# Joint Appendix — Campbell v. Acuff-Rose Music, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0382%3A05 ## Record - **Collection:** Supreme Court brief - **Document type:** Joint Appendix - **Published:** January 1, 1994 - **Citation:** 510 U.S. 569 ## 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 204a Appendix O F. “Person” means any natural person, artificial person, corporation, firm, company, sole proprietorship, partnership, joint venture, limited partnership, business association or other entity having legal existence. G. “Document” means and relates to any written, printed, typed, recorded, taped, or other graphic matter of any kind fixed in any tangible medium of expression, which is in your possession, care, custody or control, including copies that contain information that differs from the original through marginalia, annotation, emphasis, or deletion. This definition includes documents with respect to which you may assert any privilege. H. “Communications” means and relates to each transmission of information by oral, graphic, written, pictorial, or otherwise perceptible means, including, but not limited to, telephone conversations, letters, documents, memoranda, telegrams, facsimile transmissions, meetings, and personal conversations. I. “Oh, Pretty Woman” means and relates to each version of the copyrighted work that is alleged to have been infringed in the Complaint in Acuff-Rose Music, Inc. v. Luther Campbell, et al. J. “Pretty Woman” refers to that version or any variation thereof of the song entitled “Pretty Woman” performed by The 2 Live Crew and contained on the album As Clean As They Wanna Be, including but not limited to any music, lyrics, notes, videos, preparatory documents, masters, outtakes, and any other materials used in connection with the creation or production of this song. This definition also includes each preliminary draft of any of the above. 205a Appendix O K. “Relates to” means constitutes, contains, records, discusses, summarizes, analyzes, discloses, or refers to, in whole Or in part. L. “Including” means including but not limited to. M. “And” and “or” shall be construed either conjunctively or disjunctively as necessary to bring within the scope of this document request any information or document that might otherwise be construed to be outside its scope. N. References to the plural shall include the singular; references to the singular shall include the plural. O. References to the feminine shall include the masculine; references to the masculine shall include the feminine. II . INSTRUCTIONS A. Unless otherwise stated, the period covered by this request for production is the period between July 15, 1988, and the date you receive this request, but this time specifically does not alter your obligations under Federal Rule of Civil Procedure 26(e) and Local Rule 9 of the Middle District of Tennessee seasonably to supplement your responses. B. For each document for which you assert a claim of privilege, provide the following information: l. the name of the author; 2. the name of the person to whom the document was addressed or sent; 206a Appendix O 3. the name of each person other than the author and recipient who has seen the document; 4. the date shown on the document and the date the document was created, if different; 5. the number of pages in the document; 6. abrief statement of the subject matter; — 7. the nature of the privilege being asserted; and 8. the number of the paragraph of this request to which the document is otherwise responsive. III. SCHEDULE OF DOCUMENTS 1. Each document that relates to “Pretty Woman.” 2. Each document that relates to “Oh, Pretty Woman.” 3. Each document that you sent to Acuff-Rose Music, Inc., relating to either “Pretty Woman” or “Oh, Pretty Woman.” 4. Each document that you received from Acuff-Rose Music, Inc., relating to either “Pretty Woman” or “Oh, Pretty Woman.” 5. Acopy of each recorded version of “Pretty Woman.” 6. A copy of your source material for your recording of “Pretty Woman.” 7. A copy of each musical score, musical arrangement, 207a Appendix O printed sheet music, lead sheet, orchestration, lyric sheet, and recording in any form relating to “Pretty Woman.” 8. A copy of each musical score, musical arrangement, printed sheet music, lead sheet, orchestration, lyric sheet and recording in any form relating to “Oh, Pretty Woman.” 9. Each document that relates to each meeting you attended, or any Defendant or Defendants attended, at which “Pretty Woman” was discussed. 10. Each document that relates to each meeting you attended, or any Defendant or Defendants attended, at which “Oh, Pretty Woman” was discussed. 11. Each document prepared by, for, or at your request, or the request of any Defendant or Defendants relating to any recording of “Pretty Woman.” 12. Each document prepared by, for, or at your request or the request of any Defendant or Defendants relating to “Oh, Pretty Woman.” 13. Each document that relates to promotional material prepared for the album by The 2 Live Crew titled As Clean As They Wanna Be. 14. Each document that relates to the facts and circumstances surrounding the decision to include “Pretty Woman” on the album As Clean As They Wanna Be. 15. Each document that discusses your use of “Oh, Pretty Woman.” 208a Appendix O 16. Documents sufficient to show separately each of the following: a. the total amount of income you received from the recording of “Pretty Woman”; b. the total amount you paid to produce “Pretty Woman”; c. the name, business affiliation, address, telephone number, service performed or product provided, and the amount of the payment for each person or entity that received payment for services or products related to the recording of “Pretty Woman.” 17. Each document that relates to each attempt to create lyrics for “Pretty Woman.” 18. Each document that relates to each attempt to create music for “Pretty Woman.” 19. Each document that relates to each communication between you and any of the Defendants and between the Defendants and any other persons, concerning the actual, proposed, or possible use of the music and lyrics of “Oh, Pretty Woman.” 20. Each document that relates to the ownership of the copyright for “Pretty Woman.” 21. Each document that relates to the ownership of the copyright for “Oh, Pretty Woman.” 22. Each document that relates to each communication with Acuff-Rose Music, Inc., concerning the actual, proposed, or 209a Appendix O possible use of the music, lyrics or other copyrighted elements of “Oh, Pretty Woman.” 23. Each document that relates to each communication between you and any other person concerning the actual, proposed, or possible use of the music, lyrics, or other copyrighted elements of “Oh, Pretty Woman.” 24. Each document that relates to the rejection by Acuff-Rose Music, Inc., or any other person, of your request to use the lyrics, music, or other copyrighted elements of “Oh, Pretty Woman.” 25. Each document that relates to each communication between you and Acuff-Rose Music, Inc., relating to the actual, proposed, or possible preparation of a derivative work of “Oh, Pretty Woman.” 26. Each document that relates to each communication between you and any person relating to the actual, proposed, or possible preparation of a derivative work of “Oh, Pretty Woman.” 27. Each document that relates to each communication with Acuff-Rose Music, Inc., or any other person, for a license for the use of “Oh, Pretty Woman” on the album As Clean As They Wanna Be, or any other use. 28. Each document that relates to each request you made for a license for each song on the album As Clean As They Wanna Be from any person. 29. Documents sufficient to show the date of the creation of “Pretty Woman.” 210a Appendix O 30. Documents sufficient to show the date of the recording of “Pretty Woman.” 31. Documents sufficient to identify each time and place “Pretty Woman” was performed publicly. 32. Documents sufficient to show the date(s) that the album As Clean As They Wanna Be was recorded. 33. Each document that relates to music, lyrics, or concepts proposed or considered for As Clean As They Wanna Be. 34. Documents sufficient to identify by name, business affiliation, address, and telephone number each person involved in writing, recording, producing, manufacturing, or developing “Pretty Woman.” 35. Each document used as a source in creating “Pretty Woman.” 36. Each document that relates to each alternative version of “Pretty Woman.” 37. Each document that relates to the review of “Pretty Woman” by a musicologist, attorney, or any advisor. 38. Each document that relates to or contains a comparison of the music or lyrics of “Pretty Woman” with the music or lyrics of “Oh, Pretty Woman.” 39. Documents sufficient to identify Pac Jam Publishing (BMI). 21la Appendix O 40. Documents sufficient to identify the Ghetto Style DJ's. 41. Each document related to all royalties received by you from the sale of As Clean As They Wanna Be. 42. Documents sufficient to show the total income received by you, Luke Skyywalker Records, Luke, Inc., or any other entity from the album As Clean As They Wanna Be. 43. Documents sufficient to show the total income received by you from the album As Clean As They Wanna Be. 44. Documents sufficient to show the total income received by Christopher Wongwon from the album As Clean As They Wanna Be. 45. Documents sufficient to show the total income received by Mark Ross from the album As Clean As They Wanna Be. 46. Documents sufficient to show the total income received by David Hobbs from the album As Clean As They Wanna Be. 47. Documents sufficient to show the total income received by each person other than the members of The 2 Live Crew from the album As Clean As They Wanna Be. 48. Documents sufficient to show: a. the date and destination of each shipment of As Clean As They Wanna Be; b. the price paid to you for each copy of As Clean As They Wanna Be; 212a Appendix O c. the total number of copies thus far manufactured of As Clean As They Wanna Be; d. the total number of copies of As Clean As They Wanna Be that have been sold, both at the wholesale and retail levels; e. the total dollar amount of income generated by the sale of As Clean As They Wanna Be. 49. Copies of all contracts with wholesalers, retailers, distributors and any other sellers or dealers of As Clean As They Wanna Be. 50. Each document that relates to reports sent to or prepared for you regarding the sales of As Clean As They Wanna Be. 51. Documents sufficient to show the total number of copies of As Ciean As They Wanna Be distributed for promotional purposes. 52. Documents sufficient to show the retail selling price and the wholesale price of As Clean As They Wanna Be. 53. Each document that relates to payment of mechanical or other royalties regarding the sales of As Clean As They Wanna Be. 54. Documents sufficient to show your average profit per copy of As Clean As They Wanna Be. 55. Documents sufficient to show your average profit per month on the sale of As Clean As They Wanna Be for each month since the release of As Clean As They Wanna Be, including any advance sales. 213a Appendix O 56. Contracts, agreements, memoranda, letters and other documents sufficient to show each planned or actual concert or other personal appearance by The 2 Live Crew in Tennessee. 57. Contracts, agreements, memoranda, letters and other documents sufficient to show each shipment of musical recordings and other materials by you into Tennessee, including, but not limited to, items such as jackets, T-shirts, posters, caps, and buttons. 58. A copy of the certificate of incorporation for Luke Skyywalker Records and Luke, Inc. 59. A copy of the certificate of incorporation for each corporation in which you hold more than a five percent interest. 60. A copy of any articles of association or partnership to which you are a party or on which your name appears. 61. A copy of each annual report of Luke Skyywalker Records and Luke, Inc. since 1987. 62. Each document related to any subsidiaries of Luke Skyywalker Records or Luke, Inc. 63. A copy of each annual report for any entity in which you or Luke, Inc. owns more than a five percent interest. 64. Acopy of Luke Skyywalker Records’ most recent audited financial report. 65. A copy of your tax returns since January 1, 1989, including all attachments. 214a Appendix O 66. A copy of all tax returns and attachments for any organization in which you or Luke, Inc. owns more than a five percent interest. 67. Documents sufficient to show your policy, practice, or procedure in retaining or discarding documents. 68. Each document related to your retention or destruction of any documents. 69. Documents sufficient to show the full names, mailing, business, and residence addresses and phone numbers of you, Luke, Inc., Christopher Wongwon, Mark Ross, and David Hobbs. 70. Documents sufficient to show the accounts you or Luke, Inc., or any organization in which you held more than a five percent interest, maintained since July 15, 1989, in any bank, savings institution, mutual account, fund, or trust. 71. A copy of each deposit receipt you received from any bank, savings institution, mutual account, fund, or trust since July 15, 1989. 72. Copies of each statement you received from any bank, savings institution, mutual account, fund, or trust since July 15, 1989. 73. Copies of each statement of net worth and listing of assets created in applying for credit or loans which you have completed since July 15, 1989. 74. Copies of correspondence and documents related to any copyright search made regarding “Oh, Pretty Woman.” 21Sa Appendix O 75. Each document that discusses ownership of copyright of “Oh, Pretty Woman” or “Pretty Woman.” 76. Documents sufficient to identify each individual who was involved in the performance or production of “Pretty Woman” and his or her respective functions or activities. 77. Each document that discusses the use of sampling or any other mechanical technique for the production of “Pretty Woman.” 78. Each document related to each instance in which a copyright claim or concern has been raised with regard to any elements of any of your work. 79. Each document you sent to or received from any person related to “Pretty Woman.” 80. Each document which relates to your communications with ASCAP or BMI in Nashville, Tennessee; Los Angeles, California; and New York, New York. 81. Each document that contained instructions or related to the manner in which the search for documents requested in this request for production of documents was performed. 82. Each document consulted in locating or obtaining the documents requested in this request for production of documents. 83. Each document prepared in response to this request for production of documents. 84. Documents sufficient to identify by name, address, and title or job description each person who searched for documents 216a Appendix O responsive to this request for production of documents. 85. Each document consulted to determine where to search for documents requested in this request for production of documents. CERTIFICATE OF SERVICE This is to certify that a copy of the foregoing was served with the initial process, including Summons and Complaint, upon the following: Bruce S. Rogow, Esq. Professor of Law Nova University Law Center Nova University Fort Lauderdale, Florida 33314 Luther R. Campbell, a/k/a Luke Skyywalker 3050 Biscayne Boulevard Miami, Florida 33137 Christopher Wongwon, a/k/a Fresh Kid Ice 13165 North West 11th Avenue Miami, Florida 33168 Mark Ross, a/k/a Brother Marquis 3050 Biscayne Boulevard Miami, Florida 33137 David Hobbs, a/k/a Mr. Mixx 3050 Biscayne Boulevard Miami, Florida 33137 The 2 Live Crew 217a Appendix O 3050 Biscayne Boulevard Miami, Florida 33137 Luke Skyywalker Records 3050 Biscayne Boulevard Miami, Florida 33137 s/ Elizabeth B. Mamey 218a Appendix O EXHIBIT B KING & BALLOW LAW OFFICES 1200 NOEL PLACE 200 FOURTH AVENUE, NORTH NASHVILLE, TENNESSEE 37219 TELEPHONE: 615/259-3456 TELECOPY: 615/254-7907 July 12, 1990 HAND DELIVERED Alan Turk, Esq. 3310 West End Avenue Nashville, TN 37203 Re: Acuff-Rose v. Luther R. Campbell et al. Dear Alan: Pursuant to your representation that you will accept service on behalf of all defendants in the referenced lawsuit, please find enclosed the Summons, Complaint, and Plaintiff’s First Request for Production of Documents for Mark Ross, David Hobbs, and The 2-Live Crew. Sincerely, s/ Betty Marney Elizabeth B. Marney EBM/am Enclosures 219a Appendix O EXHIBIT C KING & BALLOW LAW OFFICES 1200 NOEL PLACE 200 FOURTH AVENUE, NORTH NASHVILLE, TENNESSEE 37219 TELEPHONE: 615/259-3456 TELECOPY: 615/254-7907 August 31, 1990 VIA FACSIMILE Alan Turk, Esq. 3310 West End Avenue Nashville, TN 37203 Re: Acuff-Rose, Inc. v. The Two Live Crew Dear Alan: Since I have been unable to reach you today, I am writing in regard to your overdue discovery in the referenced lawsuit. Our client is understandably anxious to have the documents we requested. However, we understand your logistical difficulties and are willing to work with you. To that end, we will be willing to forgo filing a Motion to Compel for the present if you will send us a letter stating that you will retrieve all of the requested documents from your client and 220a Appendix O deliver them to us no later than Friday, September 14, 1990. If you are unable to agree to this offer or to meet this timetable, please let us know immediately so that we can discuss this matter. If we cannot come to an understanding, we wili be forced to file a Motion to Compel Production. Therefore, please advise us of your decision by the end of business Tuesday, September 4, 1990. Sincerely, s/ Andy Norwood E. Andrew Norwood EBM/tt 221a Appendix O EXHIBIT D IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION NO: 3 90 0524 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 . DEFENDANTS’ RESPONSE TO PLAINTIFF’ S FIRST REQUEST FOR PRODUCTION OF DOCUMENTS 1. Each document that relates to “Pretty Woman.” ANSWER: OBJECTION. The Plaintiff’s request is overly broad in accordance with Rule 26 of the Federal Rules of Civil 222a Appendix O Procedure as defined in definition K of the Plaintiff's First Set of Request for Production of Documents. The Defendants have produced all relevant documents concerning “Pretty Woman.” The Defendants further object to the production of other documents which “relate” to the song “Pretty Woman” because said documents are protected under the attorney work product privilege and the attorney-client privilege. 2. Each document that relates to “Oh, Pretty Woman.” ANSWER: None. 3. Each document that you sent to Acuff-Rose Music, Inc., relating to either “Pretty Woman” or “Oh, Pretty Woman.” ANSWER: The Defendants will produce the requested documents. 4. Each document that you received from Acuff-Rose Music, Inc.., relating to either “Pretty Woman” or “Oh, Pretty Woman.” ANSWER: The Defendants will produce the requested documents. 5. Acopy of each recorded version of “Pretty Woman.” ANSWER: The Defendants will produce a requested copy. 6. A copy of your source material for your recording of “Pretty Woman.” ANSWER: None. 7. A copy of each musical score, musical arrangement, printed sheet music, lead sheet, orchestration, lyric sheet, and recording in 223a Appendix O any form relating to “Pretty Woman.” ANSWER: No documents exist today. Any documents which may have been utilized in the studio no longer exist. 8. A copy of each musical score, musical arrangement, printed sheet music, lead sheet, orchestration, lyric sheet and recording in any form relating to “Oh, Pretty Woman.” ANSWER: None. 9. Each document that relates to each meeting you attended, or any Defendant or Defendants attended, at which “Pretty Woman” was discussed. ANSWER: None. 10. Each document that relates to each meeting you attended, or any Defendant or Defendants attended, at which “Oh, Pretty Woman” was discussed. ANSWER: None. 11. Each document prepared by, for; or at your request, or the request of any Defendant or Defendants relating to any recording of “Pretty Woman.” ANSWER: The Defendants will produce the requested documents. 12. Each document prepared by, for, or at your request, or the request of any Defendant or Defendants, relating to “Oh, Pretty Woman.” 224a Appendix O ANSWER: None. 13. Each document that relates to promotional material prepared for the album by The 2 Live Crew titled As Clean As They Wanna Be. ANSWER: None. 14. Each document that relates to the facts and circumstances surrounding the decision to include “Pretty Woman” on the album As Clean As They Wanna Be. ANSWER: None. 15. Each document that discusses your use of “Oh, Pretty Woman.” ANSWER: None. 16. Documents sufficient to show separately each of the following: a. _ the total amount of income you received from the recording of “Pretty Woman.” ANSWER: None. b. the total amount you paid to produce “Pretty Woman”; ANSWER: None. c. the name, business affiliation, address, telephone number, service performed or product provided, and the amount of the 225a Appendix O payment for each person or entity that received payment for services or products related to the recording of “Pretty Woman”. ANSWER: None. All of the participants associated with the recording of “Pretty Woman” were employees of the corporate defendant. The studio where “Pretty Woman” was recorded is owned by the corporate Defendant. 17. Each document that relates to each attempt to create lyrics for “Pretty Woman”. ANSWER: None. 18. Each document that relates to each attempt to create music for ~ “Pretty Woman.” ANSWER: None. 19. Each document that relates to each communication between you and any of the Defendants and between the Defendants and any other persons, concerning the actual, proposed, or possible use of the music and lyrics of “Oh, Pretty Woman.” ANSWER: The Defendants will produce the requested documents. 20. Each document that relates to the ownership of the copyright for “Pretty Woman.” ANSWER: None. 21. Each document that relates to the ownership of the copyright for “Oh, Pretty Woman.” 226a Appendix O ANSWER: None. 22. Each document that relates to each communication with Acuff-Rose Music, Inc., concerning the actual, proposed, or possible use of the music, lyrics, or other copyrighted elements of “Oh, Pretty Woman.” ANSWER: The Defendants will produce the requested documents. 23. Each document that relates to each communication between you and any other person concerning the actual, proposed, or possible use of the music, lyrics, or other copyrighted elements of “Oh, Pretty Woman.” ANSWER: The Defendants will produce the requested documents. 24. Each document that relates to the rejection by Acuff-Rose Music, Inc., or any other person, of your request to use the lyrics, music, or other copyrighted elements of “Oh, Pretty Woman.” ANSWER: The Defendants will produce the requested documents. 25. Each document that relates to each communication between you and Acuff-Rose, Music, Inc., relating to the actual, proposed, or possible preparation of a derivative work of “Oh, Pretty Woman.” ANSWER: The Defendants will produce the requested documents. 26. Each document that relates to each communication between you and any person relating to the actual, proposed, or possible preparation of a derivative work of “Oh, Pretty Woman.” 227a Appendix O ANSWER: The Defendants will produce the requested documents. 27. Each document that relates to each communication with Acuff-Rose Music, Inc., or any other person, for a license for the use of “Oh, Pretty Woman” on the album As Clean As They Wanna Be, or any other use. ANSWER: The Defendants will produce the requested documents. 28. Each document that relates to each request you made for a license for each song on the album As Clean As They Wanna Be from any person. ANSWER: OBJECTION. The Defendants request for any license for any song on the album As Clean As They Wanna Be is not relevant under Rule 26 of the Federal Rules of Civil Procedure and will not lead to the discovery of relevant information. 29. Documents sufficient to show the date of the creation of “Pretty Woman.” ANSWER: The Defendants will produce the requested documents. 30. Documents sufficient to show the date of the recording of “Pretty Woman.” ANSWER: The Defendants will produce the requested documents. 31. Documents sufficient to identify each time and place “Pretty Woman” was performed publicly. ANSWER: None. 228a Appendix O 32. Documents sufficient to show the date(s) that the album As Clean As They Wanna Be was recorded. ANSWER: OBJECTION. The Defendants have produced documents which evidences when the song “Pretty Woman” was recorded, March 6, 1989. The songs contained on the album As Clean As They Wanna Be were recorded on different dates during a several month period. The Defendants object to the production of these documents as not relevant under Rule 26 of the Federal Rules of Civil Procedure and will not lead to the discovery of relevant information. 33. Each document that relates to music, lyrics, or concepts proposed or considered for As Clean As They Wanna Be. ANSWER: None. 34. Documents sufficient to identify by name, business affiliation, address, and telephone number each person involved in writing, recording, producing, manufacturing, or developing “Pretty Woman.” ANSWER: None. 35. Each document used as a source in creating “Pretty Woman.” ANSWER: None. 36. Each document that relates to each alternative version of “Pretty Woman.” ANSWER: None. 229a Appendix O 37. Each document that relates to the review of “Pretty Woman” by a musicologist, attorney, or any advisor. ANSWER: OBJE TION. The Defendants object to the production of the requested documents and rely upon the attorney work product privilege. 38. Each document that relates to or contains a comparison of the music or lyrics of “Pretty Woman” with the music or lyrics of “Oh, Pretty Woman.” ANSWER: OBJECTION. The Defendants object to the production of the requested documents and rely upon the attorney work product privilege. 39. Documents sufficient to identify Pac Jam Publishing (BMI). ANSWER: OBJECTION. The Defendants object to the production of the requested documentation as not reievant under Rule 26 of the Federal Rules of Civil Procedure and will not lead to the discovery of relevant information. 40. Documents sufficient to identify the Ghetto Style DJ's. ANSWER: OBJECTION. The Defendants object to the production of the requested documentation as not relevant under Rule 26 of the Federal Rules of Civil Procedure and will not lead to the discovery of relevant information. 41. Each document related to all royalties received by you from the sale of As Clean As They Wanna Be. ANSWER: None. 230a Appendix O 42. Documents sufficient to show the total income received by you, Luke Skyywalker Records, Luke, Inc., or any other entity from the album As Clean As They Wanna Be. ANSWER: The Defendants will produce the requested documents. 43. Documents sufficient to show the total income received by you from the album As Clean As They Wanna Be. ANSWER: The Defendants will produce the requested documents. 44. Documents sufficient to show the total income received by Christopher Wongwon from the album As Clean As They Wanna Be. ANSWER: The Defendants will produce the requested documents. 45. Documents sufficient to show the total income received by Mark Ross from the album As Clean As They Wanna Be. ANSWER: The Defendants will produce the requested documents. 46. Documents sufficient to show the total income received by David Hobbs from the album As Clean As They Wanna Be. ANSWER: The Defendants will produce the requested documents. 47. Documents sufficient to show the total income received by each person other than the members of The 2 Live Crew from the album As CleanAs They Wanna Be. ANSWER: OBJECTION. The documents requested by the Plaintiff would be very burdensome to produce if not impossible. 23la Appendix O The Defendants would state that the documents requested are not relevant in accordance with Rule 26 of the Federal Rules of Civil Procedure and will not lead to the discovery of relevant information. 48. Documents sufficient to show: a. the date and destination of each shipment of As Clean As They Wanna Be; ANSWER: OBJECTION. The documents requested by the Plaintiff would be very burdensome to produce if not impossible. The Defendants would state that the documents requested are not relevant in accordance with Rule 26 of the Federal Rules of Civil Procedure and will not lead to the discovery of relevant information. b. the price paid to you for each copy of As Clean As They Wanna Be; ANSWER: See the Record Activity Report which is produced. é. the total number of copies thus far manufactured of As Clean As They Wanna Be; ANSWER: The Defendants will produce the requested documents. d. the total number of copies of As Clean As They Wanna Be that have been sold, both at the wholesale and retail levels: ANSWER: The Defendants will produce the requested documents as to the total number of copies of As Clean As They Wanna Be sold at the wholesale level. The Defendants do not have any documents 232a Appendix O evidencing the sale of As Clean As They Wanna Be at the retail level. e. the total dollar amount of income generated by the sale of As Clean As They Wanna Be. ANSWER: The Defendants will produce documents sufficient to show the gross sales of As Clean As They Wanna Be. 49. Copies of all contracts with wholesalers, retailers, distributors and any other sellers or dealers of As Clean As They Wanna Be. ANSWER: None. 50. Each document that relates to reports sent to or prepared for you regarding the sales of As Clean As They Wanna Be. ANSWER: None. 51. Documents sufficient to show the total number of copies of As Clean As They Wanna Be distributed for promotional purposes. ANSWER: None. 52. Documents sufficient to show the retail selling price and the wholesale price of As Clean As They Wanna Be. ANSWER: None. 53. Each document that relates to payment of mechanical or other royalties regarding the sales of As Clean As They Wanna Be. ANSWER: The Defendants will produce the requested documents. 233a Appendix O 54. Documents sufficient to show your average profit per copy of As Clean As They Wanna Be. ANSWER: None. 55. Documents sufficient to show your average profit per month on the sale of As Clean As They Wanna Be for each month since the release of As Clean As They Wanna Be, including any advance sales. ANSWER: None. 56. Contracts, agreements, memoranda, letters and other documents sufficient to show each planned or actual concert or other personal appearance of The 2 Live Crew in Tennessee. ANSWER: OBJECTION. The Defendant never performed the song “Pretty Woman” in the State of Tennessee. The Plaintiff's request is not relevant under Rule 26 of the Federal Rules of Civil Procedure and will not lead to the discovery of relevant information. 57. Contracts, agreements, memoranda, letters and other documents sufficient to show each shipment of musical recordings and other materials by you into Tennessee, including, but not limited to, items such as jackets, T-shirts, posters, caps, and buttons. ANSWER: OBJECTION. The Defendants do not maintain shipment records on a state by state basis. The Defendants have not utilized the words “Pretty Woman” on any jacket, T-shirt, poster, cap, and/or button. Therefore, the Plaintiff's request is not relevant under Rule 26 of the Federal Rules of Civil Procedure and will not lead to the discovery of relevant information. 234a Appendix O 58. Acopy of the certificate of incorporation for Luke Skyywalker Records and Luke, Inc. ANSWER: The Defendants will produce the requested documents. 59. Acopy of the certificate of incorporation for each corporation in which you hold more than a five percent interest. ANSWER: OBJECTION. The documents sought by the Plaintiff are not relevant under Rule 26 of the Federal Rules of Civil Procedure and will not lead to the discovery of relevant information. 60. A copy of any articles of association or partnership to which you are a party or on which your name appears. ANSWER: OBJECTION. The documents sought by the Plaintiff are not relevant under Rule 26 of the Federal Rules of Civil Procedure and will not lead to the discovery of relevant information. 61. Acopy of each annual report of Luke Skyywalker Records and Luke, Inc., since 1987. ANSWER: None. 62. Each document related to any subsidiaries of Luke Skyywalker Records or Luke, Inc. ANSWER: None. 63. A copy of each annual report for any entity in which you or Luke, Inc. owns more than a five percent interest. 235a Appendix O ANSWER: None. 64. A copy of Luke Skyywalker Records’ most recent audited financial report. ANSWER: None. 65. Acopy of your tax returns since January 1, 1989, including all attachments. ANSWER: OBJECTION. The documents sought by the Plaintiff are not relevant under Rule 26 of the Federal Rules of Civil Procedure and will not lead to the discovery of relevant information. 66. A copy of all tax returns and attachments for any organization in which you or Luke, Inc. owns more than a five percent interest. ANSWER: OBJECTION. The documents sought by the Plaintiff are not relevant under Rule 26 of the Federal Rules of Civil Procedure and will not lead to the discovery of relevant information. 67. Documents sufficient to ‘show your policy, practice, or procedure in retaining or discarding documents. ANSWER: None. 68. Each document related to your retention or destruction of any documents. ANSWER: None. 236a Appendix O 69. Documents sufficient to show the full names, mailing, business, and residence addresses and phone number of you, Luke, Inc., Christopher Wongwon, Mark Ross, and David Hobbs. ANSWER: The Defendants will produce the requested documents. 70. Documents sufficient to show the accounts you or Luke, Inc., or any organization in which you held more than a five percent interest, maintained since July 15, 1989, in any bank savings institution, mutual account, fund, or trust. ANSWER: OBJECTION. The documents sought by the Plaintiff are not relevant under Rule 26 of the Federal Rules of Civil Procedure and will not lead to the discovery of relevant information. 71. A copy of each deposit receipt you received from any bank, savings institution, mutual account, fund, or trust since July 15, 1989. ANSWER: OBJECTION. The documents sought by the Plaintiff are not iclevant under Rule 26 of the Federal Rules of Civil Procedure and will not lead to the. discovery of relevant information. 72. Copies of each statement you received from any bank, savings institution, mutual account, fund, or trust since July 15, 1989. ANSWER: OBJECTION. The documents sought by the Plaintiff are not relevant under Rule 26 of the Federal Rules of Civil Procedure and will not lead to the discovery of relevant information. 237a Appendix O 73. Copies of each statement of net worth and listing of assets created in applying for credit or loans which you have completed since July 15, 1989. ANSWER: OBJECTION. The documents sought by the Plaintiff are not relevant under Rule 26 of the Federal Rules of Civil Procedure and will not lead to the discovery of relevant information. 74. Copies of correspondence and documents related to any copyright search made regarding “Oh, Pretty Woman.” ANSWER: None. 75. Each document that discusses ownership of copyri 1. pyright of “Oh, Pretty Woman” or “Pretty Woman.” ANSWER: The Defendants will produce the requested documents. 76. Documents sufficient to identify each individual who was involved in the performance or production of “Pretty Woman” and his or her respective functions or activities. ANSWER: The Defendants wili produce the requested documents. 77. Each document that discusses the use of sampling or any other mechanical technique for the production of “Pretty Woman.” ANSWER: None. 78. Each document related to each instance in which a copyright claim or concern has been raised with regard to any elements of any of your work. 238a Appendix O ANSWER: OBJECTION. The documents sought by the Plaintiff are not relevant under Rule 26 of the Federal Rules of Civil Procedure and will not lead to the discovery of relevant information. 79. Each document you sent to or received from any person related to “Pretty Woman.” ANSWER: The Defendants will produce the requested documents. 80. Each document which relates to your communications with ASCAP or BMI in Nashville, Tennessee; Los Angeles, California; and New York, New York. ANSWER: OBJECTION. The documents sought by the Plaintiff are not relevant under Rule 26 of the Federal Rules of Civil Procedure and will not lead to the discovery of relevant information. 81. Each document that contained instructions or related to the manner in which the search for documents requested in this request for production of documents was performed. ANSWER: OBJECTION. The documents sought by the Plaintiff are protected by the attorney work product privilege and the attorney-client privilege. 82. Each document consulted in locating or obtaining the documents requested in this request for production of documents. ANSWER: OBJECTION. The documents sought by the Plaintiff are protected by the attorney work product privilege and the attorney-client privilege. 239a Appendix O 83. Each document prepared in response to this request for production of documents. ANSWER: OBJECTION. The documents sought by the Plaintiff are protected by the attorney work product privilege and the attorney-client privilege. 84. Documents sufficient to identify by name, address, and title or job description each person who searched for documents responsive to this request for production of documents. ANSWER: OBJECTION. The documents sought by the Plaintiff are protected by the attorney work product privilege and the attorney-client privilege. 85. Each document consulted to determine where to search for documents requested in this request for production of documents. ANSWER: OBJECTION. The documents sought by the Plaintiff are protected by the attorney work product privilege and the attorney-client privilege. Respectfully submitted, s/ Alan Mark 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 240a Appendix O CERTIFICATE OF SERVICE I hereby certify that the original Answers to Request for Production of Documents was mailed to Elizabeth B. Marney, Attorney for Plaintiff, 1200 Noel Place, 200 Fourth Avenue, North, Nashville, TN 37219, this 14th day of September, 1990. s/ Alan Mark Turk ALAN MARK TURK 24la Appendix O EXHIBIT — RECORD ACTIVITY REPORT (Omitted Here But Submitted Separately As Lodging) 242a Appendix O 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 heard 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 ahumorous sense and in no way should this be construed as anything but a 243a Appendix O 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) 244a Appendix O ACUFF-ROSE MUSIC, INC. MILEXS MUSIC, INC. VIA FAX AND MAIL May 23, 1990 Jeanne Ramdin CMRRA 36 Wellesley St. West Suite 320 Toronto, Ontario MSS 2S4 RE: “OH PRETTY WOMAN” — License number 9007-03518 Dear Joanne: We are refusing the attached license due to the unauthorized version of the lyric used on this song by the artists ‘2 Live Crew’. Permission was not granted to create new lyrics on this composition. If you have any questions, or need addition information, please feel free to contact me directly. Sincerely, s/ Julie Allmand Julie Allmand Copyright Dept. Opryland Music Group, Inc. cc: Peggy Lamb/Copyright Jerry Flowers/Dir. of Pub. Hal Willis/Legal 245Sa Appendix O WEA Music of Canada, Ltd, A Warner Communications Company Warner/Elektra/Atlantic May 28, 1990 Ms. Peggy Lamb, Copyright Dep’t. Opryland Music Group 65 Music Square, West Nashville, Tn. 37203. Dear Peggy: Re: “Oh Pretty Woman” Further to last week’s conversation concerning the use of “Oh Pretty Woman” by the group 2 Live Crew, WEA Music of Canada proposes to pay all royalties due on the song to CMRRA for sales to the end of June, 1990, along with any money in reserve. This payment will take place in the usual manner, on August 15. We will then, subject to the approval of Skyywalker Records, remove the song from the album. As far as liability on inventory is concerned, I suggest that we wait until after the June quarterly payment has been made before assessing an amount, as we expect to see returns by then. A copy of this letter to Skyywalker Records will serve as our request for their authorization to take the song off of the 2 Live Crew album. If you are in agreement with our proposal, please 246a 247a Appendix O Appendix O advise me in writing by June 15, so that we can make preparations WEA for the September quarter. Music of Canada, Ltd. A Warner Communications Company Sincerely, Warner/Elektra/Atlantic s/ Jim Agnew Jim Agnew May 28, 1990 Royalty Manager REGISTERED MAIL cc: Stan Kulin Dave Tollington Mr. Luther Campbell Bruce Mattavish c/o Skyywalker Records Luther Campbell 3050 Biscayne Blvd., Suite 307 Milton Rothman Liberty City, Fla. U.S.A. 33137 Dear Luther: Re: “Oh Pretty Woman” Enclosed are copies of Opryland Publishing’s letter to CMRRA, along with our response, concerning the use of the song “Oh Pretty Woman” on the 2 Live Crew album. Pursuant to Paragraph 21 of our agreement, WEA Music of Canada intends to remove the song from the album “As Clean as they Wanna Be”, effective with all units manufactured as of July 1, 1990. Please indicate your approval! by signing below and returning this letter to me by June 19, 1990. Should you have any questions, please contact me as soon as possible. Sincerely, s/ James E. Agaew James E. Agnew Royalty Manager cc: Stan Kulin Dave Tollington Bruce Mactavish Milton Rothman 2A8a Appendix O ACCEPTED AND AGREED Skyywalker Records DATE: 249a Appendix O 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/jmn 250a Appendix O EXHIBIT — 2 LIVE CREW TRACK CHART FOR PRETTY WOMAN (Omitted Here But Submitted Separately As Lodging) 25la Appendix O . David Hobbs 16401 N.E. Second Avenue Miami, Florida 33162 Phone: (305) 381-1974 . Mark Ross 14330 N.W. 13th Avenue Miami, Florida 33167 Phone: (305) 769-0667 . Christopher Wongwon 13161 N.W. 11th Street Miami, Florida 33168 Phone: (305) 687-7205 . Luther Campbell 7180 N. Oakmont Drive Miami, Florida 33138 Phone: (305) 757-2041 252a Appendix O State of Florida Department of State I certify that the attached is a true and correct copy of the Articles of Amendment, filed on June 29, 1990, to Articles of Incorportion for SKYYWALKER RECORDS, INC., changing its name to LUKE RECORDS, INC.., a Florida corporation, as shown by the records of this office. The document number of this corportion is M34847. Given under my hand and the Great Seal of the State of Florida, at Tallahassee, the Capital, this the 2nd Day of July, 1990. Jim Smith Secretary of State [seal] | Grant Seal of the State of Florida In God We Trust 253a Appendix O [stamped] FILED 1990 JUNE 29 AM 11:08 SECRETARY OF STATE TALLAHASSEE, FLORIDA SKY YWALKER RECORDS, INC. ARTICLES OF AMENDMENT Pursuant to Florida Statutes, Chapter 607.187, the Articles of Incorporation of the above-named corporation are hereby amended as follows: 1. Article I is hereby amended to read as follows: “The name of this corporation shall be: “Luke Records, Inc.” 2. The foregoing Amendment was adopted by the sole Director and sole Shareholder of this corporation by execution of that certain “Written Statement Manifesting Intention that Amendment to Articles of Incorporation of Skyywalker Records, Inc. be Adopted”, pursuant to Florida Statutes Section 607.181(3) on the 20th day of June, 1990. 3. This Amendment is effective upon the Secretary of State’s office approval of this amendment. IN WITNESS WHEREOF, the undersigned President and Secretary of this corporation have executed these Articles of Amendment, this 20th day of, June 1990. 254a Appendix O s/ Luther Campbell Luther Campbell, President and Secretary of Skyywalker Records, Inc. 25Sa Appendix O SKYY WALKER RECORDS, INC. WRITTEN STATEMENT MANIFESTING INTENTION THAT AMENDMENT TO ARTICLES OF INCORPORATION BE ADOPTED ADOPTED ON JUNE 20, 1990 The undersigned, being the sole Director and Shareholder of the above-named Florida corporation, eligible to vote, hereby declares, pursuant to Florida Statutes Section 607.181(3), his intention that the following amendment to the Articles of Incorporation be and is adopted: Article I is hereby amended to read as follows: The name of this corporation shall be: “Luke Records, Inc.” IN WITNESS WHEREOF, the undersigned sole Director and Shareholder of this corporation has executed this Statement Manifesting Intention that Amendment to Articles of Incorporation of Skyywalker Records, Inc. be adopted this 20th day of June, 1990. s/ Luther Campbell Luther Campbell, Sole Director and Sole Shareholder JW/sgs Lukerec. smt 256a Appendix O STATE OF FLORIDA COUNTY OF DADE The foregoing Articles of Amendment of Skyywalker Records, Inc. were acknowledged before me this 20th day of June, 1990 by Luther Campbell, President and Secretary of Skyywalker Records, Inc. a Florida corporation, on behalf of the corporation. [stamped] Notary Public State of Florida My Commission Expires: [stamped] Notary Public State of Florida My Commission Expires Oct. 9, 1992 Bonded Thru Bankers Ins. Ca. 257a Appendix O EXHIBIT E KING & BALLOW LAW OFFICES 1200 NOEL PLACE 200 FOURTH AVENUE, NORTH NASHVILLE, TENNESSEE 37219 TELEPHONE: 615/259-3456 TELECOPY: 615/254-7907 September 25, 1990 HAND DELIVERED Alan Turk, Esq. 3310 West End Avenue Nashville, Tennessee 37203 Re: Acuff-Rose v. Luther Campbell, et al. Dear Alan: We received Defendants’ Response to Plaintiff’s First Request for Production of Documents in the referenced lawsuit on Friday, September 14, 1990. Quite frankly, we were disappointed. On review, we determined that Defendants have produced a total of 14 pages, which represent documents for only nine of the 85 requests for production. In addition to the scant responses to Acuff-Rose’s requests, Defendants have interposed objections that either have been waived or are inapplicable. As an initial matter, all of Defendants’ responses to Acuff- 258a Appendix O Rose’s requests, which were served with the Complaint, were untimely. Because Defendants have failed to timely respond to Acuff-Rose’s requests, they have waived the right to object. Please produce all documents responsive to any request where an objection has been interposed. Specificaliy, please produce documents responsive to requests 1, 37, 38, 81, 82, 83, 84, and 85. In addition, Defendants have not produced documents containing unprivileged information. Both the rules and the clear instructions in part II, B, 1-8 of the request require production of this information. In addition to waiver of any attorney-client privilege because of untimeliness, Defendants’ reliance on advice of legal counsel in Luther Campbell’s affidavit attached to the Motion to Dismiss exposes, as a matter of law, all information based on the parody defense arising out of the attorney-client relationship to discovery. Plaintiff is entitled to the information responsive to requests 1, 37, and 38. These untimely objections also make blanket assertions of the work product doctrine, which has either been waived or is inapplicable or both. For example, Luther Campbell's waiver of the attorney-client privilege also waives any claim of work product protection. In addition, Defendants are not entitled to rely on the attorney work product doctrine to protect information arising out of the review of “Pretty Woman” by someone acting as a musicologist. See requests 37 & 38. Accordingly, Acuff-Rose is entitled to production of any and all documents relating to such review. Further, Defendants assert that materials related to As Clean As They Wanna Be are irrelevant. Documents pertaining to the album that contained the infringing work are clearly relevant to this action. 259a Appendix O Defendants deny production of some 34 of Acuff-Rose’s requests for documents on the ground that no responsive documents exist. The fact that Defendants have produced documents relating to “Oh, Pretty Woman” is inconsistent with the claim that there are no documents responsible to requests 2, 12, 14, 15, & 21. Another inconsistency is the response to request 6, which says there was no source material for “Pretty Woman,” even though Defendants claim that the song is a “parody.” By definition, parodies have sources. In addition to these obvious inconsistencies, Defendants have asserted that no responsive documents exist relating to promotional material prepared for As Clean as They Wanna Be (13). It is inconceivable that an album was marketed with no documents relating to the music and lyrics (17, 18, & 33), relating to Defendants’ ownership of “Pretty Woman” (20), relating to copyright registration (21), and relating to public performances of the song (31). Another insufficiency is evident where Defendants offer to produce documents that were in fact not provided. If there are additional documents to be produced, please produce them immediately. If, on the other hand, you assert that all responsive documents have been produced, we note that the responses to requests 5, 26, 29, & 30 state that Defendants will produce the documents, but documents responsive to these requests were not provided. These documents should be produced. Finally, Florida statute § 607.357 requires corporations to file annual reports. Pursuant to Request 61, Acuff-Rose is entitled to production of these documents. The foregoing examples are merely illustrative rather than 260a Appendix O exhaustive and show that Defendants’ responses to Acuff-Rose’s request for production are inadequate and that Defendants remain obligated to respond fully and completely. Toward this end, we will be willing to work with you to set a time to complete Defendants responses. Please call us to discuss this matter. It has been 49 days since discovery was due. Prompt completion of discovery 1s necessary to expedite the progress of this lawsuit. Sincerely, s/ Betty Elizabeth B. Marney EBM/tt 26la Appendix O EXHIBIT F ALAN MARK TURK ATTORNEY, P.C. 3310 WEST END AVE. FOURTH FLOOR NASHVILLE, TENNESSEE 37203 FAXPHONE October 19, 1990 Elizabeth B. Marney KING & BALLOW 1200 Noel Place 200 Fourth Avenue, North Nashville, TN 37219 Re: Acuff-Rose v. The 2 Live Crew, et al. Dear Elizabeth: Please be advised that I am mailing to you today the proposed Scheduling Order signed by myself on behalf of Alan Jacobi and Sanford Ross. I anticipated that the defendants would also require two days for trial. In addition, please be advised that the defendants agree that this matter should not be submitted to a Magistrate. Further, please be advised that the defendants, at this time, do not intend to supplement their document production. If you feel it necessary, then I suggest that you file Motion to Compel. If you have any questions concerning the proposed Pre-Trial Order or the defendants’ position concerning your request for a supplemental production please do not hesitate to contact me. AMT/wb Enclosure 262a Appendix O Very truly yours, s/Alan ALAN MARK TURK 263a Appendix O EXHIBIT G IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION NO: 390052 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 YWALKER RECORDS, Defendants. AFFIDAVIT STATE OF FLORIDA) COUNTY OF DADE ) PARTI COMES NOW the Affiant and makes oath as follows: 264a Appendix O 1. My name is Luther Campbell, and I am a citizen and resident of the State of Florida. I am over the age of eighteen (18) years of age. 2. In May, 1989, I wrote a parody of the song “Oh Pretty Woman” which I entitled “Pretty Woman”. In writing the parody I felt it was necessary for the listener to identify the parody version with the original version written and performed by the late Roy Orbison. In writing the lyrics to the parody and selecting the accompanying score it was a critical factor that I determine what amount of the original work would be included in the parody. I chose to include the distinctive introduction of the original version of “Oh, Pretty Woman” and the first line of lyrics because I felt this was sufficient 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 265a Appendix O and other satirical artists are doing”. (Exhibit A) Ms. Fine indicated that Acuff-Rose Music, Inc. would be acknowledge 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 be “heard Ps 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 ——— Mr. Teifer, as agent for the Plaintiff, indicated that must inform you that we cannot permit the u “Oh Pretty Woman”. (Exhibit B) sa — 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 ~— with combined sales of 248,000 units of albums, Cassettes and compact discs. The Plaintiff, as the copyright ow of “Oh Pretty Woman” is entitled to be cmemet ane 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 266a Appendix O money owed to the Plaintiff. This amount is $13,867.56. Attached 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 267a Appendix O EXHIBIT H § 607.354 CORPORATIONS & BUSINESS TRUSTS Title 34 Note 10 nonqualified corporation, its successors or assigns. Tornado Southern, Inc. v. Harry’s Auto Parts, Inc., App., 222 So.2d 29 (1969). Bankruptcy trustee acquires title to estate by operation of law, and is not a “successor or assign” within former § 613.04 prohibiting suit by successor or assign of nonqualified foreign corporation. Id. II. Pleading The defense raising question of foreign corporation’s right to maintain a suit in the state should be specifically made. Ronnoc Grove Co. v. Coe-Mortimer Co., 83 Fla. 370, 91 So. 265 (1922); Farrell v. Forest Inv. Co., 73 Fla. 191, 74 So. 216, 1 A.L.R. 25 (1917). Under federal rule relating to pleading of affirmance defenses, failure to comply with § 613.04 (see, now, this section) must be affirmatively pleaded. Norman M. Morris Corp. v. Weinstein, C.A., 466 F.2d 137 (1972). Mere allegation that citizen of Florida assigned mortgage to foreign corporation which failed to file copy of charter in state was insufficient to show corporation's disqualification to maintain foreclosure suit. McMullen v. Inland Realty Corporation, 113 Fla. 476, 152 So. 740 (1934). 268a Appendix O Compliance with the provisions of predecessor to this section is not acondition precedent to the right of a corporation to maintain an action in the courts of this state, but the defense of failure to comply is one that should be specially pleaded. O’Daniel v. Kulosa, 97 Fla. 269, 120 So. 357 (1929). Plea that plaintiff had not complied with Florida foreign corporation law was demurrable, where it did not aver that plaintiff was not doing business in state when the statute was enacted. Holder Turpentine Co. v. M.C. Kiser Co., 68 Fla. 312, 67 So. 85 (1915). 12. Mandamus Verification of petition and proof of compliance with § 617.04 (see, now, this section) as to right to do business within the state were sufficient to show right of plaintiffs to bring petition for mandamus. City of Miami Beach v. Jonathon Corp., App., 238 So.2d 516 (19790). 13. Review Error, if any, in entering judgment in bar against foreign corporation which sued on note executed in state, rather than judgment abating action until corporation should comply with this section, was invited, where corporation’s counsel prepared judgment order, hence corporation could not take advantage thereof. Reliance Fertilizer Co. v. Davis, 124 Fla. 859, 169 So. 579 (1936). 607.357 Annual report of domestic and foreign corporations (1) Each domestic corporation and each foreign corporation 269a Appendix O authorized to transact business in this state shall file with the Department of State, on or after January | and on or before July | of each year, a sworn report on such forms as the Department of State shall prescribe setting forth: | (a) The name of the corporation and the state or country of incorporation. (b) The date of incorporation or, if a foreign corporation, the date on which it was admitted to do business in this state. (c) The street address of the principal office of the corporation. (d) The corporation's federal employer identification number. (e) The name and street address of each officer. (f) The name and mailing address of each director. (g) The name and street address of the registered agent upon whom service of process may be made. (h) Such additional information as may be necessary or appropriate to enable the Department of State to carry out the provisions of this chapter. (2) Proof to the satisfaction of the Department of State that on or before July 1 such report was deposited in the United States mail in a sealed envelope, properly addressed with postage prepaid, shall be deemed a compliance with this requirement. 270a Appendix O (3) Ifthe Department of State finds that such report conforms to the requirements of this chapter, it shall file the same. If the Department of State finds that such report does not so conform, it shall promptly return the same to the corporation for any necessary corrections, in which event the penalties hereinafter prescribed for failure to file such report within the time hereinabove provided shall not apply if such report is corrected to conform with the requirement of this chapter and returned to the Department of State within 30 days from the date on which it was mailed to the corporation by the Department of State. (4) Each report shall be executed by the corporation by its president, vice president, secretary, assistant secretary, or treasurer or, if the corporation is in the hands of a receiver or trustee, it shall be executed on behalf of the corporation by such receiver or trustee, and the signing thereof shall have the same legal effect as if made under oath, without the necessity of appending such oath thereto. (5) The information required to be shown on each annual report shall be determined as of December 31 immediately preceding the annual report due date. (6) Any corporation failing to file the annual report required by this section shall not be permitted to maintain or defend any action in any court of this state until such report is filed and all taxes due under this chapter are paid, and any corporation failing to file the annual report shall be subject to dissolution or cancellation of its certificate of authority to do business as provided in this chapter. 27la Appendix O APPENDIX O — DEFENDANTS’ KESPONSE TO THE PLAINTIFF’S MOTION TO COMPEL FILED JANUARY 16, 1991 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 SKYYWALKER RECORDS, Defendants. DEFENDANTS’ RESPONSE TO THE PLAINTIFF’ S MOTION TO COMPEL Comes now the Defendants, by and through their attorneys, and in response to the Plaintiff’s Motion to Compe! would state that the Plaintiff's Motion to Compel has been rendered moot by the Court’s Order of January 14, 1991. This Court has granted the 272a Appendix O Defendants’ Motion for Summary Judgment in accordance with Rule 56 of the Federal Rules of Civil Procedure. The Court has held that the Defendants’ song “Pretty Woman” is a parody of the Plaintiff’s song “Oh, Pretty Woman” and that said parody constitutes fair use under Section 107 of the Copyright Act. The Court has further held that Section 106 of the copyright Act, as a matter of law, precludes the tort claims alleged by the Plaintiff. The Court in its Memorandum Opinion did not address whether or not the funds deposited by the Defendants satisfy their statutory obligation to the Plaintiff. The Defendants have provided to the Plaintiff documents evidencing the number of copies of As Clean As They Wanna Be that were sold. The Defendants have deposited with the Court sufficient funds to satisfy their statutory obligation to the Plaintiff. The Court’s Order of January 14, 1991, renders the Plaintiff's Motion to Compel moot. Respectfully submitted, s/ Alan Mark 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 273a Appendix O 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 3721 9, this 17th day of January, 1991. ) s/Alan Mark Turk ALAN MARK TURK 274a APPENDIX P — MEMORANDUM OPINION IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION 3:90-0524 ACUFF-ROSE MUSIC, INC. Vv. LUTHER R. CAMPBELL a/k/a Lvke Skyywalker, CHRISTOPHER WONGWON a/k/a Fresh Kid Ice, MARK ROSS a/k/a Brother Marquis, DAVIS HOBBS a/k/a Mr. Mixx, p/k/a THE 2 LIVE CREW and LUKE SKY YWALKER RECORDS MEMORANDUM This case involves a claim by Acuff-Rose Music, Inc. (“Acuff-Rose”) for copyright infringement of its song, “Oh, Pretty Woman.” Acuff-Rose has named as defendants the members of the rap group 2 Live Crew and Luke Skyywalker Records. The plaintiff contends that the defendants unfairly are trying to cash in on the popularity of “Oh, Pretty Woman.” For the reasons stated below, the Court finds that no genuine issue of material fact exists regarding the allegation of copyright infringement. This claim is dismissed pursuant to Fed. R. Civ. P. 56. The plaintiff's pendent tort claims are preempted by 17 U.S.C. § 301. 275a Appendix P I. This copyright case involves Roy Orbison’s musical hit “Oh, Pretty Woman” as recorded by 2 Live Crew. Roy Orbison and William Dees co-authored “Oh, Pretty Woman” in 1964 and assigned their rights in the song to Acuff-Rose Music the same year. “Oh, Pretty Woman” was copyrighted by Acuff-Rose in 1964. Since then the song has continued to generate profits for Acuff- Rose. On July 5, 1989, 2 Live Crew’s manager, Linda Fine, wrote Gary Teifer of Opryland U.S.A., Inc. and Acuff-Rose. Fine informed Teifer that 2 Live Crew was going to parody “Oh, Pretty Woman,” that Orbison and Dees would receive full credit as owners and authors, and that 2 Live Crew would pay Acuff-Rose the statutorily required rate for use of the song. Teifer responded on July 17, denying the license request and informing Fine that “we cannot permit the use of a parody of ‘Oh, Pretty Woman.’ ” On July 15, 1989, 2 Live Crew released its version of “Oh, Pretty Woman” on record albums, tapes and compact discs, entitled “As Clean As They Wanna Be.” The release, called “Pretty Woman,” is on side B, sandwiched between “Me So Horny” and “My Seven Bizzos.” Both the compact disc cover and compact disc itself acknowledge Orbison and Dees as the authors of “Oh, Pretty Woman” and Acuff-Rose as the publisher. Almost one year later, on June 18, 1990, Acuff-Rose sued 2 Live Crew and their record company, Luke Skyywalker Records, for copyright infringement, interference with business relations, and interference with prospective business advantage for the performance and distribution of a copy of “Oh, Pretty Woman.” Acuff-Rose contends that the lyrics of “Oh, Pretty Woman” as sung by 2 Live Crew “are not consistent with good taste or would 276a Appendix P disparage the future value of the copyright.” Moreover, Acuff- Rose charges that 2 Live Crew’s music is substantially similar in melody to “Oh, Pretty Woman” and the lyrics of the first verse are substantially similar to that of the original version. In response, defendants have moved for summary judgment. They argue that “Pretty Woman” is a parody that constitutes fair use under 17 U.S.C. § 107 of the Copyright Act, 17 U.S.C. §§ 101-914 (1982). They also argue that the two tort claims are preempted by 17 U.S.C. § 301. Pursuant to Fed. R. Civ. P. 67, 2 Live Crew has deposited with the Court the $13,867 it maintains is due to Acuff-Rose for use of its song as required by the Copyright Act. This decision does not address whether that sum reflects adequate compliance with the Act. The resolution of this motion presents two questions for the Court to address: first, whether “Pretty Woman” constitutes fair use of copyrighted material pursuant to 17 U.S.C. § 107; and second, whether the plaintiff’s state law claims are preempted by federal copyright law. II. A. Standard of review Summary judgment is appropriate only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Street v. J.C. Bradford & Co., 886 F.2d 1472, 1476- 80 (6th Cir. 1989). The party seeking summary judgment bears the initial burden of showing the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. In responding to a motion for summary judgment, the nonmoving party cannot rest on its pleadings, but must present some “specific facts showing that there is a genuine issue for trial.” /d. at 324. 277a Appendix P The Supreme Court concluded in Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986), that a dispute about a material fact is “genuine” within the meaning of Fed. R. Civ. P. 56 only if “the evidence is such that a responsible jury could return a verdict for the nonmoving party.” 477 U.S. at 248. “The mere existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient.” Jd. at 252. Of course, the court is to construe the evidence and all inferences to be drawn from it in the light most favorable to the nonmoving party. Jd. at 255. B. Fair Use To foster the widespread dissemination of ide.s, the copyright system is “designed to assure contributors to the store of knowledge a fair return for their labors.” Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 546 ( 1985). See Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984) (purpose of copyright is to create incentives for creative effort). Notwithstanding the monopoly granted to the owner, fair use has been defined as the “privilege in others than the owner of a copyright to use the copyrighted material in a reasonable manner without his consent.” Harper & Row, 471 U.S. at 549 (quoting H. Ball, Law of Copyright and Literary Property, 260 (1944)). Section 107 of the Copyright Act instructs courts to balance the following four factors: In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include — (1) the purpose and character of the use, including whether such use is a commercial nature or is for nonprofit educational purposes; 278a Appendix P (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. Ata minimum, courts have indicated that evaluation of these four factors is required. But they are not exclusive. Harper & Row, 471 U.S. at 560; Pacific & Southern v. Duncan, 744 F.2d 1490, 1495 n.7 (11th Cir. 1984), cert. denied, 471 U.S. 1004 (1985). Before the court may move to the merits of the statutory fair use analysis, it must consider whether this case is suitable for summary judgment. Plaintiffs allege that a number of material issues of fact remain. “Fair use is a mixed question of law and faci.” Harper & Row, 471 U.S. at 560 (quoting Pacific & Southern Co., 744 F.2d at 1495 n. 8). “Where the district court has found facts sufficient to evaluate each of the statutory factors, an appellate court ‘need not remand for further factfinding ... [but] may conclude as a matter of law that [the challenged use] do[es] not qualify as a fair use of the copyright work.’ ” /d. Based on the evidence presented by the parties in this case, including copies of the songs, correspondence and affidavits, whether defendant's parody constitutes fair use under 17 U.S.C. § 107 is a question of law for the Court to determine. See Fisher v. Dees, 794 F.2d 432, 436 (9th Cir. 1986) (although discovery not commenced, since “parties dispute only the ultimate conclusions to be drawn from the admitted facts. .. we can make them without usurping the function of the jury”). 279a Appendix P Since no genuine material issues of fact remain, the Court will proceed to address the four factors cited by § 107.' 1. Purpose and Character of the Use. The first factor the Court must consider is the purpose and character of the use. including whether such use is of a commercial nature or is for nonprofit educational purposes. As examples of fair use, the preamble of § 107 lists “criticism, comment, news reporting, teaching ... scholarship, {and] .. . research.” 17 U.S.C. § 107. Congress has listed parody as one of those activities that might qualify for the fair use exception. See H.R. Rep No. 1476, 94th Cong., 2d Sess., 65 (1976), reprinted in 1976 U.S. Code Cong. Admin. News 5680. Obviously, 2 Live Crew's song is included on a commercially distributed record album sold for the making a profit. — Although 2 Live Crew’s primary goal in releasing “As Nasty As They Wanna Be” is to sell its music, that finding “does not necessarily negate a fair use determination. . . .” 3 M. Nimmer, Nimmer on Copyright, § 13.05[A] at 13-70 (1990). In Harper & Row, the Court stated that a commercial purpose merely “tends to weigh against a finding of fair use.” Harper & Row, 471 U.S. at 562. “The crux uf 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. Importantly for the purposes of this case, it is plain that 2 Live bd 1. No published Sixth Circuit opinion addresses this type of copyright infringement question. Compare Pro Arts, Inc. v. Hustler Magazine, Inc., 787 F.2d $92 (6th Cir. 1986) (per curiam) (unpublished text in Westlaw). Accordingly, this Court relies on opinions from other circuits, notably the Second and Ninth Circuits. 280a Appendix P Crew also desired to parody the original version of “Oh, Pretty Woman.”? In copyright !aw, courts have long recognized that satirical expression is “deserving of substantial freedom — both as entertainment and as a form of social and literary criticism.” Berlin v. E.C. Publication, Inc., 329 F.2d 541, 545 (2nd Cir.), cert. denied, 379 U-S. 822 (1964). Including parody within the fair use doctrine has been recognized as “a means of fostering the creativity protected by the copyright law.” Warner Bros., Inc. v. American Broadcasting Companies, 720 F.2d 231, 242 (2d Cir. 1983). Many parodies “distributed commercially may be ‘more in the nature of an editorial or social commentary than . . . an attempt to capitalize financially on the plaintiff's original work.’ ” Fisher v. Dees, 794 F.2d 432, 437 (9th Cir. 1986) (quoting Pillsbury Co. v. Milky Way Productions, Inc., 215 U.S.P.Q. 124, 131 (N.D. Ga. 1981)); Cf. Original Appalachian Artworks v. Topps Chewing Gum, 642 F. Supp. 1031, 1034 (N.D. Ga. 1986) (holding that primary purpose behind defendant's parody “is not an effort to make a social comment but is an attempt to make money”). As discussed in Section II.B.4, infra, the defendant may rebut the presumption of commercial use as described in Harper & Row by convincing the court that the parody does not unfairly diminish the economic value of the original. Fisher, 794 F.2d at 437. Acuff-Rose argues that the song is not a parody. It contends 2 Dallas Cowboys Cheerleaders v. Pussycat Cinema, 467 F. Supp. 366, 376 (S.D.N.Y.), aff'd, 604 F.2d 200 (2d Cir. 1979), defines parody as “a work in which the language or style of another work is closely imitated or mimicked for comic effect or riducule.” See Dorson, Satiric Appropriation and the Law of Libel, Trademark and Copyright: Remedies Without Wrongs, 65 B.U.L. Rev. 923, 924 (1985) (Parody “is a potent form of social commentary which attempts to expose the foibles and follies of society in direct, biting, critical, and often harsh language — tempered by humor.”). 28la Appendix P that the 2 Live Crew’s version does not comment on the copyrighted work because the former is “primarily about the physical attributes of women” and the latter is “primarily about loneliness.” But based on a comparison of the two songs and the affidavits provided to the Court, it is apparent that 2 Live Crew has created a comic parody of “Oh, Pretty Woman.” The theme, content and style of the new version are different than the original. In his affidavit, Luther Campbell, also known as Luke Skyywalker, states that his version of “Oh, Pretty Woman” was written as a parody designed “through comic lyrics, to satirize the original work. .. .” He acknowledges that he purposefully copied selected music and lyrics from “Oh, Pretty Woman” as a device to help listeners identify the parody with the original version. Acuff-Rose may not like it, and 2 Live Crew may not have created the best parody of the original, but nonetheless the facts convincingly demonstrate that it is a parody. 2 Live Crew’s lyrics provide the strongest evidence of its attempt to parody “Oh, Pretty Woman.” Although the parody starts out with the same lyrics as the original, it quickly degenerates into a play on words, substituting predictable lyrics with shocking ones.‘ The first lyrical hint that something is amis comes when a 3 Gerry Teifer’s comment in his July 17, 1990 letter to 2 Live Crew that the new version of “Oh, Pretty Woman” is a parody does not necessarily equate with the specific legal definition of parody. Teifer says in his affidavit that he never heard the 2 Live Crew version prior to denying their licensing request. 4 It is unclear exactly what Acuff-Rose means when it complains in its response to the Motion for Summary Judgment that the parody “dirt{ies]” the copynght. 2 Live Crew's version is neither obscene nor pornographic. Even if the work included pornographic references, that does not necessarily preclude a finding ng Pillsbury Co. v. Milky Way Productions, Inc.215U.S.P.Q. 124, 131(N.D. . 1981). 282a Appendix P loud, barking laugh immediately follows the first two words of the parody, “pretty woman.” (Laughter follows later in the song too.) The purpose of the laughter is soon explained as the ensuing choruses respectively depict a big, hairy woman, a bald-headed woman, and a “two-timin’ " woman. Roy Orbison’s pretty woman becomes akin to “Cousin It, ” the ugly, bit character featured on the TV series “The Addams Family.” The physical attributes of the subject woman deviate from a pleasing image of feminity to bald- headed, hairy and generally repugnant. To complete the thematic twist, at the end of the parody the “two-timin’ 2 woman turns out to be pregnant. The phrase, “the baby ain’t mine” is completely inconsistent with the tone and story of the romantic original. In sum, 2 Live Crew is an anti-establishment rap group and this song derisively demonstrates how bland and banal the Orbison song seems to them. See MCA, Inc. v. Wilson, 677 F.2d 180, 185 (2d Cir. 1981) (noting that “if the copyrighted [work] is not at least in part an object of the parody, there is no need to conjure it up ; Defendant’s Affidavits of Oscar Brand and William Krasilovsky. The parody also employs a number of musical devices that exaggerate the original and help to create a comic effect. 2 Live Crew uses the same drum beat and bass riff to start its song. But unlike the original, only five seconds into the song and immediately following the bass riff, 2 Live Crew inserts a heavily distorted “scraper,” indicating a significant disparity in style. The same scraper is used four seconds later to reiterate that message and subsequently at the end of the song as well. Also at the beginning of the parody, the first soloist sings in a different key than the chorus. In addition, four times during the parody, 2 Live Crew repeats Orbison’s bass riff over and over again, double the number of times on the original, until the riff begins to sound like annoying scratch on a record. 283a Appendix P Although the Court has determined that 2 Live Crew’s version parodies the original, a finding of a parody does not necessarily equate with a finding of fair use. Fisher, 794 F.2d at 435. “Parody was not classified as a presumptively fair use . . . . Each assertion of the ‘parody defense’ must be considered individually, in light of the statutory facts, reason, experience, and of course, the general principles developed in past cases.” /d. As a result, the Court will examine the remaining three statutory elements of § 107. 2. Nature of the Copyrighted Work. The second factor is the nature of the copyrighted work. In addressing this element, “the court may consider, among other things, whether the work was creative, imaginative, and original, . . . and whether it represented a substantial investment of time and labor made in anticipation of financial return.” MCA, 677 F.2d at 182 (citation omitted). See also Harper & Row, 471 U.S. at 563; 3 M. Nimmer, Nimmer on Copyright, § 13.0S5[A] at 13-78. Since “Oh, Pretty Woman” is a published work, with creative roots, this factor weighs in favor of the plaintiff. 3. Amount of Quotation. The third factor to address is the amount and substantiality of the portion used in relation to the copyrighted work as a whole. This element contains quantitative and qualitative elements and as a result the amount of protected material that a copier may take under the rubric of fair use will vary from case to case. For instance, fair use may not allow a person to copy the most qualitatively “valuable” portion of the work, even if such portion constitutes a relatively small amount of the entire protected material. See, e.g., Harper & Row, 471 U.S. at 565-66. In Harper & Row the Supreme Court noted that a taking that is “insubstantial with respect to the infringing work” does not necessarily mean that 284a Appendix P fair use applies. /d., 471 U.S. at 565. By contrast, “the copying of an entire work does not preclude fair use per se.” Hustler Magazine, Inc., v. Moral Majority Inc., 796 F.2d 1148, 1155 (9th Cir. 1986). Acuff-Rose argues that the portions taken from “Oh, Pretty Woman” are both qualitatively and quantitatively significant. According to the plaintiff's musicologist, Earl V. Spielman, the two works are substantially similar. The copying includes the name of the song and key lyrics. The 2 Live Crew version also includes the same guitar refrain, opening drum beat and melody and chorus. Affidavit of Earl V. Spielman. Since the original song is so popular, Acuff-Rose contends that 2 Live Crew does not need to copy much of the original in order to conjure up its memory. But the conclusions drawn by the plaintiffs does not address whether 2 Live Crew used more of the copyrighted work than was necessary to recall or conjure up “Oh, Pretty Woman.” See, e.g., Fisher, 794 F.2d at 438 n.4 (holding that affidavits conflicting on question of substantiality are irrelevant given that issue of extent of taking is a question of law). No one disputes that 2 Live Crew copied “Oh, Pretty Woman.” But the question about substantial similarity cannot be divorced from the purpose for which the defendant's work will be used. It is a settled aspect of copyright law that parodists have the right to conjure up the object of the parody. In Berlin, 329 F.2d 541, the court stated that where “the parody has neither the intent nor the effect of fulfilling the demand for the original, and where the parodist does not appropriate a greater amount of the original work than is necessary to ‘recall or conjure up’ the object of his satire, a finding of infringement would be improper.” /d. at 545. See Elsmere Music, Inc. v. National Broadcasting Co., 623 F.2d 252, 285a Appendix P 253 (2d Cir. 1980) (“parody frequently needs to be more than a fleeting evocation of an original in order to make its humorous point”). Indeed, the effectiveness of a parody inherently depends on its ability to copy the original work. . Several courts (hat have balanced the conflict between the rights of the copyright owner against the goals of the parodist have concluded that parodies of songs require more leeway than other types of parodies. The Ninth Circuit reasoned in Fisher that resolution of the substantiality question depends on the medium of the respective works. In Fisher, the plaintiffs sued for copyright infringement of a song entitled “When Sunny Gets Blue.” As in this case, the plaintiffs previously had denied defendant Dees’ request to record a parody of the original. Nonetheless, Dees released his parody song “When Sonny Sniffs Glue,” copying the musical theme of the original while changing the lyrics. /d. at 434 The Fisher court observed that: | Like a speech, a song is difficult to parody effectively without exact or near-exact copying. If the would-be parodist varies the music or meter of the original substantially, it simply will not be recognizable to the general audience. This “special need for accuracy,” provides some license for “closer” parody. . . . To be sure, that license is not limitless: the parodist’s desire to make the best parody must be “balanced against the rights of the copyright owner in this original expression.” Fisher, 794 F.2d at 439 (citations omitted). Likewise, in Berlin, the Second Circuit affirmed the application of the fair use defense ina case where the defendants, publishers of “Mad Magazine,” had 286a Appendix P published a volume which parodied twenty-five of the plaintiff's song lyrics in same meter. “The disparaties in theme, content and style between the original lyrics and the alleged infringements could hardly be greater.” Berlin, 329 F.2d at 545. Cf. Walt Disney Productions v. Air Pirates, 581 F.2d 751, 758 (9th Cir. 1978) (holding that fair use defense cannot apply where the copying is virtually complete or almost verbatim and that parodist may only use what is necessary to conjure up the original), cert. denied, 439 U.S. 1132 (1979); MCA, 677 F.2d at 185 (holding that where defendant’s song “Cunnilingus Champion of Co. C” did not parody plaintiff’s song “Boogie Woogie Bugle Boy of Company B,” the amount copied by defendants from the original song was so substantial as to be unfairly excessive). In this case, 2 Live Crew has not mimicked so much of “Oh, Pretty Woman” that it runs afoul of the substantiality factor. Notable aspects of the original song are plainly present in 2 Live Crew’s version but, unlike Air Pirates, this is not a case of virtually complete or verbatim copying. Rather this case falls in the realm of parodies envisioned by Fisher and Berlin. In view of the fact that the medium is a song, its purpose is parody, and the relative brevity of the copying, it appropriates no more from the original than is necessary to accomplish reasonably its parodic purpose. Fisher, 794 F.2d at 439. 4. Effect on the Market. Finally, as discussed in the first statutory factor under § 107, the Court must examine the effect of the use upon the potential market for or value of the copyrighted work. The Supreme Court has referred to the fourth factor as “the single most important element of fair use.” Harper & Row, 471 U.S. at 566. Accord Triangle Publications, Inc. v. Knight-Ridder Newspapers, Inc., 626 F.2d 1171, 1175 (Sth Cir. 1980). 287a Appendix P The Supreme Court reasoned that this element should be weighed most heavily since “a use that has no demonstrable effect upon the potential market for, or the value of, the copyrighted work need not be prohibited in order to protect the author’s incentive to create.” Sony Corp., 464 U.S. at 450. As a result, fair use, “when properly applied, is limited to copying by others which does not materially impair the marketability of the work which is copied.” Harper & Row, 471 U.S. at 566-67 (quoting 1 Nimmer, Nimmer on Copyright, § 1.10[D] at 1-87). The Court emphasized that to deny a finding of fair use, one need show only that if the defendant’s use “ ‘should become widespread, it would adversely affect the potential market for the copyrighted work.’ ” Harper & Row, 471 U.S. at 568 (quoting Sony Corp., 464 U.S. at 451). Neither Harper & Row nor Sony involved a parody. But in Fisher, which involved a copyright infringement claim and a parody defense, and the Ninth Circuit held that the parody “When Sonny Sniffs Glue” had no cognizable economic impact on the Original song, “When Sunny Gets Blue it concluded that commercial substitution was unlikely, remarking that: “When Sunny Get Blue” is a “lyrical song concerning or relating to a woman’s feelings about lost love and her chance for .... happiness again.” By contrast, the parody is a 29-second recording concerning a woman who sniffs glue, which “ends with noise and laughter mixed into the song.” We do not believe that consumers desirous of hearing a romantic and nostalgic ballad such the composers’ song would be satisfied to purchase the parody instead. 288a Appendix P Nor are those fond of parody likely to consider “When Sunny Gets Blue” a source of satisfaction. The two works do not fulfill the same demand. Fisher, 794 F.2d at 438. See also, Consumers Union of United States, Inc. v. General Signal Corp., 724 F.2d 1044, 1051 (2d Cir. 1983) (“Where the copy does not compete in any way with the original . . .concern is absent.”), cert. denied, 469 U.S. 823 ( 1984); Elsmere Music, 482 F. Supp. 741, 746-47 (S.D.N.Y.), aff'd, 623 F.2d 252 (2d Cir. 1980) (although defendants appropriated the heart of plaintiff’s song, since the copying was a parody it could not fulfill demand for the original version). Cf. New Line Cinema Corp. v. Bertlesman Music Group, 693 F. Supp. 1517, 1528 (S.D.N.Y. 1988) (parody defense rejected where defendant’s rap video would be likely to harm the value of carefully planned derivative use of plaintiff’s movie in the rap video market). With respect to the parody “Pretty Woman,” this fourth factor favors the defendants. As in Fisher, it is extremely unlikely that 2 Live Crew’s song could adversely affect the market for the original. The intended audience for the two songs is entirely different. The odds of a record collector seeking the original composition who would also purchase the 2 Live Crew version are remote. Defendant’s Affidavit of William Krasilovsky. “The group's popularity is intense among the disaffected, definitely not the audience for the Orbison song. I cannot see how it can affect the sales or popularity of the Orbison song, except to stimulate interest in the original.” Defendant’s Affidavit of Oscar Brand. Second, while Acuff-Rose is not required to prove damages, Marcus v. Rowley, 695 F.2d 1171, 1177 (9th Cir. 1983), it has not produced convincing evidence that any harm to any existing or potential market has occured. Cf. Harper & Row, 471 U.S. at 567 (where 289a Appendix P trial court found an actual effect on the market). On a motion for summary judgment, the nonmoving party cannot rest on its pleadings, but must present some “specific facts showing that there is a genuine issue for trial.” Celotex Corp., 477 U.S. at 324. Acuff-Rose must adduce more than a scintilla of evidence to overcome the motion. Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989). Plaintiffs attempt to focus on their possible future losses and mount two different arguments. First, they contend that 2 Live Crew’s parody prevents them from marketing future derivative works, such as a rap version or even their own “burlesque” of the Orbison original. Second, they argue that “Oh, Pretty Woman” “has been tarnished by being associated with these lyrics and with 2 Live Crew” and that will result in the loss of future licensing arrangements. Since 2 Live Crew's version of “Oh, Pretty Woman” is a parody, that release has not prevented Acuff-Rose from recording whatever version of the original it desires. Likewise, plaintiff's argument that it would be prevented from releasing a parody of their work is meritless. In a world where copyright monopoly stretched to that great extent, parodies would be unlikely ever to be approved by the original author. See 3 Nimmer, Nimmer on Copyright, § 13.05[C] at 13-90.12; Fisher, 794 F.2d at 437 (“Parodists will seldom get permission from those whose works are parodied. .. . The parody defense to copyright infringement exists precisely to make possible a use that generally cannot be bought.”’) . Examining the latter argument, several courts have discounted attempts by copyright holders to claim infringement based on the impact of alleged criticism. “In assessing the 290a Appendix P 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’.... Biting . criticism suppresses demand; copyright infringement usurps It. F isher, 794 F.2d at 437-38 (citations omitted). Also see Consumers Union, 724 F.2d at 1050-51; Pillsbury Co. v. Milky Way Productions, Inc., 215 U.S.P.Q. 124, 131 (N.D. Ga. 1981). III. Having applied § 107’s four factor, the Court finds that they weigh in favor of the defendants. 2 Live Crew's “Pretty Woman is a parody. Its purpose is to poke fun at the original version of ‘Oh, Pretty Woman.” In so doing, the parody copies from the original. Notwithstanding the copying needed to conjure up the original song, for the foregoing reasons the Court concludes that 2 Live Crew’s use of the original copyrighted song is protected fair use. IV. Defendants also argue that plaintiff’s state law claims for interference with business relations and interference with prospective business advantage for the performance and distribution of a copy of “Oh, Pretty Woman” are preempted by § 301 of the Copyright Act. 17 U.S.C. § 301 describes the extent to which the Copyright Act preempts state law causes of action based on copyright. It provides in pertinent part: (a) On and after January 1, 1978 all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of 291la Appendix P copyright as specified by section 106 in works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright as specified by sections 102 and 103 ... are governed exclusively by this title. Thereafter no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State. (b) Nothing in this title annuls or limits any rights or remedies under the common law or statutes of any State with respect to — (3) activities violating legal or equitable rights that are not equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106. A two-part test determines when § 301(a) preempts at common law tort claim. “First, the work in which the right is asserted must be fixed in tangible form and come within the subject matter of copyright as specified in [17 U.S.C. § 102]. Second, the right must be equivalent to any of the rights specified in [17 U.S.C. § 106].” Baltimore Orioles v. Major League Baseball Players Assn., 805 F.2d 663, 674 (7th Cir. 1986), cert. denied, 480 U.S. 941 (1987). See also Harper & Row Publishers, Inc., v. National Enterprises, 723 F.2d 195, 199-200 (2d Cir. 1983), rev'd on other grounds, 471 U.S. 539 (1985). In this case, Acuff-Rose focuses on the second factor of the § 301 analysis. It argues that the tort claim is not “equivalent to ” 292a Appendix P the rights set forth in § 106. Aright under state law is equivalent if it creates or destroys any of the rights contained in Copyright Act. /d. at 676; Allied Artists Pictures Corp. v. Rhodes, 679 F.2d 656, 662- 63 (6th Cir.), aff’g in pertinent part, 496 F. Supp. 404, 443-44 (S.D. Ohio 1980). Section 106 of the Copyright Act grants plaintiffs the exclusive right to reproduce, distribute, perform and display the copyrighted work, “Oh, Pretty Woman.” 5. Section 106 of the Copyright Act provides: Subject to sections 107 through 118, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyright work in copies or phonorecords, (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; (4) in the case of literary, musical, dramatic, or choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; and (5) in the case of literary, musical, dramatic, or choreographic works, pantomimes, and pictorial, graphic or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyright work publicly. 293a Appendix P With respect to Acuff-Rose’s claim for interference with business relationships, Tennessee common law provides that “{[Ojne’s business is entitled to protection ‘from tortious interference by a third person who, in interfering therewith, is not acting in the exercise of some right, such as the right to compete for business.’ ” Lann v. Third National Bank, 198 Tenn. 70, 72, 277 S.W.2d 439, 440 (1955). To prevail on such a claim, the plaintiff must show malice, ill will, or wrongful motive. /d. See also Testerman v. Tragesser, 789 S.W.2d 553, 556-57 (Tenn. App. 1989) (citing Lann). Plaintiff alleges that it has lost benefits flowing from its copyright monopoly. Like the copyright infringement claim, violation of the state law claim rests on a finding of unauthorized copying. “In both cases, it is the act of unauthorized publication which causes the violation. The enjoyment of benefits from derivative use is so intimately bound up with the right itself that is could not possibly be deemed a separate element. . . .” Harper & Row, 723 F.2d at 201. In addition, the fact that the state law cause of action requires proof of intent does not necessarily preclude a finding of preemption. The Second Circuit concluded in Harper & Row that: [T]he fact that cross-appellants pleaded additional elements of awareness and intentional interference, not part of acopyright infringement claim goes merely to the scope of the right; it does not establish qualitatively different conduct on the part of the infringing party, nor a fundamental nonequivalence between the state and federal rights implicated. Id. Since the claim is equivalent to rights established by § 106 the cause of action is preempted by federal law. See also, Gemcraft Homes, Inc. v. Sumurdy, 688 F. Supp. 289, 295 (E.D. Tex. 1988) (holding that plaintiff's claim for tortious interference with 294a Appendix P contractual relations is preempted by § 301); Pacific & Southern Co., Inc. v. Satellite Broadcast Networks, Inc., 694 F. Supp. 1565, 1572-73 (N.D.Ga. 1988) (same); McNabb Bennett & Associates, Inc. v. Terp Meyers Architects, No. 85-C-8792, (N.D. Ill. June 19, 1986) (available on Westlaw) (same). The question about whether § 301 preempts any Tennessee tort for interference with prospective business advantage is trickier. The plaintiff has not cited any Tennessee case in which recovery was allowed for wrongful interference not involving a breach of contract, and it appears that Tennessee has not developed any significant body of law in this area. Warde v. Kaiser, 887 F.2d 97, 103 n.1 (6th Cir. 1989) (citing Cesnik v. Chrysler Corp., 490 F. Supp. 859, 874 (M.D. Tenn. 1980) (Wiseman, J.)). Even assuming arguendo that interference with prospective business advantage constitutes a separate tort under Tennessee law, such a cause of action is nevertheless preempted by federal law. As the Court found for the interference with business relationship claim, this second tort is equivalent to the rights specified in 17 U.S.C. § 106 and thus is preempted by federal law as well. See e.g, Motown Record Corp. v. George A. Hormel & Co., 657 F. Supp. 1236, 1240 (C.D. Cal. 1987) (holding that plaintiff’s claim for tortious intereference with prospective business advantage is preempted by § 301). s/ Thomas A. Wiseman THOMAS A. WISEMAN, JR. CHIEF JUDGE 295a APPENDIX Q — ORDER GRANTING PARTIAL SUMMARY JUDGMENT IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE NASHVILLE, TENNESSEE 3:90-0524 ACUFF-ROSE MUSIC, INC. 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 YWALKER RECORDS ORDER For the reasons stated in the accompanying Memorandum, the Motion for Summary Judgment made by defendants 2 Live Crew and Luke Skyywalker Records against plaintiff Acuff-Rose Music, Inc. is granted pursuant to Rule 56 of the Federal Rules of Civil Procedure. 2 Live Crew’s rendition of “Pretty Woman” is a parody of the original “Oh, Pretty Woman” that constitutes fair use under 17 U.S.C § 107 of the Copyright Act, 17 U.S.C. §§ 101-914 (1982). See, e.g., Fisher v. Dees, 794 F.2d 432, 436 (9th Cir. 1986). The two Tennessee state law claims for interference with business relations and interference with prospective business advantage for the performance and distribution of a copy of “Oh, Pretty Woman” are preempted by 17 U.S.C. § 301. 296a Apvendix Q IT IS SOORDERED. s/ Thomas A. Wiseman, Jr. THOMAS A. WISEMAN, JR. Chief Judge 297a APPENDIX R — MOTION FOR ENTRY OF SUPPLEMENTAL ORDER 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 SKY YWALKER RECORDS, Defendants. MOTION FOR ENTRY OF SUPPLEMENTAL ORDER Comes now the Plaintiff, Acuff-Rose Music, Inc. (“Acuff- Rose”), and moves the Court, pursuant to 28 U.S.C. § 1292(b) and the applicable Federal Rules of Civil Procedure, for a supplemental order certifying for purposes of appeal the Court's January 14, 1991, grant of summary judgment on the issues of fair use and of preemption, since there is no just reason for delay and since such issues constitute controlling questions of law, the 298a Appendix R prompt resolution of which will materially advance the ultimate termination of the litigation. In support of its motion, Acuff-Rose would show as follows: 1. Acuff-Rose commenced this action on June 18, 1990. 2. On August 1, 1990, Defendants moved pursuant to Rule 67 of the Federal Rules of Civil Procedure to deposit into the Court the sum of $13,867.56. The Court allowed the deposit to be made by order dated August 24, 1990. 3. The Court’s Memorandum and Order entered January 14, 1991, found The 2 Live Crew's rendition of “Pretty Woman” to be a parody that constituted fair use. The Order granted Defendants’ motion for summary judgment, denying Acuff-Rose’s copyright infringement claims and further holding that the two pendent state law claims for interference with business relations and interference with prospective business advantage were preempted. The Court acknowledged that Defendants had deposited a sum with the Court pursuant to Rule 67 of the Federal Rules of Civil Procedure but reserved the question whether the sum constituted adequate compliance with the Copyright Act in discharging Defendants’ obligation to Plaintiff under the Act. 4. By letter dated January 30, 1991, counsel for Defendants forwarded a copy of a royalty statement and represented that according to this statement Defendants owed Acuff-Rose $11,956.49. Counsel for Defendants further noted that this amount was $1,911.07 less than the amount deposited with the Court in August 1990. See attached Exhibit A. 5. As of the date of this Motion, no disposition of the funds deposited pursuant to Rule 67 has been made. 29a Appendix R 6. On February 11, 1991, Acuff-Rose filed a Notice of Appeal in this action. 7. Becahse the Court’s January 14 Memorandum and Order reserved the question as to the adequacy of the sum deposited with the Court, the January 14, 1991, Order may be less than the full and final judgment required to provide jurisdiction for the Sixth Circuit Court of Appeals. Out of an abundance of caution, Acuff-Rose moves for a supplemental order certifying for purposes of appeal the Court’s January 14, 1991, ruling on the issues of fair use and preemption, since there is no just reason for delay, and since such issues constitute controlling questions of law, the prompt resolution of which will materially advance the ultimate termination of the litigation. 8. Further, Acuff-Rose respectfully disagrees with the Court’s determination on the controlling issues of law decided on January 14, and therefore submits it is entitled to sums far in excess of those that Defendants concede are due to discharge their obligation to Acuff-Rose under the Copyright Act. Acuff-Rose expressly reserves its position and right to claim additional amounts due and owing in excess of those deposited with the Court in the event its appeal is successful or in further proceedings. As set forth in Mr. Turk’s letter of January 30, 1991, Defendants contend that the sum of $11,956.49 will adequately discharge their obligation to Acuff-Rose due under the Copyright Act. While Acuff-Rose does not agree with this contention, there is obviously no dispute that Defendants owe Acuff-Rose at least $11,956.49. Accordingly, Acuff-Rose further moves that the Court enter a separate order directing payment of $11,956.49 to Acuff-Rose and retaining the balance of the $13,867.56 deposited by Defendants pending further proceedings. 300a Appendix R 9. In view of these considerations, Acuff-Rose respectfully requests an expedited resolution of this motion. Respectfully submitted, KING AND 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 Of Counsel: Hal L. Willis Opryland USA, Inc. 2806 Opryland Drive Nashville, TN 37219 30la Appendix R CERTIFICATE OF SERVICE I hereby certify that on February 13th, 1991, a true and exact copy of the foregoing Motion for Entry of Supplemental Order was served on Defendants by placing a copy of same in the U.S. Mail, postage prepaid thereon, addressed to: Alan Jacobi, Esq. 1313 125th Street, NE North Miami, FL 33161 Alan M. Turk, Esq. Sanford R. Ross, Esq. 3310 West End Avenue Nashville, TN 37203 s/ E. Andrew Norwood E. Andrew Norwood 302a APPENDIX S — SUPPLEMENTAL ORDER CERTIFYING INTERLOCUTORY APPEAL 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, V. LUTHER R. CAMPBELL a/k/a’ Luke Skyywalker, CHRISTOPHER WONGWON a/k/a Fresh Kid Ice, MARK ROSS a/k/a Brother Marquis, DAVID HOBBS a/k/a Mr. Mixx, _p/k/a THE 2 LIVE CREW, and LUKE SKY YWALKER RECORDS, Defendants. SUPPLEMENTAL ORDER On January 14, 1992, the Court issued a memorandum and an Order which the clerk entered on the Civil docket pursuant to Rules 58 and/or 79(a) of the Federal Rules of Civil Procedure. In that Memorandum and Order the Court held that The 2 Live Crew's rendition of “Pretty Woman” was a parody that constituted a fair use of Plaintiff’s copyrighted work, “Oh, Pretty Woman” and that the two pendent state law claims were preempted by 17 U.S.C. § 301. The Court acknowledged that funds had been deposited by 303a Appendix § Defendants with the Court pursuant to Rule 67 of the Federal Rules of Civil Procedure, but expressly reserved the question whether that sum was adequate compliance with the Copyright Act in discharging Defendants’ obligation to Plaintiff under the Act. Because the Court reserved its decision as to the adequacy of the sum deposited under Rule 67, the Order of January 14, 1991, is not an order appealable under 28 U.S.C. §§ 1291 and 1292 except pursuant to 28 U.S.C. § 1292(b). In the-Court’s opinion, the January 14 Order and Memorandum involve controlling questions of law as to which there is substantial ground for difference of opinion and an immediate appeal from the Order and Memorandum will materially advance the ultimate termination of the litigation. There is no just reason for delay. The Court hereby certifies that such Order should be appealable pursuant to 28 U.S.C. § 1292(b). This Supplemental Order is entered in supplementation and amendment of the Order and Memorandum entered on January 14, 1991. s/ Thomas A. Wiseman, Jr. THOMAS A. WISEMAN, JR. Chief Judge 304a APPENDIX T — ORDER OF THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT DENYING INTERLOCUTORY APPEAL UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT Case No. 91-8507 ACUFF-ROSE MUSIC, INC.., Petitioner, v. LUTHER R. CAMPBELL, also know as Luke Skyywalker; CHRISTOPHER WONGWON, also known as Fresh Kid Ice; MARK ROSS, also known as Brother Marquis; DAVID HOBBS, also known as Mr. Mixx, professionally known as THE TWO LIVE CREW and LUKE SKY YWALKER RECORDS, Respondents. BEFORE: JONES and SUHRHEINRICH, Circuit Judges; and JOINER, Senior District Judge*. ORDER Plaintiff seeks permission under 28 U.S.C. § 1292(b) to appeal an order granting summary judgment to defendants on plaintiff's claims of copyright infringement, interference with business relationships, and interference with prospective business advantages. The order reserved decision on whether certain funds deposited by defendants in the district court with sufficient * The Honorable Charles W. Joiner, Senior District Judge for the Eastern District of Michigan, sitting by designation. 305a - Appendix T compensation to plaintiff under the Copyright Act. The defendants do not oppose the petition. To obtain permission to appeal pursuant to 28 U.S.C § 1292(b), the movant must show that: (1) the question involved is one of law; (2) the question is controlling; (3) there is substantial ground for differences of opinion respecting the correctness of the district court’s decision; and (4) an immediate appeal would materially advance the ultimate termination of the litigation. Cardwell v. Chesapeake & Ohio Ry. Company, 504 F.2d 444, 446 (6th Cir. 1974). Review under § 1292(b) should be sparingly granted and then only in exceptional cases. Kraus v. Board of County Road Comm'rs, 364 F.2d 919, 922 (6th Cir. 1966); Jn re April 1977 Grand Jury Subpoenas, 584 F.2d 1366, 1369 (6th Cir. 1978) (en banc), cert. denied, 440 U.S. 934 (1979); see also Lynch v. Johns-Manville Sales Corp., 701 F.2d 44 (6th Cir. 1983). Upon review and consideration, we conclude that immediate appeal will not materially advance the ultimate termination of the litigation. It therefore is ORDERED that the petition for leave to appeal is denied. ENTERED BY ORDER OF THE COURT s/ Leonard Green, Jr. Clerk 306a APPENDIX U — MOTION FOR DISTRIBUTION OF FUNDS OR PERMISSION TO FILE ADDITIONAL BRIEFS FILED JUNE 10, 1991 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, v. LUTHER R. CAMPBELL a/k/a Luke Skyywalker, CHRISTOPHER WONGWON a/k/a Fresh Kid Ice, MARK ROSS a/k/a Brother Marquis, DAVID HOBBS a/k/a Mr. Mixx p/k/a THE 2 LIVE CREW and LUKE SKY YWALKER RECORDS, Defendants. PLAINTIFF ACUFF-ROSE’S MOTION FOR DISTRIBUTION OF FUNDS OR PERMISSION TO FILE ADDITIONAL BRIEFS Comes now the Plaintiff, Acuff-Rose Music, Inc., (“Acuff- Rose”) and moves the Court either to distribute in a manner consistent with the Court’s January 14, 1991, Memorandum and Order (“January 14 Order”) the funds being held by the Clerk of the Court or to direct further briefing of the impact of the Court's Order on the distribution of the funds. In support of this motion, Acuff- Rose states: 307a Appendix U 1. On August 24, 1990, the Court ordered that funds, the Defendants represented to be all the funds owed to Acuff-Rose, be deposited with the Clerk of the Court. 2. In the January 14 Order, the Court granted summary judgment to the Defendants but reserved the question of “whether the sum [deposited on August 24] reflects adequate compliance with the [Copyright] Act.” January 14 Order at 3. 3. On February 19, 1991, the Court granted a 28 U.S.C. § 1292(b) certification of the January 14 Order. 4. On April 4, 1991, the Sixth Circuit Court of Appeals refused permission to appeal under the certification. 5. Significant legal issues are raised by the January 14 Order and by a distribution of the funds not inconsistent with that Order. The Court would benefit from briefing on those issues. Therefore, Acuff-Rose moves that the Court either distribute the funds being held or set a briefing schedule so that the parties may address the issues raised. Respectfully submitted, KING & BALLOW BY: s/ Francis J. Del Casino R. Eddie Wayland E. Andrew Norwood Francis J. Del Casino 308a Appendix U 1200 Noel Place 200 Fourth Avenue North Nashville, TN 37219 Attomeys for Plainuff Acuff-Rose Music, Inc. Of Counsel: Hal Willis 2806 Opryland Drive Nashville, TN 3721 Acuff-Rose Music, Inc. 309a Appendix U CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing Plaintiff Acuff-Rose’s Motion For Distribution of Funds Or Permission To File Additional Briefs was duly served this 10th day of June 1991, by U.S. Mail, postage prepaid addressed as follows: Alan M. Turk, Esq. Sanford R. Ross, Esq. 3310 West End Avenue Fourth Floor Nashville, Tennessee 37203 Alan Jacobi, Esq. 1313 125th Street, NE North Miami, FL 33161 s/ Francis J. Del Casino Francis J. Del Casino 310a APPENDIX V — MOTION TO AMEND COMPLAINT FILED JUNE 10, 1991 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 SKY YWALKER RECORDS, Defendants. PLAINTIFF'S MOTION TO AMEND COMPLAINT Pursuant to Federal Rule of Civil Procedure 15, Plaintiff Acuff-Rose Music, Inc. (“Acuff-Rose”) moves for permission to amend the Complaint in this action. In Support of this Motion, Acuff-Rose states: 1. Acuff-Rose filed the Complaint in this action for copyright infringement and interference with business relationships and with prospective business advantage on June 18, 1990, based on 3lla Appendix V Defendants’ creation and distribution of a musical work entitled “Pretty Women.” Acuff-Rose asserted, inter alia, that this work infringed Acuff-Rose’s copyrighted work “Oh, Pretty Woman” and interfered with Acuff-Rose’s business interests. 2. Defendants’ label copy for “Pretty Woman” states that Roy Orbison and William Dees are the authors and states that Acuff- Rose Music, Inc. is the publisher. See Exhibit A. 3. On January 14, 1991, this Court granted Defendants’ Motion for Summary Judgment on the grounds that Defendants’ “Pretty Woman” was not an infringing derivative work because it was a parody of Acuff-Rose’s “Oh, Pretty Woman” and because Defendants’ parody use was a fair use under 17 U.S.C. § 107. The Court also held the Acuff-Rose’s state law claims were preempted by the Copyright Act. 4. The Court’s January 14, 1991, ruling in effect makes Defendants’ work a new copyrightable work and one that contains a false and misleading designation of origin. 5. Even though Acuff-Rose specifically denied permission for its copyrighted work to appear on Defendants’ album and never gave permission for its name to appear or Defendants’ album, Defendants mislabelled and falsely designated Acuff-Rose Music, Inc. as the source of the work that appeared on Defendants’ album under the name “Pretty Women.” The mislabelling and misdesignation violates 15 U.S.C. § 1125(a), which protects fair business competition by prohibiting the use in commerce of false and misleading designations of origin. 6. Furthermore, Defendants’ use of Acuff-Rose’s name on the label copy violates 15 U.S.C. § 1125(a) by falsely indicating a 312a Appendix V sponsorship, endorsement, license or other relationship between Defendants and Acuff-Rose. 7. Acuff-Rose seeks permission to amend the Complaint in this action to assert aclaim pursuant to 15 U.S.C. § 1125(a) against Defendants for the false designation of origin and the mislabelling of the composition included on the album. 8. Acuff-Rose has filed and served herewith the proposed Amended Complaint. 9. Acuff-Rose has filed and served herewith a Memorandum of Law in support of this motion. WHEREFORE, based on the foregoing, Acuff-Rose respectfully requests that the Court grant leave to amend the complaint in this action. Respectfully submitted, KING & BALLOW s/ By: Francis J. Del Casino R. Eddie Wayland E. Andrew Norwood Francis J. Del Casino 1200 Noel Place 200 Fourth Avenue, North Nashville, Tennessee 37219 (615) 259-3456 Of Counsel: Hal Willis Opryland USA, Inc. 2806 Opryland Drive Nashville, TN 37214 Acuff-Rose Music [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0382%3A05. Public record. Not legal advice.