35-1] (1h)

{Entry date 10/16/91]

Date

8/2/91

8/7/91

8/8/91

9/9/91

9/20/91

12a

Appendix A

No Proceedings

NOTICE of hearing; prtrial conf

cancelled on 1:00 8/9/91; status

conf set on 1:00 8/9/91 (1h)

[Entry date 10/16/91]

NOTICE of offer of judgment by

defendants (1h) (Entry date 10/16/91)

ORDER by Judge Thomas A.

Wiseman Jr. denying motion to

amend complaint [35-1] The

amendment is untimely (EOD

8/9/91) (cc: all counsel) (1h)

[Entry date 10/16/91)

“Supplemental” BRIEF FILED by

plaintiff Acuff-Rose Music on

damages and on new evidence as

requested by the Court during the

status conference held 8-9-91. (ag)

[Entry date 10/16/91)

DECLARATION by Jerry Flowers

in Support of Brief [44-1]. (ag)

[Entry date 10/16/91)

RESPONSE by defendants to

plaintiff's supplemental brief on

damages and new evidence [44-1].

(ag)(Entry date 10/16/91]

Date

9/30/91

10/3/91

10/8/91

13a

Appendix A

No Proceedings

ORDER by Judge Thomas A.

Wiseman Jr.: In accordance with the

Court's 1-14-91 order finding that

the defendants’ musical parody is

protected under the fair use doctrine,

the Court hereby ORDERS that the

sum total of the funds and interest

deposited with the Court pursuant to

FRCP 67 be returned to the

defendants. This is a final order

terminating case from which an

appeal of right lies. It is so Ordered.

(EOD 9-30-91) (cc: all counsel and

Financial Deputy) (ag)

[Entry date 10/16/91]

MOTION by defendants for the

Court to amend its order entered

9-30-91 to reflect that the funds be

payable to Alan Mark Turk. (ag)

ORDER by Judge Thomas A.

Wiseman Jr. granting motion for the

Court to amend its order entered

9-30-91 to reflect the funds be

payable to Alan Mark Turk [48-1].

(EOD 10-9-91) (cc: all counsel and

Financial Deputy) (ag)

{Entry date 10/16/91}

ida 1Sa

Appendix A APPENDIX B — COMPLAINT FILED JUNE 18, 1990

WITH EXHIBITS

Date No Proceedings

IN THE UNITED STATES DISTRICT COURT

10/15/91 50 NOTICE OF APPEAL by plaintiff FOR THE MIDDLE DISTRICT OF TENNESSEE

from Dist. Court decision [47-2] NASHVILLE, TENNESSEE

entered on 9/30/91 (1h)

[Entry date 10/16/91) Case No. 3900524

10/15/91 = RECEIVED filing fee (1h) ACUFF-ROSE MUSIC, INC.

[Entry date 10/16/91]

Plaintiff,

10/16/91 — Short Record on Appeal sent to 6th

CCA re [50-1] (1h) v

10/16/91 ~ REMARK: Service of NOA to Alan LUTHER R. CAMPBELL a/k/a Luke Skyywalker,

Mark Turk & Sanford R. Ross (1h) CHRISTOPHER WONGWON a/k/a Fresh Kid Ice, MARK ROSS

a/k/a Brother Marquis, DAVID HOBBS a/k/a Mr. Mixx

10/28/91 — NOTIFICATION by 6th CCA of

Appellate Docket Number 91-6225 p/k/a

THE 2 LIVE CREW

11/6/91 = TRANSCRIPT Order Form for dates:

trans unnecessary for appeal re (50-1) and

(1h)

LUKE SKYYWALKER RECORDS,

11/6/91 7 Notice of Completion mailed to

6CCA (1h) 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:

16a

Appendix B

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 Ténnessee.

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

17a

Appendix B

matter copyrightable under the laws of the United States.

9. Roy Orbison and William Dees assigned their rights in

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

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

Woman” for copyright protection on August 26, 1964, under

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

acquired by Opryland USA Inc. in 1985.

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

“Oh, Pretty Woman.”

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

and has remained a popular work. Plaintiff receives frequent

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

domestic and foreign licensing have been and continue to be

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

Pretty Woman” and has only granted licenses that were consistent

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

License requests are evaluated for their consistency with

Plaintiff's long range plans for exploitation of the copyrighted

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

taste or would disparage the future value of the copyright are

denied.

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

widely disseminated both by Plaintiff's predecessors in interest

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

Woman.”

18a

Appendix B

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 Be 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

19a

Appendix B

addition, the first verse of “Pretty Woman” is substantially similar

to the first verse of “Oh, Pretty Woman.” The unauthorized new

lyrics created by Defendants for “Pretty Woman” are disparaging

and therefore not consistent with maintaining the value of the

“Pretty Woman” from As Clean As They Wanna Be is attached as

Exhibit C. A copy of “Oh, Pretty Woman,” as recorded by Roy

Orbison, is attached as Exhibit D. Acopy of “Pretty Woman,” as it

appears on the album As Clean As They Wanna Be, is attached as

Exhibit E.

22. Plaintiff recently became aware of the Defendants’

unauthorized use of “Oh, Pretty Woman.”

23. On information and belief, Defendants are continuing to

make use of “Oh, Pretty Woman,” both in album and related sales

and in live performances.

COUNT I

24. Defendants have willfully infringed and commercially

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 wjth Business Relationships

25. By their unlicensed copying and commercial

20a

Appendix B

exploitation of “Oh, Pretty Woman,” Defendants have

intentionally interfered with Plaintiff’s business relationships with

“Oh, Pretty Woman.”

COUNT III

Interference with Prospective Business Advantage

26. By their unlicensed copying and commercial exploitation

of “Oh, Pretty Woman,” Defendants have intentionally interfered

with Plaintiff’s prospective business advantage in licensing future

users of “Oh, Pretty Woman.” In addition, Defendants have made

disparaging unlicensed uses of “Oh, Pretty Woman.” These uses

have significantly lessened the value of licensing rights for “Oh,

Pretty Woman,” are not in good taste, and are detrimental to future

attempts by Plaintiff to exploit the work by making it undesirable

to future licensees.

RELIEF

WHEREFORE, Plaintiff prays that:

1. Adate fora 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.

2la

Appendix B

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.

5. Plaintiff be granted temporary and permanent injunctive

relief.

6. Plaintiff be awarded its costs and reasonable attorneys’

fees.

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.

22a

Appendix B

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 a parody of “Oh,

Pretty Woman”.

Sincerely,

s/ Gerry Teifer

Gerry Teifer

GT/jmm

23a

Appendix B

EXHIBIT B — ALBUM COVER AND LABEL

INFORMATION

(Omitted Here But Submitted Separately As Lodging)

24a

Appendix B

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 IBET IT’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 ROLL IT

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 RICEA RONI

OH BALD HEADED WOMAN

25a

Appendix B

BIG HAIRY WOMAN COME ON IN

AND DON’T FORGET YOUR BALD HEADED FRIEND

HEY PRETTY WOMAN LET THE BOYS

JUMPIN

TWO TIMIN’ WOMAN GIRL YOU KNOW YOU AIN’T

RIGHT

TWO TIMIN’ WOMAN YOU’S OUT WITH MY BOY LAST

NIGHT

TWO TIMIN’ WOMAN THAT TAKES ALOAD OFF MY

MIND

TWO TIMIN’ WOMAN NOW I KNOW THE BABY AIN'T

MINE

OH, TWO TIMIN’ WOMAN

OH PRETTY WOMAN

260 27a

| Appendix B Appendix B

EXHIBIT D—AUDIO TAPE EXHIBIT E—AUDIO TAPE

(Omitted Here But Submitted Separately As Lodging)

= 29a

APPENDIX C — MOTION TO DISMISS hapendia C

IN THE UNITED STATES DISTRICT COURT support of this Motion. The Defendants specificall

FOR THE MIDDLE DISTRICT OF TENNESSEE the Court grant oral argument on this Motion. ——

NASHVILLE DIVISION

Respectful

NO: 3900524 espectfully submitted,

JUDGE WISEMAN

s/ Alan Turk

ORAL ARGUMENT REUSE SSD ALAN MARK TURK, S.C. #7342

SANFORD R. ROSS, S.C. #13094

ACUFF-ROSE MUSIC, INC., 3310 West End Avenue _

Plaintiff, Fourth Floor

Nashville, TN 37203

vs. (615) 386-9991

LUTHER R. CAMPBELL a/k/a Luke Skyywalker, ATTORNEYS FOR DEFENDANTS

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

CERTIFICATE OF SERVICE

a/k/a Brother Marquis, DAVID HOBBS a/k/a Mr. Mixx

I hereby certify that a true and correct copy of the foregoing

p/k/a THE 2 LIVE CREW has been mailed to Elizabeth B. Marney, Attorney for Plaintiff,

1200 Noel Place, 200 Fourth Avenue, North, Nashville, TN 37219,

and this | day of August, 1990.

LUKE SKY YWALKER RECORDS, s/ Alan Turk

Defendants. ALAN MARK TURK

MOTION TO DISMISS

Come now the Defendants, by and through their attorneys, and

move in accordance with Rule 12(b)(6) of the Federal Rules of

Civil Procedure for this Court to dismiss the Plaintiff's Complaint

for failure to state a claim upon which relief can be granted. The

Defendants rely on the Memorandum and Affidavits filed in

30a

APPENDIX D — AFFIDAVIT OF OSCAR BRAND SWORN

TO JULY 31, 1990 WITH EXHIBITS

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

ACUFF-ROSE MUSIC, INC..,

Plaintiff,

vs.

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 2LIVECREW

and

LUKE SKY Y WALKER RECORDS,

Defendants.

AFFIDAVIT OF OSCAR BRAND

STATE OF NEW YORK )

COUNTY OF NASSAU )

Comes now the Affiant and makes oath as follows:

1. Iam Oscar Brand, a citizen and resident of Great Neck,

New York. I am over the age of 18 years of age.

2. Iam the Curator of the Songwriters Hall of Fame. I am the

Editor of “Words About Music” for the National Academy of

3la

Appendix D

Popular Music. I am the Host of “The Folksong Festival,” a radio

program which has broadcast since 1945 on New York's Public

Radio Station WNYC. I am a composer and writer on subjects in

the field of popular music.

3. I have been on the faculty of Hosftra University and the

New School, lecturing on the subject of folk music, the musical

theatre, and American history as revealed in the popular music of

the day. I have written books, including Songs of '76, (Evans-

Lippincott), The Ballad Mongers, (Funk and Wagnalls), The

Pawdy Song, (Grove - Dorchester), Singing Holidays, (Knopf),

When I First Came To This Land, (Dutton), and numerous folios

and song collections. As the artist on 85 LPs, videotapes, CD's

videotapes, and audiocassetts, I have recorded many parodies of

popular songs in such albums as “Tell It To The Marines,” “Every

Inch A Sailor,” “Pie In The Sky,” “The Wild Blue Yonder,”

“Laughing America,” “Campaign Songs of the U.S.,” etc. As the

author of books and folios on the subject of folk and popular music,

I have studied the use of parody and satire in American culture. On

my radio shows for CBS, NBC, and WNYC, I have often broadcast

entire programs on the subject of parodies and satires on popular

songs, including a July 29, 1990 airing. As a writer-composer of

popular songs, I have often heard many of my own compositions,

such as “A Guy Is AGuy,” “When I First Came To This Land,” “My

Old Man's A Sailor,” etc. used as parodies and satires.

5. I have been asked to examine the merits of this case, in

which a parody of the Roy Orbison - William Dees song, “Oh,

Pretty Woman,” has been recorded with the title “Pretty Woman”

by the group called 2 Live Crew. For the reasons cited above, I

believe I can discuss this subject with complete expertise.

6. In my opinion, both the words and the music of the 2 Live

Crew performance are classic parodies.

32a

Appendix D

THE MUSIC

7. The Orbison recording of “Oh, Pretty Woman” begins with

a 4/4 drum beat and a very recognizable “bass riff,” (Numbers 1, 2,

3, 4). Attached as Exhibit 1 to my Affidavit is the music chart of

“Oh, Pretty Woman” in F. Major. The 2 Live Crew version begins

with the same drum beat and the recognizable riff. The 2 Life Crew

recording is essentially a musical joke, because the riff is followed

by an atypical scraper — a Latin musical device, quite antithetic to

the Orbison musical styling.

8. As in the Orbison recording, (6, 7, 8, 9, 10), the 2 Live

Crew chorus sings the “Pretty Woman” chorus in the key of A

major. But, the first soloist on the 2 Live Crew recording proceeds

to sing in the key of B major, which, performed against the A major

chorus, gives the song a comic aspect. Next, Orbison sings a

refrain, (11, 12, 13, 14, 15). This refrain is ignored by 2 Live Crew,

who repeat the “Pretty Woman” chorus. Then, in order to remind

the listener that Orbison’s song is the butt of the joke, the “bass riff”

is repeated eight times by the 2 Live Crew musicians.

9. The second soloist for 2 Live Crew stays close to Orbison’s

original melody (19, 20, 21, 22, 23, 24), which makes the altered

lyrics seem even more comic. However, once again, the 2 Live

Crew soloist ignores the refrain, (25, 26, 27, 28, 29). He also

ignores Orbison’s following development (from 30 to 58), instead

repeating the “Pretty Woman” chorus with comic words.

10. At the end of the 2 Live Crew recording, the bass riff is

repeated, subtly changed by the dropping of one measure, another

musical joke. Finally, the inappropriate scraper is again added to

the riff to close the song.

11. /n sum, the music on 2 Live Crew's“Pretty Woman” uses

33a

Appendix D

just enough material from the Orbison composition to create a very

sophisticated comic parody of the original song.

THE LYRICS

12. The essence of parody is in its play on words. Altering the

expected is the key to its humor. The revised form must stay close

enough to the original to make comic the sudden twist — the

substitution of new words for the familiar.

13. Itis for that reason, that the popular song has throughout

our history been the vehicle for satire and parody. As I pointed out

in my book Songs of '76, our first parodies were based on old

ballads and folk songs. The American Revolution was fought with

re-writes as well as with guns. Nowadays, our popular music

parodies are more likely to be comic variations of Beatles songs,

Dylanesque laments, and, more recently, Rock and Roll “strike-

offs” of such artists as Chuck Berry and Madonna.

14. On July 29, 1990, I broadcast one of many public radio

programs on the subject of parody, using songs performed at the

90th Annual Legislative Correspondents’ Association dinner in

Albany, New York. Senator Al D'Amato sang a parody of the

copyrighted song “It’s ASin To Tell A Lie.”

“Be sure, it’s true when you write a headline.

It's asin totella lie.

Many a pol has been broken,

Because The New York Times has spoken.”

Another parody featured on the show was a sci-fi version of the

copyrighted song “Casey Jones,” printed with many others in the

Canadian Folksong Bulletin, (June - 1989):

34a

Appendix D

“Come all ye spacemen, if you want to hear,

The story of a great planeteer.

Spacey Jones was the pilot’s name,

On a fuel-burning rocket, boys, he won his

fame.”

Merle Travis’ “16 Tons” was parodied as “The Schoolteacher’s

Lament,” ending with the words, “I owe my soul to the P.T.A.”

15. Parodies have never interfered with the popularity of the

original. “The Star Spangled Banner” was altered a thousand times

but persisted for over a century as written by Francis Scott Key.

The sales graph of “Hello, Dolly” didn’t change when it became

“Hello, Lyndon,” and “Hello, Nixon.” Hundreds of popular songs

have been “covered” by parody performances and recordings

without altering their popular appeal or interfering with their sales.

The original song is used because it is popular and is so

recognizable as to make the alterations more humorous. This is

especially true in the case of Afro-American music, of which “rap”

is a prime example, being derived from the old “talking blues”

form. In talking blues and rap music, parody is often used for

protest and satire. New works are substituted which make fun of

the “white-bread” originals an the establishment without, in any

way, compromising the integrity of the original.

16. In the case of 2 Live Crew's “Pretty Woman” it seems

obvious that this anti-establishment singing group is trying to

show how bland and banal the Orbison song seems to them. It’s just

one of many examples of their derisive approach to “white-

centered” popular music. They change the lyric “pretty woman” to

“bald-headed woman,” which is 100% pure parody.

17. Parody often changes the message of the original so that it

becomes bawdy and sexist. The Orbison lyric invites the pretty

35a

Appendix D

woman to “Come with me, baby, be mine tonight.” The 2 Live

Crew version makes the “pretty woman” into a “big hairy woman

who ought to shave that stuff.” And at the close of 2 Live Crew’s

version she turns out to be pregnant.

CONCLUSION

18. There is no question in my mind that the song “Oh, Pretty

Woman” by Roy Orbison and William Dees was intended for Mr.

Orbison’s country music audience and middle-America.

19. On the other hand, 2 Live Crew's versions, which is

unquestionably a comic parody, is aimed at the large black

populace which used to buy what was once called “race” records.

The group’s popularity is intense among the disaffected, definitely

not the audience for the Orbison song. I cannot see how it can affect

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

interest in the original.

20. To conclude, it is my belief that parodies such as 2 Live

Crew’s “Pretty Woman” are vital American artifacts. They should

be encouraged and protected. The creative edge which has made

American music the envy of the world would greatly suffer if such

productions as 2 Live Crew's “Pretty Woman” were in any way

curtailed.

s/ Oscar Brand

OSCAR BRAND

Sworn to and subscribed before me

this 31 day of July, 1990.

s/ Michael Drosihn

Notary Public

—

36a

Appendix D

Respectfully submitted,

s/ Alan Turk

ALAN MARK TURK, S.C. #7342

SANFORD R. ROSS, S.C. #13094

3310 West End Avenue

Fourth Floor

Nashville, TN 37203

(615) 386-9991

ATTORNEYS FOR DEFENDANTS

37a

Appendix D

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing

has been mailed to Elizabeth B. Marney, Attorney for Plaintiff,

1200 Noel Place, 200 Fourth Avenue, North, Nashville, TN 37219,

this lst day of August, 1990.

s/ Alan Turk

ALAN MARK TURK

38a

Appendix D

EXHIBIT 1 — MUSIC CHART OF “OH, PRETTY

WOMAN”

(Omitted Here But Submitted Separately As Lodging)

39a

APPENDIX E — MEMORANDUM IN SUPPORT OF

MOTION TO DISMISS

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

NO: 3 900524

JUDGE WISEMAN

ACUFF-ROSE MUSIC, INC.,

Plaintiff,

vs.

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

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

a/k/a Brother Marquis, DAVID HOBBS a/k/a Mr. Mixx

p/k/a THE 2 LIVE CREW

and

LUKE SKY Y WALKER RECORDS,

Defendants.

MEMORANDUM IN SUPPORT OF DEFENDANTS’

. MOTION TO DISMISS

PREFACE

The Plaintiff has sued the Defendants for copyright

infringement (Count I), interference with business relations

(Count IT), and interference with prospective business advantage

40a

Appendix E

(Count III) for the performance and distribution of a parody of its

original work, “Oh, Pretty Woman.” The Plaintiff has admitted that

the Defendants’ version, “Pretty Woman,” is a parody of the

origina! work. (See Exhibit B to the Affidavit of Luther Campbell.)

This is not a disputed fact. There are not material facts in dispute.

The Defendants are entitled to a judgment on the pleadings, as a

matter of law because the Defendants’ parody of the original work

constitutes “fair use” under 17 U.S.C. Section 107 of the Copyright

Act and therefore does not constitute infringement. Further,

Counts II and III of the Plaintiff's Complaint are clearly preempted

by 17 U.S.C. Section 301 of the Copyright Act. Therefore, as a

matter of law, the Plaintiff’s Complaint fails to state a claim upon

which relief can be granted and should be dismissed.

STATEMENT OF THE FACTS

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 Plaintiff, Acuff-Rose Music, Inc. On August 26,

1964, the Plaintiff registered “Oh, Pretty Woman” for copyright

protection under copyright registration number EP-191739. In

1985, the copyright registration in “Oh, Pretty Woman” was

assigned to Opryland U.S.A.., Inc.

On July 5, 1989, the Defendants, by and through their general

manager, Linda Fine, wrote Gary [sic Gerry] Teifer of Opryland

U.S.A., Inc. and Acuff-Rose Music Group, Inc., advising the

Plaintiff of the intent of the Defendant group, The 2 Live Crew, to

write and perform a parody of the song “Oh, Pretty Woman.” (See

Exhibit A to the Affidavit of Luther Campbell.) The Defendants, by

and through Ms. Fine, advised the Plaintiff that the Defendants

4la

Appendix E

intended to afford the Plaintiff, Mr. Dees, and Mr. Orbison all

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

Pretty Woman” and that the Defendants intended to pay the

statutory rate for the use of said song. (See Exhibit A to the

Affidavit of Luther Campbell.) On July 17, 1989, Gerry Teifer of

Opryland Music Group, Inc. and Acuff-Rose Music Group, Inc.

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.” (See Exhibit B to the Affidavit of Luther

Campbell.)

Despite the refusal by the Plaintiff to permit the parody of

“Oh, Pretty Woman,” the Defendants included same in its musical

compilation, released in 1989, entitled “As Clean They Want To

Be.” The Defendants, as promised, acknowledged the Plaintiff's

ownership of the song and the authorship by Mr. Orbison and Mr.

Dees. (See Exhibit C to the Affidavit of Luther Campbell.) The

Defendants have moved, in accordance with Rule 67 of the Federal

Rules of Civil Procedure, to deposit into Court as payment to the

Plaintiff all monies due and owed for all sales of albums, cassettes,

and compact discs at the statutory rate provided by law. (See

Exhibit D to the Affidavit of Luther Campbell.)

STATEMENT OF THE LAW

1. THE DEFENDANTS ARE ENTITLED TOAJUDGMENT

ON THE PLEADINGS.

The Defendants have moved in accordance with Rule 12(b)(6)

of the Federal Rules of Civil Procedure for the Court to dismiss the

Plaintiff's cause of action for “failure to state a claim upon which

relief can be granted.” Rule 12(b) provides in part:

42a

Appendix E

_.. If on a motion asserting the defense

numbered (6) to dismiss for failure of the

pleading to state a claim upon which relief can

be granted, matters outside the pleading are

ted to and not excluded by the court, the

motion shall be treated as one for summary

judgment and disposed of as provided in Rule

56, and all parties shall be given reasonable

opportunity to present all material made

pertinent to such a motion by Rule 56.

Rule 56(c) of the Federal Rules of Civil Procedure provides in

part:

“ __ The judgment sought shall be rendered

forthwith if the pleadings, depositions,

answers to interrogatories, and admissions on

file, together with the affidavits, if any, show

that there is no genuine issue as to any material

fact and that the moving party is entitled to a

judgment as a matter of law.”

The Defendants have filed Affidavits with the Court of two expert

witnesses: Oscar Brand and William Krasilovsky. The Defendants

have also filed the Affidavit of the Defendant Campbell, the author

of the parody. These Affidavits establish that the Defendants’

parody of the Plaintiff's song, “Oh, Pretty Woman” constitutes

“fair use” under 17 U.S.C. Section 107, of the Copyright Act. The

Plaintiff, by and through its own agent, has admitted that the

Defendants’ version of “Oh, Pretty Woman,” “Pretty Woman,” is a

parody. (See Exhibit B to the Affidavit of Luther Campbell.)

43a

Appendix E

The Defendants concede that the Court in considering the

Defendants’ Motion must draw all reasonable inferences from the

Plaintiff's Complaint. Walker Process Equipment, Inc. v. Ford

Machinery and Chemical Corp., 382 U.S. 172, 174-175 (1965);

United States v. New Wrinkle, Inc., 342 U.S. 371, 376 (1952). In

short, on a motion to dismiss for failure to state a claim under Rule

12(b)(6) of the Federal Rules of Civil Procedure, “the allegations

of the complaint should be construed favorably to the pleader.”

Scheur v. Rhodes, 416 U.S. 232, 236 (1974).

The Defendants respectfully assert that the despite this

standard, the Plaintiff's Complaint fails to state a cause upon

which relief may be granted. The Complaint filed June 18, 1990,

alleges that 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

taste or would disparage the future value of the copyright are

denied.” (Complaint, paragraph 13.)

The Plaintiff attached as Exhibit C to the Complaint a

transcription of the lyrics of “Pretty Woman” from As Clean As

They Want To Be. The Plaintiff's allegation that these lyrics “are

not consistent with good taste or would disparage the future value

of the copyright” is unfounded.

The Complaint attaches as Exhibit A the letter from Gerry

Teifer, the Plaintiff's agent, that acknowledges that the

Defendants’ version of “Oh, Pretty Woman,” “Pretty Woman,” is a

parody. (Complaint, paragraphs 16) The Plaintiff admits that the

Defendants did acknowledge their ownership interest on both the

thu 45a

Appendix E Appendix E

cover and label copy of As Clean As They Want To Be and the COUNT II

authorship of Mr. Orbison and Mr. Dees. (Complaint, paragraph

20) The Complaint alleges that: Interference with Business Relationships

The music used on the song “Pretty Woman” is 25. By their unlicensed copying and

substantially similar to “Oh, Pretty Woman” in commercial exploitation of “Oh, Pretty

melody. In addition, the first verse of “Pretty Woman,” Defendants have intentionally

Woman” is substantially similar to the first interfered with Plaintiff's business

verse of “Oh, Pretty Woman.” The relationships with copyright licensees who

unauthorized new lyrics created by Defendants have lawfully licensed the right to use “Oh,

for “Pretty Woman” are disparaging and Pretty Woman.”

therefore not consistent with maintaining the

value of the copyright in “Oh, Pretty Woman.” COUNT III

Interference with Prospective Business Advantage

(Complaint, paragraph 21)

26. By their unlicensed copying and

The Plaintiff's Complaint contains three separate counts. commercial exploitation of “Oh, Pretty

These counts are as follows: Woman,” Defendants have intentionally

interfered with Plaintiff's prospective business

COUNTI advantage in licensing future users of “Oh,

Pretty Woman.” In addition, Defendants have

Pretty Woman.” These uses have significantly

24. Defendants have willfully infringed lessened the value of licensing rights for “Oh,

and commercially exploited Plaintiff's Pretty Woman,” are not in good taste, and are

producing, manufacturing, distributing, and exploit the work by making it undesirable to

performing an unauthorized derivative work future licensees.

— their recording of “Pretty Woman” — that

was copied from Plaintiff's copyrighted work, (Complaint, paragraphs 24-26)

“Oh, Pretty Woman,” and that was not licensed ‘

by Plaintiff. The Plaintiff failed to allege any other allegations in their

dou

Appendix E

Complaint. The Complaint, as filed, should be dismissed because it

fails to state a cause of action upon which relief can be granted as a

matter of law. The Defendants version of “Oh, Pretty Woman,”

“Pretty Woman,” does not constitute copyright infringement as

alleged by the Plaintiff because said version constitutes fair use

under 17 U.S.C. Section 107 of the Copyright Act. The Plaintiff's

allegations that the Defendants interfered with their business

relationships and interfered with their prospective business

advantage are preempted by their claim under the Copyright Act, in

that 17 U.S.C. Section 301, preempts these allegations by the

Plaintiff. However, even if the Copyright Act is not the Plaintiff's

exclusive remedy, arguendo, then the Plaintiff's Complaint still

fails to state and/or even infer how the Defendants have interfered

with the business relationship and/or prospective business

advantage of the Plaintiff.

2. THE DEFENDANTS’ VERSION OF “OH, PRETTY

WOMAN” IS PROTECTED BY ARTICLE I, SECTION 8 OF

THE UNITED STATES CONSTITUTION AND THE

Article I, Section 8 of the United States Constitution

empowers Congress to “promote the progress of science and the

useful arts ... by securing for limited times to authors

_., the exclusive right to their . . . writings.” The Supreme Court

has stated that “the economic philosophy behind the copyright

clause . . .is the conviction that encouragement of individual effort

by personal gain is the best way to advance public welfare.” Mazer

v. Stein, 347 U.S. 201, 219 (1954). The authors interest 1s

subordinated to this end. United States v. Paramont Pictures, Inc.,

334 U.S. 131, 158 (1948).

A conflict exists between the public’s constitutional right of

47a

Appendix E

reasonable access to copyrighted materials and the copyright

owner’s statutory privilege under the copyright law. The

Constitution grants copyright owners no rights. It merely

authorizes Congress, under severe limitations, to enact copyright

legislation. At most, the copyright owner has a statutory privilege,

not a constitutional right. A long and uninterrupted line of cases

hold unequivocally that, apart from common law protection for

unpublished works, copyright protection is completely and solely

a statutory matter and that copyright is only a privilege or a

franchise. It is settled law that all copyright is simply a creature of

statute, wholly a matter of congressional discretion to grant or to

withhold. Kraft v. Kahn, 117 F.2d 579, 580 (2nd Cir. 1941); Keene

v. Wheatley, 14 F.Cas. 180, 185 (No.7644)(C.C.E.D.Pa. 1861) as

cited in The Constitutional Dimension of “Fair Use” in Copyright

Law. 50 Notre Dame Lawyer 790, 791 and 792 (June, 1975).

The Supreme Court has consistently held that “the immediate

effect of our copyright law is to secure a fair return for an ‘author's’

creative labor but the ultimate aim is, by this incentive, to stimulate

artistic creativity for the general public good.” Fox Film Corp. v.

Doval, 286 U.S. 123, 127 (1932), as quoted in Sony Corp. of

America v. Universal Studios, Inc., 104 §.Ct. 774, 783 (1984).

Thus, the American copyright system rests on the fundamental

premise that vindication of the economic interest of the authors

will ultimately maximize the information available to the public.

The Defendants have moved to deposit into Court. The

statutory amount of money the Plaintiff is entitled to under the

payment by the Defendants satisfies their obligation to the Plaintiff

under the Copyright Act.

48a

Appendix E

3. THE DEFENDANTS’ VERSION OF “OH, PRETTY

WOMAN” CONSTITUTES FAIR USE UNDER 17 U.S.C.

SECTION 107 OF THE COPYRIGHT ACT.

The Fair use doctrine was discussed at length in Triangle

Publications, Inc. v. Knight-Ridder NewsPapers, Inc., 626 F.2d

1171. 1174 (Sth Cir. 1980), wherein the United States Court of

Appeals for the Fifth Circuit described the history of “fair use.”

The Court described fair use as “a ‘rule of reason’ fashioned by

Judges to balance the author’s right to compensation for his work,

on the one hand, against the public’s interest in the widest possible

dissemination of ideas and information, on the other.” Sobel,

supra, note 1, at 51 quoting Latman, Fair Use of Copyrighted

Works 5 (Sen. Comm. On Judiciary Study No. 141960). “The fair

use doctrine frequently serves to eliminate potential conflicts

between copyright and free speech.” See Denicola, Copyright and

Free Speech: Constitutional Limitations on the Protection of

Expression, 67 Calif.L.Rev. 283, 299, 303-04 (1979).

In Meeropol v. Nizer, 560 F.2d 1061, 1068 (2nd Cir. 1977), the

United States Court of Appeals, Second Circuit, defined fair use as:

A Privilege in others than the owner of the

reasonable manner without his consent,

notwithstanding the monopoly granted to the

owner by the copyright. The doctrine offers a

means of balancing the exclusive right of a

dissemination of information affecting areas of

universal concern, such as art, science, history,

or industry. Wainwright Securities, Inc. v. Wall

Street Transcript Corp., 558 F.2d 91 (2d Cir.

1977).

-" ~ ee

49a

Appendix E

In codifying the concept of fair use, Congress made clear that

it in no way intended to depart from Court-created principles or to

short-circuit further judicial development:

The bill endorses the purpose and general cope

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 explanation 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. Ist Sess. 62 (1975) (Senate Report).

The 1976 Copyright Act instructs Courts to consider four

factors which had been previously judicially created. The statute

indicates that these four factors are not necessarily exhaustive. 17

U.S.C. Section 107 provides in part:

.. . 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

50a

Appendix E

commercial nature or is for nonprofit

educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the

portion used in relation to the

copyrighted work as a whole; and

(4) the effect of the use upon the

potential market for or value of the

copyrighted work.

In Triangle Publications, Inc. v. Knight-Ridder Newspapers,

Inc., 626 F.2d 1171, 1175 (Sth Cir. 1980), the Court held that:

The statute does not indicate how much weight

is to be accorded each factor, but since the

statutory formulation is simply a restatement

of the case law, it is appropriate to look to the

cases for guidance. Our research indicates that

of these four factors, Courts have generally

placed most emphasis on the fourth factor, the

effect of the use upon the potential market for

or the value of the copyrighted work. See, e.g.,

Time, Inc. v. Bernard Geis Assocs., 293 F.Supp.

130(S.D.N.Y. 1968); 3 Nimmer on Copyright,

section 13.05(b)(4), at 13-54 (1978)

(indicating that the fourth factor is the most

important and citing a host of cases).

In Fisher v. Dees, 794 F.2d 432, 436 (9th Cir. 1986), the

United States Court of Appeals for the Ninth Circuit held that the

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question whether or not a parody constituted “fair use” is a matter

of law for the Court, not a question of fact for the jury. In Fisher, the

composers of “When Sunny Gets Blue” brought copyright

infringement action and unfair competition action against

composer of “When Sonny Sniffs Glue” and others. The United

States District Court for the Central District of California, William

Duffy Keller, Judge, granted summary judgment in favor of

defendants, and plaintiffs appealed. The Ninth Circuit Court of

Appeals held that: (1) the parody was fair use of the original; (2) the

parody was not immoral or obscene so as to deprive it of fair use

protection; (3) the defendants did not engage in unfair

competition; and (4) the parody could have no defamatory or

disparaging meaning to those who heard it. The Ninth Circuit, in

affirming the trial court’s granting of summary judgment, held:

We dispose of this last argument first, because

it is completely undercut by the Supreme

Court’s recent decision in Harper & Row

Publishers, Inc. v. Nation Enterprises, __ U.S

__, 105 S.Ct. 2218, 85 L.Ed.2d 558 (1985). The

Court held in that case that “[flair use is a

mixed question of law and fact”, id. at 2331,

and that “[w]here the District Court has found

facts sufficient to evaluate each of the statutory

factors,” an appellate court may conclude as a

matter of law-without remanding for further

fact finding- “ ‘that [the challenged use] do([es]

not qualify as a fair use of the copyright

work,’ ” id. (quoting Pacific & Southern Co. v.

Duncan, 744 F.2d 1490, 1495 n.8 (llth Cir.

1984), cert. denied, __ U.S. __, 105 S.Ct. 1867,

85 L.Ed.2d 161 (1985)).

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No material historical facts are at issue in this

case. The parties dispute only the ultimate

conclusions to be drawn from the admitted

facts. Because, under Harper & Row, these

judgments are legal in nature, we can make

them without usurping the function of the jury.

Whether or not the Defendants’ parody constitutes fair use under

17 U.S.C. Section 107 of the Copyright Act is a question of law for

this Court to determine.

The Courts have adopted two models of the fair use doctrine.

The first model is the economic model. The “economic” model of

fair use posits that socially valuable use of an original should be

limited only when the taking would result in significant

commercial harm to the holder of the copyright. According to this

model, the availability of the fair use defense should turn on two

key determinations: (1) the social value of the challenged use, and

(2) the use’s tendency to substitute for the copyright holder’s actual

or potential commercial exploitation of the original. Under this

analysis, a Court should find uses that are of even minimal social

value to be fair if they do not substitute for exploitation of the

original work. The Parody Defense to Copyrighted Infringement:

Productive Fair Use After Betamax, 97 Harv.L.Rev. 1395, 1398

and 1399 (1984).

Because most Courts have accepted this utilitarian rationale

for fair use, they have usually extended the defense to uses that

appropriate originals yet are themselves creative — that is,

“productive” uses. Whereas “reproductive” uses merely

appropriate originals without adding a socially valuable creative

element, the traditionally recognized types of productive use

reportage, biography, criticism, and parody — build upon, and

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Appendix E

perform functions different from, the originals they appropriate.

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

253 (2nd Cir. 1989). Because productive uses are presumed to be

socially beneficial, Courts often pay little attention to the value of a

use itself and instead focus on whether the use competes for the

market of the original. Meeropol v. Nizer, 560 F.2d 1061 (2nd Cir.

1977). The Parody Defense to Copyrighted Infringement:

Productive Fair Use After Betamax, 97 Harv.L.Rev. 1395, 1399

and 1400 (1984). :

A second model has been judicially created, referred to as the

reasonableness model. Perhaps because it seems intuitively unfair

to allow others to appropriate substantially from an author’s

Original work, many Courts have disallowed the extensive or

verbatim takings even when the copyright holder has not shown a

likely threat to the economic value of his copyright. Thus,

productive use cases — particularly parody cases — have been

influenced by this second model of fair use. According to this

model, the amount of the original incorporated into the challenged

use — a consideration codified in the Copyright Act as the “amount

taken” factor — is the central criterion for determining whether the

use is reasonable and they whether it is fair. Courts tend to find

extensive takings unreasonable particularly when the contested

use is parody, because the parodist has derisively turned the

Original author’s work against him. Perhaps in reaction to the

parodist’s affront, Courts have come to focus their analysis in

parody cases on the amount of the original taken by the parodist.

The Parody Defense to Copyrighted Infringement: Productive

Fair Use After Betamax, 97 Harv.L.Rev. 1395, 1400 (1984).

The preoccupation with the amount take, however, is

inconsistent with the goal of American copyright protection:

maximizing public access to information by providing economic

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Appendix E

incentives for original creation. If a parody builds upon but does

not commercially supplant an original, it produces a net increase in

the amount of information available to society therefore, a purely

economic analysis would require the protection of such a parody.

The Parody Defense to Copyrighted Infringement: Productive

Fair Use After Betamax, 97 Harv.L.Rev 1395, 1400 (1984).

The Defendants expert witness, Oscar Brand, has, in his

Affidavit, compared the music and lyrics of the Plaintiff's “Oh,

Pretty Woman” to the Defendants’ parody, “Pretty Woman.” (See

Affidavit of Oscar Brand, paragraphs 7-17.) Mr. Brand states: “In

sum, the music on 2 Live Crew’s ‘Pretty Woman’ uses just enough

material from the Orbison composition to create a very

sophisticated comic parody of the original song.” Mr. Brand

further states: “The essence of parody is in its play on words.

Altering the expected is the key to its humor. The revised form

must stay close enough to the original to make comic the sudden

twist — the substitution of new words for the familiar.” (See

Affidavit of Oscar Brand, paragraphs 11-12.)

The Defendants have alleged and the Plaintiff has admitted

(see Exhibit B to the Affidavit of Luther Campbell) that the

Defendants version of “Oh, Pretty Woman” is a parody. In Cliffs

Notes v. Bantam Doubleday Dell Pub. Group, 886 F.2d 490, 493

(2nd Cir. 1989), the United States Court of Appeals, Second

Circuit, held:

We start with the proposition that parody is a

form of artistic expression, protected by the

First Amendment. For example, the Supreme

Court has held that the First Amendment bars

recovery “for the tort of intentional infliction

of emotional distress by reason of” publication

of satire “without showing in addition that the

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Appendix E

publication contains a false statement of fact

which was made with ‘actual malice.’” Hustler

Magazine v. Falwell, 485 U.S. 46, 108 S.Ct.

876, 882 99 L.Ed.2d 41 (1988). Similarly, our

decisions have recognized “the broad scope

permitted parody in First Amendment law.”

Groucho Marx Prod., Inc. v. Day and Night

Co., 689 F.2d 317, 319 n. 2 (2nd Cir. 1982); see

Elsmere Music, Inc. v. National Broadcasting

Co., 623 F.2d 252, 253 (2nd Cir. 1980) (per

curiam) (“in today’s world of often unrelieved

solemnity, copyright law should be hospitable

to the humor of parody. . .”). We have stated the

“general proposition” that “parody and satire

are deserving of substantial freedom — both as

entertainment and as a form of social and

literacy criticism.” Berlin v. E.C. Publications,

Inc., 329 F.2d 541, 545 (2nd Cir.) (emphasis in

original), cert. denied, 379 U.S. 822, 85 S.Ct.

46, 13 L.Ed.2d 33 (1964). See generally Note,

Trademark Parody: A Fair Use and First

Amendment Analysis, 72 Va.L.Rev. 1079

(1986).

In Fisher v. Dees, 794 F.2d 432, 439 (9th Cir. 1986), the

United States Court of Appeals for the Ninth Circuit argued that in

determining whether or not the parodist exceeded the amount that

could be taken from the original work depended upon the medium

of the respective work. The Court acknowledged “When the

medium involved is a comic book, a recognizable caricature is not

difficult to draw, so that an alternative that involves less copying is

more likely to be available than if a speech, for instance, is

parodied.” The Court concluded that:

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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. See

id. 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 his original expression.” /d. We think

the balance tips in the parodists’ favor here. In

view of the parody’s medium, its purposes, and

its brevity, it take no more from the original

than is necessary to accomplish reasonably its

parodic purpose.

794 F.2d at 439.

In applying the fair use doctrine to parody, the Court should

modify the previously discussed models and apply a three part

analysis. First, if the Plaintiff proves substantial similarity between

use and original, the Defendants should have the burden of

showing that their use is “productive” — that it falls into one of the

recognized categories of productive fair use or that in some way it

adds to and alters the function of the original work. Second, if the

Defendants establish that their use is productive, the inquiry

should shift to whether there is a substantial possibility that the use

will compete significantly for the market of the original. If the

Plaintiff cannot prove such a possibility, the Court should protect

the use. Third, if there is a substantial possibility of substitution,

the Court should weight the social value of the use against the

countervailing economic disincentive to the author. The Parody

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Appendix E

Defense to Copyright Infringement: Productive Fair Use After

Betamax, 97 Harv.L.Rev. 1395, 1409 (1984).

This Court should apply this three-part approach to the case at

bar. Because parody is one of the traditional categories of

productive use, any parody, including the Defendants’ parody of

the Plaintiff’s copyrighted work, should be presumed productive.

The Court should thus require the Plaintiff to demonstrate potential

or actual commercial substitution of the parody for the original.

The Plaintiff has failed to allege or even infer how the Defendants’

parody will substitute for the original “Oh, Pretty Woman.”

The Defendants, by and through their expert witnesses, have

presented testimony that the Plaintiff's original work, “Oh, Pretty

Woman,” will not be substituted by the Defendants’ parody,

“Pretty Woman.” This testimony is corroborated by simple logic

and observation. William Krasilovsky states “the widespread

publicity and news coverage involving 2 Live Crew, as well as my

personal observation from hearing the recording, lead me to the

conclusion that the intended audience for the two songs is entirely

different. In other words, the record collector seeking the original

composition would be highly unlikely to purchase or tune into the 2

Live Crew version.” (See Affidavit of William Krasilovsky,

paragraph c.) This testimony is corroborated by the Affidavit of

Oscar Brand, which concludes:

18. There is no question in my mind that the

song “Oh, Pretty Woman” by Roy Orbison and

William Dees was intended for Mr. Orbison’s

country music audience and middle-America.

19. On the other hand, 2 Live Crew’s versions,

which is unquestionably a comic parody, is

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Appendix E

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.

The Defendants respectfully assert that no matter which model this

Court adopts, the Defendants’ parody constitutes fair use under 17

U.S.C. Section 107.

4. THE DEFENDANTS’ VERSION OF “OH, PRETTY

WOMAN” IS A PARODY, FOR COMMERCIAL USE WHICH

DOES NOT SUBSTANTIALLY COPY NOR COMPETE WITH

THE PLAINTIFF'S VERSION.

Parody and burlesque, as used here, are interchangeable terms

which refer to humorous works whose humor is derived from a

mocking imitation of other, usually serious, works. Although

parody and burlesque have different technical meanings, what is

crucial to a legal analysis is a common characteristic; both, by

definition, depend for their existence upon the opportunity to copy

other works. It is this characteristic which creates a conflict with

Rationale for Copyright, 11 Connecticut Law Review 615, 616

(Summer 1979).

A literary critic would distinguish parody from burlesque, and

both from their sibling, travesty. Travesty achieves its humor by

putting characters from serious works in ridiculous situations and

exploiting the incongruity of the juxtaposition. Burlesque is more

sophisticated in that it at least imitates the style of the work

59a

Appendix E

burlesqued for the purpose of poking fun by applying the style to

some topical subject other than that of the original work. Parody,

the highest of these arts, focuses on both style and subject matter of

the work imitated, drawing humor and insight from subtle

variations which expose weakness of the original. See D.

MacDonald, parodies 557-53 (1960); Yankwich, Parody and

Burlesque in the Law of Copyright, 33 Can B.Rev. 1139 (1955)

Although these differences are significant to literary scholars,

what is important for a legal analysis is that each kind of humorous

imitation has artistic value and place in literary history. Parody,

Burlesque and The Economic Rationale for Copyright, 11

Connecticut Law Review 615, 616, note 6, (Summer 1979).

A parody cannot succeed unless its audience perceives it

relation to the work parodied. Whether parody is viewed as a form

of criticism or a compliment to the work imitated, it is copying

which makes parody a distinct art form. Because of this, a “parody”

which does not imitate another work, or one which does so poorly,

or one which copies a work unknown to its audience, offers little

humor; it lacks a crucial element, a degree of similarity to the

original which can be seen by the audience. Parody, Burlesque,

and The Economic Rationale for Copyright, 11 Connecticut Law

Review 615, 616 and 617 (Summer 1979).

Although the Courts have insisted that the application of the

fair use doctrine as applied to the issue of parody must be

considered on a case-by-case basis, a historical review of the

application of the four factors of the statutory fair use doctrine in

parody cases will assist the Court.

In Benny v. Loew's, Inc., 239 F.2d 532 (9th Cir. 1956),

affirmed by an equally divided Court Sub. Nom. Columbia

Broadcasting System v. Loew's. Inc., 356 U.S. 43 (1958), the

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Appendix E

Courts held that the half-hour burlesque by Jack Benny of the

movie “Gaslight,” for television constituted a copyright

infringement and granted an injunction. The central determination

in reaching that decision was that the burlesque took substantially

from the original. The Courts held that:

Parodized or burlesqued taking is to be treated

no differently from any other appropriation,

that is, as in all other cases of alleged taking,

the issue becomes first one of fact, i.e. what

was taken and how substantial was the taking;

and if it is determined that there was a

substantial taking, infringement exists.

239 F.2d at 537.

Unfortunately, Mr. Justice Douglas, for unexplained reasons,

disqualified himself in the Gaslight case which resulted in the

United States Supreme Court failing to have a majority opinion

because the remaining eight justices divided equally on the

questions presented to the Court. The result was to leave standing

the decision of the Ninth Circuit which was ambiguous and not

well reasoned. It is apparent, from the opinions, that neither the

trial court nor the Ninth Circuit were amused by Mr. Benny's

attempted parody. The trial court and the Ninth Circuit simply

concluded that the taking was far too substantial to constitute fair

use.

In Columbia Pictures Corp. v. National Broadcasting Co., 137

F.Supp. 348, 350 (S.D.Cal. 1955), the same district judge who sat

in the Loew (Benny) case, the Honorable James M. Carter, held that

the telecast of the burlesque “From Here to Obscurity,” performed

by Sid Ceaser and Imogene Coca on the Show of Shows, did not

6la

Appendix E

infringe the copyright of the producer in the picture “From Here to

Eternity” nor did the telecast constitute an unfair competition as to

such picture. Judge Carter, in Columbia Pictures Corp., held:

With some hesitation, but with the assurance

that there is logic and fairness behind them, as

well as general support in the law, we suggest

these principles:

(a) When the alleged infringing work is of the

same character as the copyrighted work, vix., a

serious work with a taking from another

serious copyrighted work, then the line is

drawn more strictly than when a farce or

comedy or burlesque takes from a serious

copyrighted work or vice versa.

(b) In historical burlesque a part of the content

is used to conjure up, at least the general image,

of the original. Some limited taking should be

permitted under the doctrine of fair use, in the

case of burlesque, to bring about this recalling

or conjuring up of the original.

the theme, the setting, situation and even bare

basic plots without infringement, since such

matters are ordinarily not protectable.

(d) The doctrine of fair use permits burlesque

to go somewhat farther so long as the taking is

not substantial. It may take an incident of the

copyrighted story, a deveioped character

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Appendix E

(subject to the limited right of an author in

certain situations, Loew’s Incorporated v.

Columbia Broadcasting System, Inc., [note 1 ])

a title (subject to right of protection under

unfair competition, Loew's Incorporated v.

Columbia Broadcasting System, Inc., [note

38]) some small part of the development of the

story, possibly some small amount of the

dialogue.

(e) When burlesque takes more than the matter

ordinarily not protected, and referred to above,

it runs a calculated risk, that on all the facts

involved, a trier of fact may find the taking

substantial.

(f) The defense, “I only burlesqued” the

copyrighted material is not per se a defense. To

hold otherwise would seriously jeopardize

rights of property in copyrights and

investments in such works, and would

ultimately seriously damage the prices to be

paid to authors for their literary works...

Judge Carter distinguished his holding in Columbia Pictures Corp.

from his decision in Loew's as foliows:

Unlike Loew’s, here there was a taking of only

sufficient to cause the viewer to recall and

conjure up the original. This is a necessary

element of burlesque. As Dr. Baxter stated at

the trial of Loew's Incorporated v. Columbia

Broadcasting System Inc., the defendant has

Si i i di i wa

me eee eee ee ee ee

——_— — —

63a

Appendix E

taken a small part and then “ ‘[taken] off into

the blue.’ ”

137 F.Supp. at 351.

In Bloom & Hamlin v. Nixon, 129 F. 977, 978 (E.D.Pa. 1903),

the Court held that the singing of the chorus of a copyright song,

“Sammy,” from the “Wizard of Oz” was not an infringement when

sung by one mimicking the star of the show, Lotta Faust. The Court

held that the chorus of the song was “a mere vehicle for carrying

the imitation along” and did not constitute an infringement.

In Berlin v. E.C. Publications. Inc., 329 F.2d 541, 545 (2nd

Cir. 1964), the Plaintiffs alleged that “Mad Magazine” by

compiling a “collection of parody lyrics to 57 old standards which

reflect the idiotic world we live today,” infringed upon the

copyrights held by the original works. 329 F.2d at 543. The parody

lyrics, so that they could be sung, were written in the same meter as

the original lyrics, as illustrated by the parody of “A Pretty Girl Is

Like a Melody” substituted by “Louella Schwartz Describes Her

Malady.” The Court of Appeals affirmed the dismissal by the trial

court of the original song publisher’s claims of infringement. The

Second Circuit specifically held:

We believe in any event that the parody lyrics

involved in this appeal would be permissible

under the most rigorous application of the

“substantiality” requirement. The disparities in

theme, content and style between the original

lyrics and the alleged infringements could

hardly be greater. In the vast majority of cases,

the rhyme scheme of the parodies bears no

relationship whatsoever to that of the originals.

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Appendix E

While brief phrases of the original lyrics were

occasionally injected into the parodies, this

practice would seem necessary if the

defendants’ efforts were to “recall or conjure

up” the originals; the humorous effect

achieved when a familiar line is interposed in a

totally incongruous setting, traditionally a tool

of parodists, scarcely amounts to a

“substantial” taking, if that standard is not to be

woodenly applied. Similarly, the fact that

defendants’ parodies were written in the same

meter as plaintiffs’ compositions would seem

inevitable if the original was to be recognized,

but such a justification is not even necessary;

we doubt that even so eminent a composer as

plaintiff Irving Berlin should be permitted to

claim a property interest in iambic pentameter.

In short, we believe that whatever use was

made of the plaintiffs’ works in this case fell far

short of the “substantial” takings which were

involved in Benny, even if we were to find the

rationale of that opinion persuasive. While the

social interest in encouraging the broad-

gauged burlesque of Mad Magazine is

admittedly not readily apparent, and our

individual tastes may prefer a more subtle

brand of humor, this can hardly be dispositive

here. Cf. Bleistein v. Donaldson Lithographing

Co., 188 U.S. 239, 47 L.Ed. 460 (1903). For, as

a general proposition, we believe that parody

and satire are deserving of substantial freedom

— both as entertainment and as a form of social

65a

Appendix E

and literary criticism. As the readers of

Cervantes’ “Don Quixote” and Swift's

“Gulliver’s Travels” or the parodies of a

modern master such as Max Beerbohm well

know, many a true word is indeed spoken in

jest. At the very least, where, as here, it is clear

that 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.

329 F.2d at 545

In Berlin, supra, the Court emphasized the failure by the

Plaintiffs to “indicate with any degree of particularity the manner

in which [commercial] injury might have been inflicted” and found

that this tended to weaken the Plaintiffs’ claims. The Defendants

direct the Court’s attention to Counts il and III of Plaintiff’s

Complaint. The Plaintiff, in the case at bar, has also failed to state

with any particularity how the Defendants’ use has injured the

Plaintiff.

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

F.Supp. 741 (S.D.N.Y.), affirmed 623 F.2d 252 (2nd Cir. 1989),

held that a skit on the television program “Saturday Night Live”

which, the Court of Appeals described as “poked fun at New York

City’s public relation campaign and its theme song” did not

constitute copyright infringement. The Plaintiffs had alleged that

the parody “I Love Sodom” infringed on their copyright of the song

“I Love New York.” The District Court summarized the nature and

66a 67a

Appendix E Appendix E

the sincerest form of flattery, parody is an

the thrust of the parody:

acknowledgment of the importance of the thing

The song “I Love Sodom,” as well as the sketch

of which it was a part, was clearly an attempt by

the writers and cast of SNL to satirize the way

parodied. In short, the defendant’s version of

the jingle has not in the least competed with or

detracted from plaintiff’s work.

in which New York City attempted to improve

its somewhat tarnished image through the use

of aslick advertising campaign.

Elsmere Music v. National Broadcasting Co., supra, at 747.

The Second Circuit affirmed per curiam “on Judge Goettel’s

thorough opinion”, 623 F.2d at 253; but notwithstanding that

482 F.Supp. at 745.

thoroughness, was moved to append a footnote which reads as

District Judge Goettel rejected the Plaintiff’s argument that

the song “I Love Sodom” and the sketch of which it was a part did

not constitute a valid parody of the “I Love New York” advertising

campaign. 482 F.Supp. at 745 Judge Goettel then said:

Having found that SNL sketch and song validly

parodied the plaintiff’s jingle and the “I Love

New York” advertising campaign in general,

the Court next turns to the important question

of whether such use has tended to interfere with

the marketability of the copyrighted work. See

Meeropol v. Nizer, supra, 560 F.2d at 1070;

Mura v. Columbia Broadcasting System Inc.,

245 F. Supp. 587, 590(S.D.N.Y. 1965). In this

regard, it is clear to the Court that the

defendant’s playing of the song “I Love

Sodom” has not so interfered. The song has not

affected the value of the copyrighted work.

Neither has it had — nor could it have — the

“effect of fulfilling the demand for the

original.” Berlin v. E.C. Publications, Inc.,

supra, 329 F.2d at 545. Just as imitation may be

follows:

The District Court concluded, among other

things, that the parody did not make more

extensive use of appellant’s song than was

necessary to “conjure up” the original. 482

F.Supp. at 747. While we agree with this

conclusion, we note that the concept of

“conjuring up” an original came into the

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. Columbia Pictures

Corp. v. National Broadcasting Co., 137

F.Supp. 348, 354 (S.C.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 original,

using the original as a known element of

modern culture and contributing something

new for humorous effect or commentary.

(emphasis added).

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Appendix E

In Walt Disney Productions v. Air Pirates, 581 F.2d 751 (9th

Cir. 1978), the United States Court of Appeals, Ninth Circuit, held

that the defense of fair use could not be applied to the copying of

the plaintiff’s cartoon characters where the copying was virtually

complete or almost verbatim. The Court held:

. itis first important to recognize that given

the widespread public recognition of the major

characters involved here, such as Mickey

Mouse and Donald Duck (see e.g., R. 191-

193), in comparison with other characters very

little would have been necessary to place

Mickey Mouse and his image in the minds of

the readers. Second, when the medium

involved is a comic book, a recognizable

caricature is not difficult to draw, so that an

alternative that involves less copying is more

likely to be available than if a speech, for

instance, is parodied. Also, significant is the

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Appendix E

as much of a component part as they need to

make the “best parody.” Instead, their desire to

make the “best parody” is balanced against the

rights of the copyright owner in his original

expressions. That balance has been struck at

giving the parodist what is necessary to conjure

up the original, and in the absence of a special

need for accuracy (compare Meeropol y. Nizer,

560 F.2d 1061, 1071 (2d Cir. 1977), certiorari

denied, 434 U.S. 1013, 98 S.Ct. 727, 54

L.Ed.2d 756), that standard was exceeded here.

By copying the images in their entirety,

defendants took more than was necessary to

place firmly in the reader’s mind the parodied

work and these specific attributes that are to be

satirized. See Netterville, Parody, Mimicry and

Humorous Commentary, 35 So.Cal.L.Rev.

225, 238 (1962).

fact that the essence of this parody did not

focus on how the characters looked, but rather

parodied their personalties, their

wholesomeness and their innocence.

581 F.2d at 757-758.

The Court further held:

The short answer to this assertion, which

would also justify substantially verbatim

copying, is that when persons are parodying a

copyrighted work, the constraints of the

existing precedent do not permit them to take

In MCA, Inc. v. Wilson, 677 S.2d 180 (2nd Cir. 1981), the

United States Court of Appeals, Second Circuit, held that the use of

the song “Cunnilingus Champion of Company C” was not fair use

under the copyright law of the song “Boogie Woogie Bugle Boy of

Company B” where songs were competitors in the entertainment

field, and that the infringing song was neither a parody nor

burlesque of the original work. The Court specifically held:

In reaching this conclusion, we have not

overlooked the district court’s finding that the

amount copied form plaintiff's song was so

substantial as to be unfairly excessive.

Although we might have reached a different

conclusion on the same facts, the district

court's finding was not clearly erroneous and

70a

Appendix E

furnishes further support for its holding of

infringement. Rosemont Enterprises, Inc. v.

Random House, Inc., supra, 366 F.2d at 310;

Walt Disney Productions v. Mature Pictures

Corp., supra, 389 F. Supp. at 1398.

677 F.2d at 185.

In both the Disney decision and MCA decision, the Court

found that the Defendants infringed because they substantially

copied the original works. In the case at bar, as stated in the

Affidavit of the Defendant Campbell, the Defendants’ version of

“Oh, Pretty Woman,” “Pretty Woman,” the Defendants only

borrows from the original work that amount necessary to conjure

up the image of the original work in the mind of the listener. The

Defendants have submitted the Affidavits of expert witnesses

which support this conclusion.

Disney did not sue the Air Pirates or Mature Pictures to

retrieve valuable rights to its works so it could peddle them

elsewhere. There has been no licensed parody of the Disney

cartoon world or licensed use of the Mickey Mouse song in an

obscene movie. On the contrary, the relief desired and obtained by

Disney was to bar such uses of its copyrighted material, because

they were thought degrading to the ideals represented by the

materials. The bout with the “Cunnilingus Champion” was

similarly motivated and there are elements of a motive to protect

personal sensitivities in the attack by Irvin Berlin on Mad

Magazine.

In Pilsbury Co. v. Milky Way Productions, Inc., 215 USPQ

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

magazine's use of the Pilsbury Company’s trademark, the Popin’

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

Tla

Appendix E

Although the portrayal is offensive to the court,

the court has not doubt that Milky Way

intended to make an editorial comment on the

values epitomized by these trade characters.

The fact that Screw magazine is offered for sale

does not compel a contrary conclusion. Social

commentary placed in a newspaper or

magazine is not put to acommercial use simply

because the publication is sold rather than

given to the public. The presentation was

located on the inside of the magazine, not on

the cover where it might be taken more

reasonably as an attempt to capitalize on the

plaintiff's original work.

The plaintiff suggests that, in addressing this

factor, the court should consider the generally

salacious content of Screw magazine. The

plaintiff seems to believe that a pornographic

adaptation of copyrighted works should be

accorded less protection under the fair use

doctrine than what might otherwise be granted

a more continent presentation. The Copyright

Act, however, does not expressly exclude

pornographic materials from the parameters of

the fair use defense, and the plaintiff offers no

authority for this protection. The character of

the unauthorized use is relevant, but, in the

court’s judgment, the fact that this use is

pornographic in nature does not militate

against a finding of fair use.

72a

Appendix E

In Universit) 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,

73a

Appendix E

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

form of express “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.

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

at the outset, we may not import the role of

In Fisher v. Dees, 794 F.2d 432, 437 (9th Cir. 1986), the Ninth

Circuit discussed the fact that very often a parody was critical 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 involve 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.Y.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

the original work. The Court specifically held:

In assessing the economic effect of the parody,

the parody’s critical impact must be excluded.

Through its critical function, a “parody may

quite legitimately aim at garroting the original,

destroying it commercially as well as

artistically.” B. Kaplan, An Unhurried View of

designed to stifle critics. “‘Destructive’

parodies play an important role in social and

literacy 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.

74a

Appendix E

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, e.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 “Gaslight” and “From Here to Eternity” cases come the

closest to economic motivation on the part of the plaintiff, but even

these economic motivations were qualitatively different from

those which justify copyright protection. Those cases were

elements of a larger competitive struggle between the motion

picture industry and the burgeoning new threat to that industry,

television. It has been suggested that the Courts, confronted with

the tension between the movies and the new entertainment

medium, might have played “Robin Hood” to the motion picture

interests, that they “might [have] consciously or unconsciously

weight([ed] the decisional scale to force bargaining between

motion picture companies and television producers with regard to

‘salable’ aspects of motion pictures.

The Defendants respectfully assert, as supported by the

Affidavits of their expert witnesses filed with the Court, that the

parody and the copyrighted work do not compete. Although the

Defendants’ version is for commercial gain, the sale of the

Defendants’ version will not, in any way, reduce the economic

value of the Plaintiff's work. (See Affidavits of William

Krasilovsky and Oscar Brand.) In Hill v. Whalen, 220 F. 359, 360

(S.D New York 1914), the Court held that:

75a

Appendix E

One test which, when applicable, would seem

to be ordinarily decisive, is whether or not so

much has been reproduced as will materially

reduce the demand for the original. If it has, the

rights of the owner of the copyright have been

injuriously affected. A word of explanation

will be here necessary. The reduction in

demand, to be a ground of complaint, must

result from the partial satisfaction of that

demand by the alleged infringing production.

A criticism of the original work, which

lessened its money value by showing that it

was not worth seeing or hearing, could not give

any right of action for infringement of

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

F.2d 303, 307 (2nd 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, i.e., 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,

76a

Appendix E

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 Column.L.Rev. supra at 597.

Thus, we conclude that whether an author or

publisher has acommercial 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. Cf.

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 question of whether or not the Defendants’ version of

“Oh, Pretty Woman,” “Pretty Woman,” constitutes “fair use” under

17 U.S.C. Section 107 is a question for the Court. Fisher v. Dees,

794 F.2d 432 (9th Cir. 1986). A review of the four factors

articulated by Congress, previously judicially determined, results

in a finding that as a matter of law the Defendants did not infringe

upon the Plaintiff's copyright because of the doctrine of fair use.

5. AS A MATTER OF LAW THE PLAINTIFF'S

ALLEGATIONS OF INTERFERENCE WITH BUSINESS

RELATIONSHIPS AND INTERFERENCE WITH

PROSPECTIVE BUSINESS ADVANTAGE MUST BE

DISMISSED.

The Plaintiff has alleged in Count II and Count III of its

Complaint that the Defendants’ parody constitutes an interference

with business relations and interference with prospective business

advantage of the Plaintiff. It is assumed that these allegations are

Appendix E

based upon Tennessee state law. 17 U.S.C. Section 301 clearly

preempts “all legal or equitable rights that are equivalent to any of

the exclusive rights within the general scope of 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

as specified by Sections 102 and 103...”

Plaintiff’s composition obviously comes within the scope of

copyrightable works of authorship and is fixed in a tangible

medium of expression. The test of whether the rights claimed are

preempted is “if under state law the act of reproduction,

performance, distribution or display will in itself infringe the state

created right, then such right is preempted.” Nimmer On

Counts II and III allege nothing more than “unlicensed copying

and commercial exploitation” of its version of “Oh, Pretty

Woman.” The Plaintiff fails to even suggest how the Defendants’

parody will interfere with its original work.

In Fisher v. Dees, 794 F.2d 432, 440 (9th Cir. 1986), the Ninth

Circuit discussed the preemption by federal law. The Court held:

Assuming arguendo that the false claiming of

authorship constitutes a separate tort under

California law, such a cause of action is

nevertheless preempted by federal law. In

Compco Corp. v. Day- Bright Lighting, Inc.,

376 U.S. 234, 84 S.Ct. 779, 11 L.Ed.2d 669

(1964), and Sears, Roebuck & Co. v. Stiffel Co.,

376 U.S. 225, 84 S.Ct. 784, 11 L.Ed.2d 661

(1964), the Supreme Court determined that the

Supremacy Clause of the United States

Constitution, U.S. Const., art. Vi, precludes the

states from protecting types of intellectual

78a

Appendix E

property that are already covered by the federal

“ma[kJe it very clear that just as a state could

not encroach upon the federal patent laws

directly it could not do so indirectly under the

guise of enforcing its laws against unfair

competition where those laws would clash with

the federal objectives.” Sinatra v. Goodyear

Tire & Rubber Co., 435 F.2d 711, 717 (9th Cir.

1970), cert. denied, 402 U.S. 906, 91 S. Ct.

1376, 28 L.Ed.2d 646 (1971). The same applies

to the copyright statute. Accordingly, the kind

of misappropriation alleged by the composers

can be redressed, if at all, only under federal

law.

The allegations contained in Counts II and III of the Plaintiff's

Complaint are precisely the acts protected by the Copyright Act.

Therefore, Counts II and III of the Plaintiff’s Complaint fail to

state a cause of action upon which relief can be granted because

such state remedies are not available because they are preempted

by the Copyright Act.

CONCLUS ION

The Plaintiff's Complaint should be dismissed for failure to

state a claim upon which relief can be granted because, as of a

matter of law, the Defendants parody version of “Oh, Pretty

Woman” constitutes fair use in accordance with 17 U.S.C. Section

107. Further, Counts II and III of the Plaintiff’s Complaint should

be dismissed for failure to state a claim upon which relief can be

79a

Appendix E

granted because the Plaintiff’s exclusive remedy is under the

equivalent state legal and equitable remedies.

Respectfully submitted,

s/ Alan Turk

ALAN MARK TURK, S.C. #7342

SANFORD R. ROSS, S.C. #13094

3310 West End Avenue

Fourth Floor

Nashville, TN 37203

(615) 386-9991

ATTORNEY FOR DEFENDANTS

80a

Appendix E

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing

has been mailed to Elizabeth B. Marney, Attorney for Plaintiff,

1200 Noel Place, 200 Fourth Avenue, North, Nashville, TN 37219,

this 1 day of August, 1990.

s/ Alan Turk

ALAN MARK TURK

8la

APPENDIX F — MOTION TO DEPOSIT FUNDS

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

NO: 3 900524

JUDGE WISEMAN

ACUFF-ROSE MUSIC, INC.,

Plaintiff,

vs.

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

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

a/k/a Brother Marquis, DAVID HOBBS a/k/a Mr. Mixx

p/k/a THE 2 LIVE CREW

and

LUKE SKYY WALKER RECORDS,

Defendants.

MOTION TO DEPOSIT FUNDS

Come now the Defendants, by and through their attorneys,

and, in accordance with Rule 67 of the Federal Rules of Civil

Procedure and Local Rule 13 of the United States District Court

for the Middle District of Tennessee, move to deposit with the

Court a check made payable to the United States District Court for ~

82a 83a

Appendix F APPENDIX G — AFFIDAVIT OF LUTHER CAMPBELL

SWORN TO JULY 31, 1990 WITH EXHIBITS

the Middle District of Tennessee in the amount of $13,867.56. The

Defendants would state that this payment constitutes all monies IN THE UNITED STATES DISTRICT COURT

owed by the Defendants to the Plaintiff in the above-captioned case FOR THE MIDDLE DISTRICT OF TENNESSEE

in accordance with the statutory rate established by the Copyright NASHVILLE DIVISION

Act, 17 U.S.C. Section 101, et seq. The Defendants rely upon the

Affidavit of Luther Campbell filed with the Court to establish the No. 3900524

amount owed by the Defendants to the Plaintiff. The Defendants JUDGE WISEMAN

have contemporaneously filed with the Court, as required by Rule

67 of the Federal Rules of Civil Procedure and Local Rule 13, an ACUFF-ROSE MUSIC, INC.

Order permitting the deposit of these funds with the Court.

Plaintiff,

Respectfully submitted,

vs.

s/ Alan Turk LUTHER R. CAMPBELL a/k/a Luke Skyywalker, CHRISTOPHER

ALAN MARK TURK, S.C. #7342 WONGWON a/k/a Fresh Kid Ice, MARK ROSS a/k/a Brother

SANFORD R. ROSS, S.C. #13094 Marquis, DAVID HOBBS a/k/a Mr. Mixx

3310 West End Avenue

Fourth Floor p/k/a

Nashville, TN 37203 THE 2 LIVE CREW

(615) 386-9991 |

ATTORNEYS FOR DEFENDANTS | and

CERTIFICATE OF SERVICE LU!" SKYYWALKER RECORDS,

I hereby certify that a true and correct copy of the foregoing has Defendants.

been mailed to Elizabeth B. Marney, Attorney for Plaintiff, 1200

Noel Place, 200 Fourth Avenue, North, Nashville, TN 37219, this 1 AFFIDAVIT

day of August, 1990.

STATE OF FLORIDA )

s/ Alan Turk COUNTY OF DADE )

ALAN MARK TURK

PARTI

COMES NOW the Affiant and makes oath as follows:

84a

Appendix G

1. My name is Luther Campbell, and I am a citizen and

resident of the State of Florida. I am over the age of eighteen (18)

years of age.

2. In May, 1989, I wrote a parody of the song “Oh Pretty

Woman” which I entitled “Pretty Woman”. In writing the parody I

felt it was necessary for the listener to identify the parody version

with the original version written and performed by the late Roy

Orbison. In writing the lyrics to the parody and selecting the

accompanying score it was a critical factor that I determine what

amount of the original work would be included in the parody. |

chose to include the distinctive introduction of the original version

of “Oh Pretty Woman” and the first line of lyrics because I felt this

was sufficent for the listeners to identify the parody with the

original work.

3. The parody “Pretty Woman” was an attempt on my part,

through comical lyrics, to satirize the original work “Oh Pretty

Woman”, written and performed by Mr. Orbison.

PART II

1. On July 5, 1989, Linda Fine, General Manager of Luke

Records f/k/a Luke Skyywalker Records, wrote Gerry [Gary]

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

Attached as Exhibit A to my Affidavit is a copy of that

correspondence. The purpose of Ms. Fine’s letter was to advise

Acuff-Rose Music, Inc. of the intent of The 2 Live Crew to write

and perform a parody of the song “Oh Pretty Woman” originally

written and performed by Roy Orbison, for which Acuff-Rose

Music, Inc. held the copyright. Ms. Fine enclosed with her

correspondence “a copy of the lyrics, so that you may see their

satirical parody, very similar in vein to what Wierd Al Yankovic

85a

Appendix G

and other satirical artists are doing”. (Exhibit A) Ms. Fine

indicated that Acuff-Rose Music, Inc. would be acknowledged as

the owner of the song and that the Defendants would pay the

statutory rate for its use. Ms. Fine also indicated that the parody

would be included on a novelty record and that it would by “heard

by hundreds of thousands of new listeners in their homes”. (Exhibit

2. On July 17, 1989, Gerry Teifer, of the Opryland Music

Group, Inc. and Acuff-Rose, Music, Inc., wrote Linda Fine,

General Manager of Luke Records, formerly known as Luke

Skyywalker Records. Attached as Exhibit B is a copy of that

correspondence. Mr. Teifer, as agent for the Plaintiff, indicated that

“I must inform you that we cannot permit the use of a parody of

“Oh Pretty Woman”. (Exhibit B)

4. In June, 1989, Luke Records, formerly known as

Skyywalker Records, released “As Clean As They Want to Be”

which included “Pretty Woman” the parody of “Oh Pretty Woman”

referenced in Ms. Fine’s correspondence attached hereto as

Exhibit A.

5. The Defendants did acknowledge Acuff-Rose Music,

Inc."s ownership interest in the song and the authorship of Mr.

Orbison and Mr. Dees. Attached as Exhibit C is a photocopy of the

compact disc cover which acknowledges these rights of the

Plaintiff. “As Clean As They Want To Be” had moderate success in

the market place, with combined sales of 248,000 units of albums,

cassettes and compact discs. The Plaintiff, as the copyright owner

of “Oh Pretty Woman” is entitled to be compensated the statutory

rate for the combined sales of albums, cassettes and compact discs.

An accounting has been performed by Luke Records, formerly

known as Luke Skyywalker Records, to determine the amount of

money owed to the Plaintiff. This amount is $13,867.56. Attached

86a

Appendix G

as Exhibit D to my affidavit is a photocopy of a check made

payable to the Plaintiff in the amount of $13,867.56 to compensate

the Plaintiff for the combined sales of “As Clean As They Want To

Be” for the inclusion of the parody “Pretty Woman”. This check

has been tendered to the Plaintiff through the United States District

Court for the Middle District of Tennessee as was originally

offered in Ms. Fine’s correspondence dated July 5, 1989 (Exhibit

A).

6. That all correspondence referenced above was sent to my

legal counsel, Allen L. Jacobi who advised me that since the song

was a parody that it could be released if so desired.

Further the Affiant sayeth not.

s/ Luther Campbell

LUTHER CAMPBELL

SWORN TO AND SUBSCRIBED BEFORE

ME THIS 31 DAY OF JULY, 1990.

s/ Melanie I. Kerr

NOTARY PUBLIC, State of Florida

87a

Appendix G

EXHIBIT A — LETTER OF JULY 5, 1989

July 5, 1989

Gary Teifer

Opryland, USA

P.O. Box 121900

Nashville, TN 37312-1900

RE: “Pretty Woman”

Dear Mr. Teifer:

As the General Manager of Skyywalker Records, I would like

to inform you of “Two Live Crew’s” desire to do a parody on the

above captioned song.

In the event you have not hear of this group, they are one of the

most successful rap groups in the country today. This LP will be

their third release and the previous two have gone Gold and are

close to Platinum.

At the time of this writing the Group has a cut on the Billboard

Rap Chart. I have enclosed a copy of the lyrics, so that you may see

their satirical parody, very similar in vain to what Weird Al

Yankovic and other satirical artists are doing.

We intend that all credits (writer & publisher) show your

complete ownership of the song, and of course we intend to pay

statutory rates.

Kindly keep in mind that we present this to you in a humorous

sense and in no way should this be construed as anything but a

88a

Appendix G

novelty record that will be heard by hundreds of thousands of new

listeners in their homes.

Sincerely,

Linda Fine

General Manager

Encl.

(cassette/lyric sheet)

89a

Appendix G

EXHIBIT B — LETTER OF JULY 17, 1989

OPRYLAND MUSIC GROUP

ACUFF-ROSE MUSIC, INC.

MILENE MUSIC, INC.

July 17, 1989

Linda Fine

General Manager

SKYWALKER RECORDS

Suite 307

3050 Biscayne Blvd.

Miami, FL 33137

Dear Linda:

In response to your letter of July 5, 1989 regarding “Oh, Pretty

Woman”, I called your office, but was unable to contact you.

I am aware of the success enjoyed by “The 2 Live Crews”, but I

must inform you that we cannot permit the use of a parody of “Oh,

Pretty Woman”.

Sincerely,

s/ Gerry Teifer

Gerry Teifer

GT/jmm

90a

Appendix G

EXHIBIT C — ALBUM COVER AND LABEL

INFORMATION

(Omitted Here But Submitted Separately As Lodging)

9la

Appendix G

EXHIBIT D— PHOTOCOPY OF CHECK

(Omitted Here But Submitted Separately As Lodging)

92a

Appendix G

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing

has been mailed to Elizabeth B. Marney, Attorney for Plaintiff,

1200 Noel Place, 200 Fourth Avenue, North, Nashville, TN ara 19,

this 1 day of August, 1990.

s/ Alan Turk

ALAN MARK TURK

93a

APPENDIX H — AFFIDAVIT OF M. WILLIAM

KRASILOVSKY SWORN TO JULY 31, 1990 WITH

EXHIBIT

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF TENNESSEE

Acuff-Rose Music Inc.

Plaintiff

vs.

Luther R. Cambell a/k/a Luke Skywalker, Christopher Wongwon

a/k/a Fresh Kid Ice, Mark Ross a/k/a Brother Marquis, David

Hobbs a/k/a Mr. Mixx

p/k/a The 2 Live Crew

and Luke Skywaiker Records

Defendants

AFFIDAVIT

M. William Krasilovsky, an attorney at law, duly admitted to

practice in the states of New York and Alaska and in federal courts

affirms upon penalty of perjury as follows:

1. [am an attorney specializing in the field of entertainment law

with a particular emphasis upon music copyright. I have been in

this field since 1953 and attach hereto as Exhibit “A” my resume.

2. Asco-author of the text “This Business of Music” published by

the leading trade paper of the music industry, Billboard, I have

stated the following concerning what is considered to be an

“answer song” in the industry and its relationship to the doctrine of

“fair use:” (pages 142-145)

94a

Appendix H

“The music industry has for many years

contained “answer songs,” which have been

common in the country and western and

rhythym and blues fields — areas that are now

part of the pop music business. An original

song might have been entitled, for example,

“We always Walk in the Rain.” If this should

achieve success, another writer might shortly

thereafter pen a song called, “We Never Walk

in the Rain,” as a humorous reply to an

aftermath of the former song.”

In addition, regarding fair use and parody (page 144):

“Parody and burlesque of a copyrighted work

are dependent on fair use and require caution.

Mad Magazine was upheld by a Federal Circuit

Court of Appeals in its defense of parodies,

such as “The Last Time I Saw Paris,” on the

ground of fair use for humorous critical

purposes. The court’s decision pointed out that

the copying did not exceed the amount required

to recall reasonably and evoke in the reader the

original version being parodicd. . . .”

Page 143 of “This Business of Music” discusses the precedent of

“Jesus Christ Superstar.” Applying the factors therein designated, I

note most emphatically that 2 Live Crew’s work in the instant

action cannot be considered a substitute for Plaintiff’s work and is

not in competition with Plaintiff's work.

3. I have been furnished with authentic copies of the two songs in

question in the instant action, namely, “Oh Pretty Woman,” as

——— -

95a

Appendix H

recorded by Roy Orbison, and “Pretty Woman” as recorded by 2

Live Crew and have made the following observations:

a. The recent recording of 2 Live Crew utilizes an accompaniment

throughout and in introductory melodic and lyric segment, which

is designed to and accomplishes, an evocation of “Pretty Woman”

as recorded by Roy Orbison.

b. It proceeds to parody and satirize the original composition in a

true “answer song” format by altering the physical attributes of the

subject woman; a pleasing image of feminine beauty becomes

bald-headed, hairy and generally repugnant. A particular note is

the phrase, “the baby ain’t mine” which would be completely

inconsistent with the tone and story line of the original song,

c. The widespread publicity and news coverage involving 2 Live

Crew, as well as my personal observation from hearing the

recording, lead me to the conclusion that the intended audience for

the two songs is entirely different. In other words, the record

collector seeking the original composition would be highly

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

d. In summary, it appears that the effectiveness of the satire

required some evocation of the original, but that the line between

infringement and fair use was not exceeded.

e. In presenting this affidavit, I should add the note that I do not

purport to be a musicologist or music critic, and that the opinions

expressed above are not in such claimed capacity.

s/ M William Krasilovsky

M. William Krasilovsky

96a

Appendix H

Sworn to before me

this 31stday of July, 1990

s/ Andrew J. Feinman

Notary Public

97a

Appendix H

EXHIBIT A — RESUME

M. William Krailovsky, Esq.

51 E. 42nd Street, Suite 1601

New York, New York 10017

M. William Krasilovsky is a partner in the firm of Feinman &

Krasilovsky, specializing in music and entertainment matters. In

addition to the estates of Rachmaninoff, Buddy De Silva, Ray

Henderson and Fats Waller the firm also represents or has represented

classic industry figures such as Aretha Franklin, Paul Anka, Burt

Bacharach, Chuck Berry as well as numerous composers, publishers,

recording artists, producers, studios and record companies. Mr.

Krasilovsky has represented Warner Brothers publishing companies

and the American Guild of Authors and Composers, has served as

officer and/or director of a number of music publishing companies

such as Weil-Brecht Harms Music Corporation, Peppamar Music, Inc.,

thus enjoying constant involvement in the negotiation and review of

financial matters of such companies and their dealings with ASCAP

and BMI.

Additionally, Mr. Krasilovsky is co-author of the books, “THIS

BUSINESS OF MUSIC” and “MORE ABOUT THIS BUSINESS OF

MUSIC,” published by Billboard, the leading trade paper of the music

industry. Both books have been recognized as leading reference texts

by the American Library Association and ASCAP, as well as being

respectfully referred to as the “bible” of the music business by working

musicians and others involved in the industry.

Extremely specialized as to copyright law, Mr. Krasilovsky has been

published on this subject by Columbia Teacher's College, the

the Practicing Law Institute, Yale University, Columbia

98a

Appendix H

University, University of Miami, New York University, Cornell

University, and Brigham Young University.

Within recent years, Mr. Krasilovsky has been engaged as an

expert witness in a number of litigations in various courts

involving the music industry as a specialist in entertainment law.

As such, he was presented by the Record Industry Association of

America and was quoted favorably on appeal.

Having graduated Cornell University in 1947 and Cornell Law

School in 1949 Mr. Krasilovsky has been adjunct professor at New

York University during the past three years, teaching a course in

ethics in the entertainment business.

APPENDIX I — MOTION TO CONVERT

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

NASHVILLE, TENNESSEE

Case No. 3:90-0524

JUDGE WISEMAN

JURY DEMAND

ACUFF-ROSE MUSIC, INC.

Plaintiff,

Vv.

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 SKYY WALKER RECORDS,

Defendants.

MOTION TO CONVERT DEFENDANTS’ MOTION TO

DISMISS TO MOTION FOR SUMMARY JUDGMENT

Comes now the plaintiff, Acuff-Rose Music, Inc. (Acuff-

Rose), and moves this Court to designate the pending motion to

dismiss a motion for summary judgment, as provided by Federal

Rule of Civil Procedure 12(b). In support of this motion Acuff-

Rose states:

100a

Appendix |

1. On August 1, 1990, Defendants filed a motion

denominated Motion to Dismiss.

2. The Defendants’ Motion to Dismiss presents materials

outside the pleadings, including affidavits, making treatment as a

motion for summary judgment appropriate under Federal Rule of

Civil Procedure 12(b). Although Defendants captioned their

motion as a Motion to Dismiss, Defendants acknowledge that their

motion is one for summary judgment on pp. 3-4 of the

Memorandum in Support of Defendants’ Motion to Dismiss.

3. According to the Certificate of Service attached to the

Defendant's Motion to Dismiss, a copy was served on Acuff-Rose

by mail on August 1, 1990. On August 3, 1990, Counsel for

Defendants informed Acuff-Rose that a copy had not yet been

mailed because Defendant’s counsel was waiting on an additional

affidavit. Acuff-Rose obtained a copy of the Motion to Dismiss by

sending a messenger to pick up a copy on August 4, 1990.

4. Defendants’ Motion to Dismiss was filed without one of

the supporting affidavits. This affidavit was filed on August 3,

1990, but never served on Plaintiff. Acuff-Rose obtained a copy of

this filed affidavit from the clerk of the court on August 8, 1990.

5. Pursuant to Rule 8(b) of the Local Rules of Court, if the

pending motion is treated as a motion to dismiss, Acuff-Rose’s

response is due on August 22, 1990; if as a motion for summary

judgment, on August 28, 1990.

THEREFORE, Acuff-Rose moves this Court to ORDER that

Defendants’ pending motion to dismiss be converted to a motion

for summary judgment and be decided in conformity with Rule 56

of the Federal Rules of Civil Procedure and that Acuff-Rose shall

10la

Appendix |

have until August 28, 1990, in which to respond to the pending

motion.

Respectfully submitted,

KING & BALLOW

By s/E. Andrew Norwood

Alan L. Marx

Elizabeth B. Marney

E. Andrew Norwood

Francis J. Del Casino

1200 Noel Place

200 Fourth Avenue North

Nashville, TN 37219

(615) 259-3456

Attorneys for Plaintiff

Acuff-Rose Music, Inc.

102a

Appendix I

CERTIFICATE OF SERVICE

I hereby certify that on the 15th day of August, 1990, a true

and exact copy of the foregoing was served on Defendants by

placing a copy in the U.S. Mail, first class postage prepaid

addressed to:

Alan Jacobi, Esq.

1313 125th Street, NE

North Miami, FL 33161

Sanford R. Ross

1319 16th Avenue South

Nashville, TN 37212

Alan M. Turk, Esq.

3310 West End Avenue

Nashville, TN 37203

s/ E. Andrew Norwood

E. Andrew Norwood

A a a

2 OPT ge

103a

APPENDIX J — ORDER

ALLOWING DEPOSIT OF FUNDS

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

No. 3900524

JUDGE WISEMAN

ACUFF-ROSE MUSIC, INC.,

Plaintiff,

VS.

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

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

a/k/a Brother Marquis, DAVID HOBBS a/k/a Mr. Mixx

p/k/a THE 2 LIVE CREW

and

LUKE SKYY WALKER RECORDS,

Defendants.

ORDER

The Defendants have moved, in accordance with Rule 67 of

the Federal Rules of Civil Procedure and Local 13 of the United

States District Court for the Middle District of Tennessee, to

deposit $13,867.56 with the Court. The Defendants have alleged

that this payment constitutes all monies owed by the Defendants to

104a

Appendix J

the Plaintiff in accordance with the statutory rate established by the

IT IS HEREBY ORDERED that the Defendants deposit with

the Court $13,867.56. The Court will hold these funds during the

pendency of this litigation or until such time as the Court

determines said funds should be released to one of the parties.

These funds will be automatically be rolled over into an interest

bearing account unless otherwise ordered by the Court.

IT IS FURTHER ORDERED that counsel presenting this

Order serve a copy thereof on the Clerk of this Court or his chief

deputy personally. Absent the aforesaid service, the Clerk is hereby

relieved of personal liability relative to compliance with this

Order.

IT IS FURTHER ORDERED that counsel has designated that

these funds be deposited in an interest bearing checking account at

First American National Bank, First American Center, Nashville,

TN 37201, in the name of the Clerk of the United States District

Court for the Middle District of Tennessee.

IT IS FURTHER ORDERED that the Clerk has heretofore

given notice to the parties that a fee will be deducted from the

account pursuant to 54 Fed.Reg. 20497 (May 11, 1989). The Clerk

is, therefore, directed to deduct an amount equal to the income

earned and credited to the investment account for the first 45 days

of income earned, and to deposit that amount in the United States

Treasury.

ENTERED this __ day of August, 1990.

s/ Thomas A. Wiseman, Jr.

THOMAS A. WISEMAN, JR.

105a

APPENDIX K — RESPONSE TO MOTION TO DISMISS

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

NASHVILLE, TENNESSEE

Case No. 3:90-0524

JUDGE WISEMAN

JURY DEMAND

ACUFF-ROSE MUSIC, INC.

Plaintiff,

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

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

a/k/a Brother Marquis, DAVID HOBBS a/k/a Mr. Mixx

p/k/a

THE 2 LIVE CREW

and

LUKE SKY Y WALKER RECORDS,

Defendants.

PLAINTIFF’S RESPONSE TO THE MOTION TO DISMISS

COMES NOW the Plaintiff, Acuff-Rose Music, Inc. (Acuff-

Rose), and submits this response to the Motion to Dismiss filed by

the Defendants. The Motion to dismiss filed by Defendants

contained affidavits that converted that motion to a Motion for

Summary Judgment. In support of this response, Acuff-Rose has

attached supporting declarations.

106a

Appendix K

I. FACTS

Acuff-Rose is a Tennessee corporation that maintains offices

and does business in the Middle District of Tennessee. The

individual Defendants are collectively known as The 2 Live Crew,

a professional musical group that performs “rap” music. The group

does business in the Middle District of Tennessee. 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 in the Middle District

of Tennessee.

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

musical work entitled “Oh, Pretty Women,” which was registered

for copyright protection on August 26, 1964, under copyright Reg.

No. EP-191739. Orbison and Dees assigned their rights in “Oh,

Pretty Woman” to Acuff-Rose in 1964.

The musical composition “Oh, Pretty Woman” immediately

enjoyed commercial success and has remained a popular work to

this day. Acuff-Rose continues to collect substantial revenues from

domestic and foreign licensing of “Oh, Pretty Woman.” Although

receiving frequent licensing requests for “Oh, Pretty Woman,”

Acuff-Rose has zealously protected the copyright and has only

allowed licenses that were consistent with good taste and that

furthered the value of the property. License requests are granted

pursuant to Acuff-Rose’s long range plans for appropriate

exploitation of “Oh, Pretty Woman.” Typically, denied requests are

not consistent with these long range plans and/or good taste or

retain a risk of disparaging the future value of “Oh, Pretty

Woman.”

The song “Oh, Pretty Woman” has been frequently recorded

107a

Appendix K

and widely disseminated. Defendants had access to “Oh, Pretty

Woman.” On July 5,1989, Defendants, through their agent,

requested a license to create a derivative work based on “Oh, Pretty

Woman.” On July 17, 1989, Acuff-Rose sent a letter informing

Defendants that the license would not be granted.

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

album entitled As Clean As They Wanna Be. One of the songs on As

Clean As They Wanna Be is a musical work entitled “Pretty

Woman.” The liner notes and label on the album 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).”

On July 16, 1990, Acuff-Rose filed a complaint against the

defendants claiming copyright infringement, interference with

business relations, and interference with prospective business

advantage. On August 3, 1990, Defendants filed a motion

denominated as a Motion to Dismiss. The motion filed by

Defendants contained supporting materials, and, as Defendants

admitted on pages 3 and 4 of their Memorandum in Support, was in

fact a motion for summary judgment. See Rule 12(c), Fed. R.

Civ. P.

Il. LEGAL STANDARD

A. Motions for Summary Judgment

A summary judgment may be granted only if there is no

genuine issue as to any material fact and the moving party is

entitled to a judgment as a matter of law. Fed. R. Civ. P. 56. The

moving party bears the burden of proving that there is no genuine

issue of material fact to be tried. Fed. R. Civ. P. 56, Celotex Corp. v.

108a

Appendix K

Catrett, 477 U.S. 317 323, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265

(1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 106 S.

Ct. 2505, 2510 and 2514, 91 L. Ed. 2d 202 (1986); Pachia v.

Saunders System, Inc., 899 F.2d 496, 498 (6th Cir. 1990).

Furthermore, * ‘{o]n summary judgment the inferences to be

drawn from the underlying facts . . . must be viewed in the light

most favorable to the party opposing the motion.’ ” Matsushita

Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 578,

106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986) (quoting United

States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 994, 8 L.

Ed. 2d 176 (1962)); Historic Preservation Guild of Bay View v.

Burnley, 896 F.2d 985, 993 (6th Cir. 1989). See alsoS & H

Computer Systems, Inc. v. SAS Institute, Inc., 568 F. Supp. 416 (M.

D. Tenn. 1983) (Motion for summary judgment denied in

regarding the alleged similarity of the two computer programs). In

considering the motion, the Court must draw all reasonable

inferences from the Complaint. Walker Process Equipment, Inc. v.

Ford Machinery and Chemical Corp., 382 U.S. 172, 174-74, 86S.

Ct. 347, 349, 15 L. Ed. 2d 247 (1965).

As is set forth below, Defendants’ motion in this action must

fail because genuine issues of material fact exist as to whether the

use made by Defendants was a parody and whether that use was a

fair use as that term is used in § 107 of the Copyright Act.’

B. Copyright Infringement

In order to prove a claim of copyright infringement, the

plaintiff must show ownership of a valid copyright and copying by

1. Acuff-Rose points out that the Defendants filed their motion prior to the

taking of any discovery in this matter.

109a

Appendix K

the defendant. Video Trip Corp. v. Lightning Video, Inc., 866 F.2d

50, 52 (2d Cir. 1989). Copying is ordinarily established indirectly

by plaintiff’s proof of access by the defendant and substantial

similarity of the two works. Sid & Marty Krofft Television

Productions, Inc. v. McDonald's Corp., 562 F.2d 1157 (9th Cir.

1977). Showing ownership of “valid, existing copyrights .. .

automatically establishes that Plaintiffs have the exclusive right to

prepare derivative works based on the copyrighted work, 17

U.S.C. § 106(2); and that Plaintiffs are entitled to prevent any

unauthorized ‘musical arrangement or any other form in which the

work may be recast, transformed or adapted.’ ” MGM v. Showcase

Atlanta Coop. Prods., 479 F. Supp. 351, 355-56 (N.D. Ga. 1979).

“The rights conferred by copyright are designed to assure

contributors to the store of knowledge a fair return for their

labors.” Harper & Row Publishers v. Nation Enterprises, 471 U.S.

539, 105 S. Ct. 2218, 85 L. Ed. 2d 588 (1985) (citing Twentieth

Century Music Corp. v. Aiken, 422 U.S. 151, 156, 95 S. Ct. 2040,

2043, 45 L. Ed. 2d 84 (1975)). To raise their parody defense,

Defendants have admitted access, substantial similarity, and

copying.

Ili. ARGUMENT

A. A genuine issue of material fact exists as to whether

Defendants’ derivative work is a parody.

1. The Defendant’s Work is not a Parody of the

Copyrighted Work

The Defendants in this case have asserted that they were

pri vileged to infringe Acuff-Rose’s copyright because they created

a derivative work that was a parody of the copyrighted work. A

110a

Appendix K

genuine issue of material fact exists as to whether the derivative

work prepared by Defendants is a parody.

Defendants contend that Acuff-Rose has “admitted” that their

use was a parody. Acuff-Rose has never made this admission. The

letter from Gerald Teifer that purportedly contains the admission

simply does not say what Defendants have claimed. Moreover,

parody is a term of art in the music industry, and the word has a

number of different meanings, some of which differ from the

meaning used by courts in considering a “parody” defense. The

term “parody” is used generically to describe any use in which a

copyrighted musical work has new lyrics created for it. (Teifer

Declaration at { 8). Defendants’ use is a parody under this

definition, and Teifer’s letter said Acuff-Rose would not license

“the use of a parody of ‘Oh, Pretty Woman.’ ”

Parody has another, more specific meaning, relating to satire

or burlesque. Legal opinions referring to a “parody” defense refer

only to this meaning. Acuff-Rose does not admit and has never

admitted that Defendants’ use is a parody under the legal

definition. The agent of Acuff-Rose, Gerald Teifer, who

purportedly made the “admission,” never heard the Defendants’

derivative work at issue in this case before he wrote his letter.

(Teifer Declaration at | 5). Therefore, he admitted nothing about

the nature of the infringing work.

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

Supp. 366, 376 (S.D.N.Y. 1979), the court defined parody in the

burlesque sense discussed above. “A parody is a work in which the

language or style of another work is closely imitated or mimicked

for comic effect or ridicule.” This definition has been cited and

refined by other courts. In MGM v. Showcase Atlanta Cooperative

Productions, Inc., 479 F. Supp. 351, 357 (N.D. Ga. 1979), the court

held:

llla

Appendix K

{I]n order to constitute the type of parody

eligible for fair use protection, parody must do

more than merely achieve comic effect. It must

also make some critical comment or statement

about the original work which reflects the

original perspective of the parodist — thereby

giving the parody social value beyond its

entertainment function. Otherwise, any comic

use of an existing work would be protected,

removing the “fair” aspect of the “fair use”

doctrine and negating the underlying purpose

of copyright law of protecting original works

from unfair exploitation by others.

Accord, New Line Cinema Corp v. Bertlesman Music Group, 693 F.

Supp. 1517, 1525 (S.D.N.Y. 1988).

. Based on these definitions, a genuine issue of material fact

exists as to whether the work in question even meets the legal

definition of parody or is the type of parody eligible for fair use

protection. The Defendants argue that their work achieves a comic

effect. However, whether the infringing work makes any statement

at all about the original work is an open factual question for the

Court to decide. The conclusions in the Defendants’ affidavits,

untested by discovery or cross-examination, fall short of leaving

this material fact undisputed.

To qualify for consideration as a parody, a work must be

purposefully constructed as a parody. D.C. Comics v. Unlimited

Monkey Business, 598 F. Supp. 110, 119(N.D. Ga. 1984). “Parody

in its proper role creates something new by drawing from the old:

but when it has the effect of refashioning or destroying the old, it is

not protected . .. Trading upon the imagination and originality of

another is not fair use.” ;

112a

Appendix K

The Defendants have submitted an affidavit that claims their

use was intended as a parody. However, this conclusory, self-

serving statement has not been tested by compliance with

discovery or cross-examination. In spite of Defendants’

contentions, a determination that there is no genuine issue as to this

material fact would be at best premature. The Defendants’

infringing work has refashioned the copyrighted work and has

traded on the imagination and originality of the original authors.

Because a genuine issue of material fact exists as to whether this

use is a parody, the Motion to Dismiss is due to be denied.

To be considered a parody, the work must also comment, at

least in part, on the work parodied. Wilson, 425 F. Supp. 443, affd.,

667 F.2d 180 (2d Cir. 1981); Walt Disney Prod. v. Mature Picture

Corp., 389 F. Supp. 1397 (S.D.N.Y. 1975); Walt Disney Prods. v.

Air Pirates, 581 F.2d 751, 758 n.15 (9th Cir. 1978); accord 3 M.

Nimmer, Nimmer on Copyright, § 13.05[C] at 13-90.9 (The second

circuit went too far in Elsmere in “suggesting an open-ended

standard whereby wholesale appropriation of another’s work

becomes possible under the banner of fair use provided only that

elements of humor are added”). In New Line Cinema Corp. v.

Bertlesman Music Group, Inc., 693 F. Supp. 1517 (S.D.N.Y. 1988),

plaintiffs charged that defendant’s music video entitled “A

Nightmare on My Street” infringed their copyrighted movie A

Nightmare on Elm Street. The New Line court accepted the

Showcase district court’s definition of parody, /d., at 1525, and

granted the plaintiff’s motion for a preliminary injunction because

the court had “serious doubts” as to whether defendant’s music

video constituted parody under the accepted definition: the video

did not “appear to make a critical comment or statement about (the

movie] reflecting a unique perspective . . . [T]he video [served]

solely an entertainment and promotional function for [defendant's]

song.” /d. at 1525.

113a

Appendix K

A genuine issue as to this material fact exists. The derivative

work created by Defendants does not comment on the copyrighted

work. The Defendants’ work is primarily about the physical

attributes of women. An examination of the lyrics of the

copyrighted work demonstrates that it is not about the physical

attributes of women. Rather, the copyrighted work is primarily

about loneliness.

If the work in question is not a parody, it is an unauthorized

derivative work, unquestionably prepared without permission of

the copyright owner. Preparation of a derivative work is one of the

exclusive rights guaranteed to a copyright owner. 17 U.S.C. § 106

(2). See e.g. D.C. Comics, Inc. v. Unlimited Monkey Business, Inc.,

598 F. Supp. 110 (N.D. Ga. 1984); MGM v. Showcase Atlanta

Cooperative Productions, Inc., 479 F. Supp. 351 (N.D. Ga 1979).

This copying by the Defendants is an unjustifiable appropriation.

The Motion to Dismiss should be denied.

2. Defendants Appropriated Too Much of the Copyrighted

Work to Claim a Parody Defense

Even assuming, arguendo, that the Defendants’ infringing

work is a parody, a point Acuff-Rose specifically denies, a genuine

issue of material fact exists as to whether Defendants’ taking of the

copyrighted work is so substantial as to be improper.

One of the earliest cases involving this issue was Columbia

Pictures Corp. v. National Broadcasting Corp., 137 F. Supp. 348

(S.D. Cal. 1955). The case involved a parody by Sid Ceasar of the

movie From Here to Eternity. In Berlin, the court articulated what

has become known as the “recall or conjure up” test.

Since a burlesquer must make a sufficient use

li4a

Appendix K

of the original to recall or conjure up the

subject matter being burlesqued, the law

permits more extensive use of the protectable

portion of a copyrighted work in the creation of

a burlesque of that work than in the creation of

other fictional or dramatic works not intended

as a burlesque of the original.

Id. at 354.

This standard was later adopted and refined by the Second

Circuit in Berlin v. E.C. Publications, Inc., 329 F.2d 541, 545 (2d

Cir. 1964). In that case the court held:

Where, as here, it is clear that 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.

The Ninth Circuit altered the standard somewhat in Walt

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

1978). The court held that the purported parodist had taken too

much of the Walt Disney characters defendant claimed to be

parodying.

When persons are parodying a copyrighted

work, the constraints of the existing precedent

do not permit them to take as much of a

component part as they need to make the “best

parody.” Instead their desire to make the “best

11Sa

Appendix K

parody” is balanced against the rights of the

In spite of these cases, the Second Circuit took a much

different view of the parody standard in the later case of Elsmere

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

1980), In a footnote to its opinion, the court stated that a more

extensive use than that adopted by the recall or conjure up test

might be proper. This footnote has been roundly criticized. See,

e.g., 3 M Nimmer, Nimmer on Copyright § 13.05[C] (expressing

concern that this interpretation of the fair use doctrine could allow

wholesale appropriation as long as humorous elements were

added); W. Patry, The Fair Use Privilege in Copyright Law 165

(1985) (parodist may take more than necessary to conjure up, but

runs risk of a finding that the infringing use was not a fair use). The

Second Circuit quickly retreated from this standard in Warner

Brothers Music v. American Broadcasting, Co. Inc., 654 F.2d 204,

211 (2d Cir. 1981). In that case, the Second Circuit held:

Suffice it to say that while the [parody] defense

might be applicable to those isolated instances

in which a nearly identical line from the

plaintiffs’ script, or express reference to one of

the plaintiffs’ characters was made, we

question whether the defense could be used to

shelter an entire work that is substantially

similar [to] and in competition with the

copyrighted work.

(emphasis added).

In the instant case, there is a genuine issue as to the material

fact of whether Defendants used more of the copyrighted work

116a

Appendix K

than was necessary to recall or conjure up “Oh, Pretty Woman.”

The appropriation of the music of “Oh, Pretty Woman” was

substantial. (Spielman Declaration at {7 5 & 9). The Defendants

have acted to capitalize on the widespread recognizability of the

music and lyrics of “Oh, Pretty Woman.” This work was a hit song

when released by Roy Orbison and has become a standard that

continues to generate substantial revenue including its current use

in a successful motion picture under a license. (Teifer Declaration

at { 10). As such, it would take very little to conjure up “Oh, Pretty

Woman” in the mind of the listener. Just as in the Air Pirates case,

the Defendants’ purpose here was to cash in on the widespread

recognition of the copyrighted work.

The right of the Defendants to create a parody must be

“balanced against the right of the plaintiff in its original

expression. That balance has been struck at giving the parodist

only what is necessary to conjure up the original.” Air Pirates, 581

F.2d at 758. Where the infringer takes more than is necessary to

conjure up the original, that balance tips in favor of a finding of-

infringement. See D.C. Comics, 598 F. Supp. 110, 118; Air Pirates,

581 F.2d at 751; Berlin, at 541; Wilson, 677 F.2d at 184-85.

The Defendants rely heavily on Elsmere and on Fisher v.

Dees, 794 F.2d 432 (9th Cir. 1986), which relied on Elsmere.

However, as noted above, the suggested standard set out in Elsmere

has been largely criticized and subsequently limited in Warner

Brothers by the very circuit court that created it. The Defendants

fail to mention this point.

The case of Fisher v. Dees, 794 F.2d 432 (9th Cir. 1986), on

which Defendants rely is distinguishable. In that case, the

defendants used only 6 bars of a 38-bar copyrighted musical work.

Here, the taking was much more substantial. (Spielman

117a

Appendix K

Declaration at { { 6 & 7). Even the affidavit of Defendants’

purported expert ackiwwiedges that the Defendants’ version uses

the following: The copyrighted “4/4 drum beat introduction;” a

widely recognizable bass riff at least 10 times; the chorus “Pretty

Women”; and the work’s original melody. As admitted in the

affidavit, the Defendants’ version uses 55 bars taken from the

copyrighted work, including the original melody.

The Defendants exceed the bounds of use allowed by the

courts by taking a substantial portion of “Oh, Pretty Woman”

including its opening rhythm section, its highly recognizable bass

riff, its melody line, its title, and part of its chorus. (Spielman

Declaration at | 7). The Fisher use made up 29 seconds of a 40

minute work. The infringing use of “Oh, Pretty Woman” by The 2

Live Crew was much more extensive. (Spielman Declaration f 6-

8). There is a genuine issue as to the material fact of whether

Defendants’ taking is too extensive to qualify for protection,

assuming, arguendo, that their use is a parody at all.

Also, in the Fisher case, the defendants did not misrepresent

their work as the original copyrighted work. Through their use of

the names of Roy Orbison, William Dees, and Acuff-Rose, the

Defendants have represented to a potential purchaser that they are

using the original copyrighted material. The label and album

contain no indication that the work is a “parody.” A genuine issue

of material fact exists with regard to whether the Defendants have

made too extensive a use of the copyrighted work. Therefore, the

motion should be denied.

B. A genuine issue of material fact exists as to whether the

use made of “Oh, Pretty Woman” by The 2 Live Crew is a

fair use under § 107 of the Copyright Act.

118a

Appendix K

1. The Legal Standard Applicable to a Fair Use Question

To promote the widespread dissemination of ideas, the

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

v. Nation Enterprises, 471 U.S. 539, 546, 105 S. Ct. 2218, 2223, 85

grants copyright holders a limited monopoly to take certain actions

with regard to their works. See 17 U.S.C. § 106. Among these is the

exclusive right to create a derivative work based on the

copyrighted work. /d. A derivative work is “a work based upon one

or more preexisting works, such as a... musical arrangement,

sound recording, or any other form in which a work may be recast,

transformed, or adapted.” 17 U.S.C. § 101. In this case, the

Defendants have unquestionably created a derivative work by

making a musical arrangement, sound recording, and adaptation of

“Oh, Pretty Woman.”

The judicially created doctrine of fair use carves out a limited

exception to the exclusive rights guaranteed to authors by § 106 of

the Copyright Act. Fair use is now codified in § 107 of the

whether a particular use is fair:

Notwithstanding the provisions of section 106,

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

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of copyright. In determining whether the use

made of a work in any particular case is a fair

use the factors to be considered shall include—

(1) the purpose and character of the

use, including whether such use is of a

commercial nature or is for nonprofit

educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the

portion used in relation to the

copyrighted work as a whole; and

(4) the effect of the use upon the

potential market for or value of the

copyrighted work.

The Defendants, in their Motion to Dismiss, have attempted to

blur the distinction between parody and fair use, apparently

contending that any parody use is presumptively a fair use. The

cases make it clear, however, that the exact opposite is the law: a

parody is not presumptively a fair use. Fisher v. Dees 794 F.2d 432,

435 (9th Cir. 1986). “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. (emphasis in original). See also New Line Cinema

Corp. v. Bertlesman Music Group, 693 F. Supp. 1517, 1525

(S.D.N.Y. 1988). Therefore, even assuming, arguendo, that the

Defendants can prove that their use is a parody, a point Acuff-Rose

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specifically denies, they still must prove that their parody use was a

fair use as that term is defined in § 107 of the Copyright Act. A

genuine issue of material fact exists as to whether the Defendants’

use was fair.

The question of whether a particular use is fair is a mixed

question of law and fact. Harper & Row, Publishers, Inc. v. Nation

Enterprises, 471 U.S. 539, 560, 105 S. Ct. 2218, 2230, 85 L. Ed. 2d

588 (1985). Only when the District Court has found facts sufficient

to evaluate each of the four factors set out in § 107 may it conclude

as a matter of law that the challenged use is or is not a fair use. /d. In

this case, the facts thus far presented regarding the four factors set

out in § 107 are insufficient for the Court to decide as a matter of

law whether Defendants’ use is fair.

The Defendants would have the Court dismiss the four-factor

fair use test mandated by Congress and adopted by the courts in

favor of a three-part test. (Defendants’ Brief at p. 17). No court has

adopted Defendants’ three-part analysis. Moreover, the proposed

three-part analysis would be directly contrary to the mandatory

language used in § 107. Court decisions interpreting § 107 have

uniformly considered the four factors that Congress mandated for

evaluation of fair use questions. For example, in Harper & Row,

Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 561, 105 S.

Ct. 2218, 2231, 85 L. Ed. 2d 588 (1985), the Supreme Court held

that § 107 requires a case-by-case analysis and noted that the

factors are non-exclusive. No case stands for the proposition that

fewer than the four factors are to be considered. To the contrary,

§ 107 of the Copyright Act of 1576 explicitly states “In

determining whether the use made of a work in any particular case

is a fair use the factors to be considered shall include ...” 17

U.S.C. § 106. The mandatory consideration of the four factors is

self-evident. Accordingly, this case must be examined in light of at

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least the four non-exclusive factors set out in § 107. See Bourne

Co. v. Speeks, 670 F. Supp. 777, 780 (E.D. Tenn. 1987).

As demonstrated below, application of the four factors to the

facts of this case as thus far developed makes it clear that a genuine

issue exists as to material facts.

Defendants also assert that the Court should adopt an

“economic model” of fair use analysis, citing a law review note,

The Parody Defense to Copyright Infringement: Productive Fair

Use After Betamax, 97 Harv. L. Rev. 1395 (1984). This model,

according to Defendants, suggests that any use of social value

should be considered fair, if it does not substitute for exploitation

of the original work. In this case, the Defendants’ work does

substitute for Acuff-Rose’s exploitation of the work. Exploitation

is not limited to Roy Orbison’s recording of the work, but includes

licenses for derivative uses. (Teifer Declaration at { 10). The note

cited above recognizes this fact. “The ‘economic’ model of fair use

posits that socially valuable use of an original should be limited

only when the taking would result in significant commercial harm

to the holder of the copyright.” Jd. at 1398. Thus, even if

Defendants’ “economic model” were the law, there is a genuine

issue of material fact present in this case.

a. The Purpose and Character of the use

The first factor set out for consideration in § 107 is the purpose

and character of the use, including whether the use is of a

commercial nature. The fact that a publication is commercial as

opposed to nonprofit is a separate factor that tends to weigh against

a finding of fair use. “Every commercial use of copyrighted

material is presumptively an unfair exploitation of the monopoly

privilege that belongs to the owner of the copyright.” Harper &

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Row, 471 U.S. at 562, 105 S. Ct. at 2231 (quoting Sony Corp. of

America v. Universal City Studios, Inc., 464 U.S. 417, 454, 1045S.

Ct. 774, 793, 78 L. Ed. 2d 574 (1984). Where a use is for

commercial purposes, this factor weighs in favor of the party

claiming the infringement. “The crux of the profit/nonprofit

distinction is not whether the sole motive of the use is monetary

gain but whether the user stands to profit from exploitation of the

copyrighted material without paying the customary price.” /d., 464

U.S. at 562, 105 S. Ct. at 2231.

In this case, there can be no dispute that the Defendants’ use of

“Oh, Pretty Woman” was for a commercial purpose and, regardless

of motive, the Defendants stood to profit from their unauthorized

use of Acuff-Rose’s copyrighted material. The work the

Defendants created was included on a commercially distributed

record album sold for the purpose of making a profit. Defendants in

this case used the copyrighted material without paying any price

whatsoever. This factor of the fair use analysis weighs in favor of

the copyright holder, Acuff-Rose. This use was presumptively an

unfair exploitation of Acuff-Rose’s monopoly privilege to create a

derivative work under § 106(2).

b. Nature of the Copyrighted Work

The second factor that Congress mandated for consideration is

the nature of the copyrighted work. This factor weighs in favor of

the copyright holder where the work is creative and expressive

rather than merely factual. This fair use factor also favors Acuff-

Rose.

In MCA Inc. v. Wilson, 677 F.2d 180, 182 (2d Cir. 1981), the

court held that under this factor it was important to consider

whether the work taken was creative, imaginative, and original and

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whether it represented a substantial investment of time and labor

made in anticipation of a financial return. similarly, in Hustler

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

1986), the court held that the scope of fair use was greater when

informational, as opposed tc creative, works were involved. See

also Marcus v. Rowley, 695 F.2d 1171, 1176 (9th Cir. 1983); 3 M.

Nimmer, Nimmer on Copyright § 13.05[a][2].

Once again, there can be no dispute that the material copied by

Defendants was creative and imaginative, not merely factual. Roy

Orbison and William Dees both invested time and labor to create

“Oh, Pretty Woman” in expectation of financial return. The nature

of the copyrighted work factor of the fair use analysis weighs in

favor of Acuff-Rose, the copyright holder.

Furthermore, musical works deserve special protection under

this factor of the analysis. Musical works such as “Oh, Pretty

Woman” are unique in that they involve two separate and distinct

elements — music and lyrics — both 6f which are deserving of

protection. See 1 M. Nimmer, Nimmer on Copyright § 2.05[B];

Stratchborneo v. Arc Music Corp., 357 F. Supp. 1393 (S.D.N.Y.

1973). Both the music and the lyrics are creative elements

deserving copyright protection, as opposed to the usual case

involving only words. This distinction in the nature of the work

weighs this factor even more heavily in favor of Acuff-Rose.

c. Amount and Substantiality of the Portion Used

The third factor in the fair use analysis is the amount and

substantiality of the portion of the work used. Courts break this

factor into a two-pronged analysis. The first of these two prongs is

the quantitative analysis, i.e. how much is used; the second prong is

the qualitative analysis, i.e. how important is the portion used.

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i. Quantitative

This prong of the amount and substantially of the portion used

factor examines how much of the original work was taken and how

much of the new work it comprises. The statutory substantiality

consideration should examine “the amount and substantiality of

the portion used in relation to the copyrighted work as a whole.”

Harper & Row, 471 U.S. at 564, 105 S. Ct. at 2233.

In MCA, Inc. v. Wilson, 425 F. Supp. 443 (S.D.N.Y. 1976), the

court decided that the taking was substantial. The case involved a

“parody” of the song “Boogie Woogie Bugle Boy of Company B.”

The “parody” was called “Cunnilingus Champion of Co. C.” The

district court in Wilson considered persuasive the following items

of evidence relating to the amount of the work that was used:

copying “Bugle Boy’s” “eight to the bar rhythm,” the similarity

and alliteration of both songs’ titles, and the “similarity in the

movement of the musical [lines].” Wilson, 425 F. Supp. at 447-48.

On the appeal of this case, the circuit court concluded, “Use of

copyrighted material without the owner’s consent generally will

not be considered reasonable if it extensively copies or

paraphrases the original . . . .” MCA, Inc. v. Wilson, 677 F.2d 180,

183 (2d Cir. 1981).

In Fisher v. Dees, 794 F.2d 432 (9th Cir. 1986), heavily relied

on by Defendants, the court found that the infringer had used only

six of the song’s 38 bars of music and that the use made up only 29

seconds of the 40 minute total of the record album. The Defendants

in this case have used much more than that. (Spielman Declaration

at J { 6-8). However, even use of a small amount of a work can be

an unfair use. In Harper & Row, the infringers used only 300 words

of a 200,000 word book and the words taken constituted only 13

percent of the infringing article. Nonetheless, the Supreme Court

concluded that the use was not fair.

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In this case, the Defendants have unquestionably used a

substantial portion of Acuff-Rose’s copyrighted work. See

Spielman Declaration. The quantitative portion of the analysis is

therefore unquestionably in favor of Acuff-Rose.

ii. Qualitative

This prong analyzing of the amount and substantiality of the

portion used factor examines the quality, or importance, of the

material that is lifted from the copyrighted work. This factor was

key in the Harper & Row case. In that case the Nation magazine

had excerpted portions of Gerald Ford’s upcoming biography.

Although the quotations used were only a small part of the total

biography, the Supreme Court held that the defendant had taken the

“heart” of the work. The Court concluded the particular portions

taken were chosen “because they qualitatively embodied Ford's

distinctive expression.” Harper & Row, 471 U.S. at 565, 105 S. Ct.

at 2233. Accordingly, the Supreme Court rejected the conclusion

of the Second Circuit Court of Appeals that the defendant's taking

was “meager,” where the “expressive value of the excerpts and

their key role in the infringing work” were qualitatively

significant. See Harper & Row, 471 U.S. at 565-66, 105 S. Ct. at

2233. See also Salinger v. Random House, Inc., 811 F.2d 90, 98 (2d

Cir. 1987).

Further, a taking that is “insubstantial with respect to the

infringing work” does not necessarily find shelter under fair use.

Harper & Row, 471 U.S. at 565, 105 S. Ct. at 2233. Quoting Judge

Learned Hand, the Supreme Court observed, “ ‘no plagiarist can

excuse the wrong by showing how much of his work he did not

pirate.’ ” /d. (citation omitted).

As discussed above, the portions taken from “Oh, Pretty

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Woman” are qualitatively significant to the unique identity of the

original. (Spielman Declaration at { 7-9). In fact, those portions

constitute the heart of “Oh, Pretty Woman.” The Defendants took

key passages from the copyrighted work that were chosen for their

world-wide recognizable value, including the key words from its

name. Defendants took the catchy and repetitive guitar refrain, of

“Oh, Pretty Woman.” Defendants used that same guitar refrain, as

well as the opening drum beat, the opening lyric, the melody, and

the chorus of “Oh, Pretty Woman” throughout their infringing

derivative work in order to catch and sustain the listener's attention

and to capitalize on the copyrighted composition. In so doing,

Defendants took the “heart” of Acuff-Rose’s copyrighted work.

The Defendants should not be allowed to prosper from

repeatedly displaying the most ingenious portions of “Oh, Pretty

Woman.” Thus, this factor weighs decidedly in favor of Acuff-

Rose. At the very least, a genuine issue exists as to this material

fact. A comparison of the declaration submitted by Acuff-Rose’s

expert and the affidavit submitted by Defendants’ expert shows

that whether Defendants took too much of “Oh, Pretty Woman” is

squarely at issue in this case. Compare Brand affidavit with

Spielman Declaration at {J 7-9).

The Defendants admit in their brief that courts tend to find

extensive takings unreasonable particularly when the contested

use is parody because the parodist has derisively turned the

original author’s work against him. (Brief at 14). The Defendants

then argue, citing only a law review article, that this is inconsistent

with the goal of the Copyright Act. The Defendants ignore the fact

that the goal of the Copyright Act is achieved by granting the

471 U.S. at 546, 105 S. Ct. at 2223. To allow wholesale uses of the

work under the guise of fair use would undercut the Copyright Act

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by denying the Congressional grant of monopoly rights to

their works public. In New Line Cinema Corp. v. Bertlesman Music

Group, Inc., 693 F. Supp. 1517 (S.D.N.Y. 1988), the court pointed

out “[bjecause the copyright laws exist to stimulate artistic

creativity for the benefit of the public, care must be taken to ensure

the artist has sufficient financial motivation for creativity.” /d. at

1527 (citing Wilson, 677 F.2d at 183). For this reason Congress

mandated, and the courts have consistently held, that an

examination of the amount of the copyrighted work used should be

considered when fair use determinations are made.

Because the parties vigorously dispute whether the amount

taken constitutes a fair use of Acuff-Rose’s copyrighted property, a

genuine issue of material fact exists. Because this issue cannot be

decided as a matter of law, Defendants’ motion should be denied.

d. Effect on Potential Market for or Value of the Work

The fourth factor to be considered in determining whether a

particular infringement is a fair use is the effect the new work will

have on the potential market for

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