Petitioners Brief — Campbell v. Acuff-Rose Music, Inc.

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|, FIED

| MUN 1 1993

No. 92-1292

ME CLERK

In The

Suprene Court of the United States

October Term, 1992

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

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

ROSS a/k/a BROTHER MARQUIS, DAVID HOBBS a/k/a

MR. MIXX; professionally known as THE 2 LIVE CREW;

LUKE 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

BRIEF ON THE MERITS

FOR PETITIONERS

BRUCE S. ROGOW ALAN MARK TURK

BRUCE S. ROGOW, P.A. ALAN MARK TURK,

2441 S.W. 28th Avenue ATTORNEY P.C.

Fort Lauderdale, Florida 33312 Counsel of Record

(305) 767-8909 200 Fourth Avenue, North

Suite 820

Nashville, Tennessee 37219

(615) 726-2999

Attorneys for Petitioners

NArgelat (800) 3 APPEAL + (800) 5 APPEAL * (800) BRIEF 21

QUESTION PRESENTED

Whether Petitioners’ commercial parody was a “fair use”

within the meaning of 17 U.S.C. § 107.

PARTIES TO THE PROCEEDINGS

Petitioners:

Luther R. Campbell*

David Hobbs*

Mark Ross*

Christopher Wongwon*

Luke Skyywalker Records**

Respondent:

Acuff-Rose Music, Inc.

* The 2 Live Crew

** The pleadings in this case do not reflect that the corporate name of the recording

company has been changed to Luke Records, Inc.

** The corporate Petitioner has no parent or subsidiary companies.

TABLE OF CONTENTS

Page

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Argument:

Petitioners’ Parody Was a Fair Use Within the

Meaning of 17U.S.C.§ 107. ................. 7

A. TheGuiding Principles ................. 7

B. A Parody Is Pessumgtively Protected. ...... 10

Contents

Page

C. AnAnalysis of the Factors in 17 U.S.C. § 107

Supports the Trial Court’s Determination that

i the Petitioners’ Parody Constitutes Fair Use

of the Respondent’s Copyrighted Work. .... 13

1. PurposeandCharacterofUse ........ 13

2. The Nature of the Copyrighted Work .. . 21

3. The Amount and Substantiality of the

Portion Used in Relation to the

Copyrighted Work asa Whole ........ 23

4. Effectonthe Market ................ 31

COED scnccscdedasiecaddncadncbesevansioses 38

TABLE OF CITATIONS

Cases Cited:

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

sub nom. Columbia Broadcasting System, Inc. v.

BOOT OR, Bilin TOO ACID cb cedcccesecsccces 24,25

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

SD 06 dddececceecentsesbudsusueuuadaneds 15, 19, 26, 28

Bloom & Hamlin v. Nixon, 125 F.977 (USCC Pa. 1903) .. 26

Columbia Pictures Corp. v. National Broadcasting Co.,

137 F. Supp. 348 (S.D. Cal. 1955) ................. 25

Contents

Page

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

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

SEED ccceccdvccesececesescuccesetedd 6, 16, 19, 28, 29, 35

Fisher v. Dees, 794 F.2d 432 (9th Cir. 1986) .......... 16, 19,24

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

GIRS ccc cccccccsccecasscncsoceces

Sony Corp. of America v. Universal City Studios, Inc., 464

Ge SPEED cevcceccesesconcecs 5, 17, 18, 19, 20,37, 38

Stewart v. Abend, 495 U.S. 207 (1990) ............065. 6,31

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

Inc.,626 F.2d 1171 (Sth Cir. 1980) ............055. 8

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

DS Vcscceenecoanenseassnneonseonneseces 24

Warner Brothers, Inc. v. American Broadcasting

Companies, Inc., 720 F.2d 231 (2d Cir. 1983) ........ 22

Statutes Cited:

SPINE oecccdedcccnnccavscosanieseecsiees 12

ag fA) eee i, 2,6, 7, 10, 13, 15, 16, 17, 19, 38, 39

SPREE cocacdveauededadeebeceadeeseeesees 4,16

Contents

PE ences desnecdiddccctscdceaccess

United States Constitution Cited:

PEED hoctea Wdakeveveesdennsecdbceeudes

Pt chun dbddbeadencateessSbuseuscddo’eds

Rules Cited:

Federal Rules of Civil Procedure:

ee saeneus

DT <thausasebedchesuissancesonsocbaucene

Other Authorities Cited:

Webster’s Third New International Dictionary, Unabridged

PoE Scancneueweecsenvenassesetecenauesdsess

U.S. House. Committee on the Judiciary, Copyright Law

Revision (Part 1) Report of the Register of Copyrights

on the General Revision of the U.S. Copyright Law,

Washington: Government Printing Office, July, 1961

ee ee |

Howard, John Tasker, Our American Music: A

Comprehensive History From 1620 to the Present,

Page

7,22

7,11

8,9

Even, David, Great Men of American Popular Song,

Prentice Hall (1970)

vil

Contents

“eeevereeeeeeeeeeeeeneeeeeeeeneee

Page

No. 92-1292

In The

Supreme Court of the United States

October Term, 1992

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

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

ROSS a/k/a BROTHER MARQUIS, DAVID HOBBS a/k/a MR.

MIXX, professionally known as THE 2 LIVE CREW; LUKE

SKYY WALKER RECORDS,

Petitioners,

VS.

ACUFF-ROSE MUSIC, INC.,

| Respondent.

On Writ of Certiorari to the United States Court of Appeals

for the Sixth Circuit

BRIEF ON THE MERITS FOR PETITIONERS

OPINIONS BELOW

The judgment of the United States District Court is reported at

754 F. Supp. 1150(M.D. Tenn. 1991).

The judgment of the Sixth Circuit Court of Appeals is reported

at 972 F.2d 1429 (6th Cir. 1992).

STATEMENT OF JURISDICTION

Title 28 U.S.C. § 1254(1) provides this Court’s jurisdiction.

The judgment of the Sixth Circuit Court of Appeals was entered

August 17, 1992. Petitioners’ motion for rehearing and rehearing

en banc was denied October 26, 1992. A Petition for Writ of

Certiorari was timely filed in this Court on Monday, January 25,

1993, and certiorari was granted March 29, 1993.

STATUTE INVOLVED

17 U.S.C. § 107 provides:

Notwithstanding the provisions of sections 106

and 106A, the fair use of a copyrighted work,

including such use by reproduction in copies or

phonorecords or by any other means specified

by that section, for purposes such as criticism,

comment, news reporting, teaching (including

multiple copies for classroom use),

scholarship, or research, is not an infringement

of copyright. In determining whether the use

made of a work in any particular case is a fair

use the factors to be considered shall include -

(1) the purpose and character of the

use, including whether such use is of a

commercial nature or is for nonprofit

educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the

portion used in relation to the

copyrighted work as a whole; and

(4) the effect of the use upon the

potential market for or value of the

copyrighted work.

STATEMENT OF THE FACTS

Roy Orbison and William Dees were the co-authors of a song

entitled “Oh, Pretty Woman.” In 1964, Orbison and Dees assigned

their rights in “Oh, Pretty Woman” to the Respondent, Acuff-Rose

Music, Inc. On August 26, 1964, Respondent registered “Oh,

Pretty Woman” for copyright protection under Copyright

Registration No. EP-191739.

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

well-known rap music group. On July 5, 1989, the Petitioners’

general manager wrote Acuff-Rose Music, Inc., informing it that 2

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

“Pretty Woman.” Petitioners advised Acuff-Rose that they

intended to afford all credit for ownership and authorship of the

song “Oh, Pretty Woman” to Acuff-Rose, Dees and Orbison, and

offered to pay the mechanical statutory rate for its use. Petitioners

enclosed a copy of the lyrics and a recording of the parody for

Acuff-Rose’s review. (Affidavit of Luther Campbell, J.A. 87).

Acuff-Rose refused permission: “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 Women.’ ” (J.A.

89). The Petitioners released the album As Clean As They Wanna

Be, which included the parody “Pretty Woman.”

STATEMENT OF THE CASE

In June, 1990, Acuff-Rose filed suit alleging that 2 Live Crew

willfully infringed and commercially exploited its rights in the

song “Oh, Pretty Woman” under the United States Copyright Act,

interfered with the Respondent’s business relations, and interfered

with the Respondent’s prospective business advantage.

(Complaint, J.A. 15-27).' The Petitioners, in response to the

Complaint, filed a Motion to Dismiss with supporting affidavits

from a parodist, Oscar Brand, from a music industry expert,

William Krasilovsky, and from Luther Campbell. (J.A. 28-29, 39-

80, 30-38, 93-98, 83-92). The attachments converted the Motion to

Dismiss to a Motion for Summary Judgment under Rule 12(b),

Fed. R. Civ. P. (J.A. 28-29).

The Petitioners, in accordance with Rule 67, Fed. R. Civ. P.,

deposited funds in the trial court, as if 2 Live Crew's version was a

derivative work of the Respondent’s copyrighted work.

Petitioners calculated the deposited amount using the statutory

mechanical rate in § 115 of the Copyright Act. (Motion to Deposit

Funds, J.A. 81-82). The trial court granted the Motion.

Acuff-Rose filed affidavits of its agent and a musicologist.

(Response to Motion to Dismiss, J.A. 105-144). The trial court

concluded that the parties’ affidavits left no material facts in

dispute and addressed the case on summary judgment.

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

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

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

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

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

Complaint, a photocopy of the compact disc cover and compact disc, have also

been lodged with the Court. In addition, Oscar Brand's sheet music comparison

of the two songs has been lodged with the Court.

On January 14, 1991, the trial court granted 2 Live Crew's

Motion for Summary Judgment and dismissed all three counts of

the Respondent’s Complaint. (J.A. 274-296). On October 2, 1991

the trial court returned the deposited funds and confirmed its fair

use finding in favor of 2 Live Crew. (J.A. 335).

The Respondent appealed. (J.A. 339-40). The Court of

Appeals for the Sixth Circuit reversed, over a dissent, and

remanded to the trial court essentially with directions to grant

summary judgment to Acuff-Rose. (J.A. 342-375). A Petition for

Rehearing en banc was denied. (J.A. 376-77). Petitioners filed a

timely Petition for Writ of Certiorari which was granted on March

29, 1993.

SUMMARY OF THE ARGUMENT

The recording at issue was a parody. It was produced for

profit. The Sixth Circuit held “[T]he blatantly commercial purpose

of the derivative work . . . prevents this parody from being a fair

use.” (J.A. 359). The Court rested its judgment on a sentence from

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

417, 451 (1984), restated in Harper & Row, Publishers, Inc. v.

Nation Enterprises, 471 U.S. 539, 562 (1985) that “every

commercial use of copyrighted material is presumptively an unfair

exploitation... .”

The Sixth Circuit erred by giving undue weight to the Sony/

Harper & Row comment. The Sixth Circuit erred by not giving

sufficient weight to “parody” as a genre which necessarily

imitates, copies and borrows in order to criticize, satirize and

entertain.

Sony and Harper & Row addressed piracy and plagiarism, not

parody. They cannot fairly be read to make commercial use the

decisive factor in a copyright case presenting the question of

whether a certain parody is a fair use under 17 U.S.C. § 107. That

statute identifies four non-exclusive factors as the starting point for

fair use analysis: (1) purpose and character of the use; (2) nature of

the copyrighted work; (3) amount and substantiality of the portion

used; (4) the effect of the use upon the potential market for the or

value of the copyrighted work.

Of the statutory four, “effect on the market” is “undoubtedly

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

U.S. at 566; Stewart v. Abend, 495 U.S. 207, 238 (1990). There was

no evidence that 2 Live Crew’s parody of “Oh Pretty Woman”

adversely affected the existing or potential market for Roy

Orbison’s original song. That factor weighs heavily in favor of fair

use, especially in a parody case.

The other statutory factors also favor fair use in this case.

Parody has historically been accepted as fair use, and case law

strongly supports its protection under the copyright laws. Parody is

generally performed for commercial purposes, but its character as

social commentary, even when commercial, cuts in favor of, not

against, fair use. Thus the “purpose and character” factor strongly

supports a fair use finding.

The “amount and substantiality” factor also favors the parody

in this case. It borrowed enough only to conjure the image of the

original work in the mind of the listener. It did not take “the heart of

the book,” Harper & Row, 471 U.S. at 564-65; it took only that

which “a parody frequently needs to be more than a fleeting

evocation of an original in order to make its humorous point.”

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

253 n.1 (2d Cir. 1980).

Even the “nature of the copyrighted work” factor tips towards

fair use in a parody case. Artistic and creative works are, of course,

protected under copyright law. But parody, by definition, is the

comic imitation of writing in which the “language and style of an

author or work is closely imitated for comic effect or in ridicule

....” Webster’s Third New International Dictionary, Unabridged

(1971). The 2 Live Crew’s parody of “Oh Pretty Woman” flattered

the creativity of the work by imitating it, exacting a fair use price

which creative works must suffer under the First Amendment and

the copyright laws’ balanced efforts pursuant to Article I, § 8, “To

promote. . . useful Arts,” including parodies.

The Sixth Circuit’s decision should be reversed, and the

district court’s finding of fair use affirmed.

ARGUMENT

PETITIONERS’ PARODY WAS A FAIR USE

WITHIN THE MEANING OF 17 U.S.C. § 107.

A. The Guiding Principles

The fair use doctrine, an exception to the law of copyright

infringement, is an important and established rule of reason,

guided, but not limited by four factors under 17 U.S.C. § 107: (1)

the purpose and the character of the use; (2) the nature of the

copyrighted work; (3) the substantiality of the portion used in

relation to the copyrighted work as a whole; (4) the effect on the

potential market for or value of the copyrighted work. Harper &

Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 560-561

(1985).

Fair use was traditionally defined as “a

privilege in others than the owner of the

reasonable manner without his consent.” H.

Ball, Law of Copyright and Literary Property,

260 (1944) .... The statutory formulation of

the defense of fair use in the Copyright Act

reflects the intent of Congress to codify the

common-law doctrine Section 107

requires a case-by-case determination whether

a particular use is fair, and the statute notes four

nonexclusive factors to be considered. This

approach was “intended to restate the [pre-

existing] judicial doctrine of fair use, not to

change, narrow, or enlarge it in any way.” H.R.

Rep. No. 94-1476, p. 66 (1976).

Id. at 549. (emphasis supplied). Fair use is “a ‘rule of reason’

fashioned by judges to balance the author’s right to compensation

for his work, on the one hand, against the public’s interest in the

widest possible dissemination of ideas and information, on the

other.” Triangle Publications, Inc. v. Knight-Ridder Newspapers,

Inc., 626 F.2d 1171, 1174 (Sth Cir. 1980).

The House Committee on the Judiciary, in an effort to define

the general scope of fair use, identified seven examples of the kinds

of use that are permitted. The Committee included and specifically

identified “use in a parody of some of the content of the work

parodied.” U.S. House. Committee on the Judiciary, Copyright

Law Revision (Part 1) Report of the Register of Copyrights on the

General Revision of the U.S. Copyright Law, p. 24 Washington:

Government Printing Office, July, 1961 (Y4.J89/1:C79/2). The

Committee concluded that:

Since the fair use doctrine may be applied in

any number and variety of circumstances, it

would be difficult to prescribe precise rules

suitable for all situations. For example, the

amount of work that may be properly used

under that doctrine will vary according to the

nature of the work, the essential character of

the portion used, and the purpose and

competitive effect of the use.

Nevertheless, the doctrine of fair use is such an

important limitation on the rights of copyright

owners, and occasions to apply that doctrine

arise so frequently, that we believe the statute

should mention it and indicate its general

scope. It seems anomalous to have the statute

specify the rights of copyright owners in

absolute terms without indicating that those

rights are subject to the limitation of fair use.

Id. at 25.

The Petitioners’ “Pretty Woman” was a parody of “Oh, Pretty

Woman.” The district judge wrote: “Acuff-Rose may not like it,

and 2 Live Crew may not have crea‘ed the best parody of the

original, but nonetheless the facts convincingly demonstrate that it

is a parody.” (J.A. 281). The Court of Appeals accepted “that the

purpose of the use was to parody the original.” (footnote omitted).

(J.A. 351). Circuit Judge Nelson, dissenting from the Sixth

Circuit's conclusion that the parody was not fair use, framed the

issue presented:

Perhaps the most troublesome fair use issue of

all is the question of whether a particular

parody constitutes fair use of a copyrighted

original. The parody cases appear to be in

hopeless conflict.

(J.A. 360). This Court can resolve the conflict by recognizing

parody’s special place in art and literature, and by concluding that

2 Live Crew's commercial parody was fair use because, most

importantly, it had no real effect “upon the potential market for or

value of the copyrighted work.” 17 U.S.C. § 107(4).

This last factor [§ 107(4)] is undoubtedly the

single most important element of fair use. See 3

Nimmer § 13.05[A] at 13-76 and cases cited

therein. “Fair use, when properly applied, is

limited to copying by others which does not

materially impair the marketability of the work

which is copied.” 1 Nimmer § 1.10[D] at 1-87.

Majdalany> <the . . . elite who live a = of 19th

century French culture —Alastair Reid> 3a:

an imitation of a musical composition in which

the original text or music has been altered usu.

in a comical manner b : PARODY MASS syn

see CARICATURE

Webster’s Third New International Dictionary, Unabridged

(1971).

Parody has historically been protected because of its

important social and political significance as a form of expression

which often communicates political views to the public. The

parody is deeply rooted in our nation’s history. These creative

derivative works have historically been commercially sold and

performed. “Yankee Doodle,”? “The Star Spangled Banner,” and

Harper & Row, 471 U.S. at 566-67.

B. A Parody Is Presumptively Protected.

The parodist is an important part of European-American

culture. The dictionary definition of “parody” reflects its roots:

par-o-dy \‘parade also ‘per- or -di\ n -ES [L

parodia, fr. Gk paroidia, fr. para beside + oidia

(fr. oeidein to sing) — more at ODE] la: a

writing in which the language and style of an

author or work is closely imitated for comic

effect or in ridicule often with certain

peculiarities greatly heightened or exaggerated

(these plays ... are parodies of eighteenth

century French farce —Claudia Cassidy> b: a

literary style characterized by the reproduction

of stylistic peculiarities of an author or work

for comic effect or in ridicule (the dialogue. . .

lapses now and then into inadvertent = —

Wolcott Gibbs> — compare BURLESQUE! 2

: a form or situation showing imitation that is

faithful to a degree but that is weak, ridiculous,

or distorted : a feeble or ridiculous imitation <a

straggling = of a military moustache —Fred

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

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

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

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

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

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

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

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

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

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

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

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

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

3. The “Star Spangled Banner” began, circa 1775, as the marching song of

London's Anacreontic Society, “To Anacreon in Heaven.” Originally, the song

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

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

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

(Cont'd)

“America” (“My Country 'Tis of Thee”)* are all political song

parodies, with American words put to popular English ballads of

the day. The use of political, musical parodies has continued

throughout the history of this country, including recent

commercial radio station parodies on the 1991 Gulf War.

Parody’s historical importance as a form of social criticism

and commentary requires a favorable fair use presumption as part

of the fair use analysis. Since a parody is itself creative, it too must

be afforded protection as fair use under the Copyright Act. The

Petitioners’ creative derivative work, admittedly a parody of the

Respondent’s copyrighted work, possesses the two fundamental

criteria for copyright protection as defined by 17 U.S.C. § 102:

(Cont'd)

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

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

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

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

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

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

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

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

4. “America” began with “Sally in My Alley,” an English tavern song. An

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

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

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

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

at 126-128.

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

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

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

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

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

stations, and given air time on those stations alongside commercial songs.

Baltimore Sun, “Song Parodist Aims Poison-Pen at Iraq,” August 23, 1990.

“originality” and “fixation in tangible form.” Therefore, like the

copyrighted work, the Petitioners’ parody has artistic importance

and sufficient “originality” to warrant some protection under the

requirement that parodistic efforts be given substantial weight as

part of the fair use equation, sets the proper stage for judging

The trial court, on undisputed facts, determined, that the

Petitioners’ creative derivative work of parody constituted “fair

use,” applying the four statutory factors in 17 U.S.C. § 107. The

undisputed facts, and the law in this case, compel the conclusion

that 2 Live Crew’s “Pretty Woman” meets the fair use test under the

four statutory factors, and the unenumerated “parody” factor. The

importance of the parody genre is central to review of the statutory

factors.®

C. An Analysis of the Factors in 17 U.S.C. § 107 Supports the

Trial Court’s Determination that the Petitioners’ Parody

Constitutes Fair Use of the Respondent’s Copyrighted Work.

1. Purpose and Character of Use

The issue presented is “whether Petitioners’ commercial

parody was a ‘fair use’ within the meaning of 17 U.S.C. § 107.”

Order granting certiorari, 113 S. Ct. 1642, March 29, 1993. The

purpose and character of a parody is to imitate. The trial court, the

appellate court, and even the Respondent's agent, when denying

permission to 2 Live Crew, characterized the Petitioners’ creative

derivative work as a “parody.” Judge Nelson's dissent said:

6. The Sixth Circuit recognized parody's privilege: “[W)Je find that the

term parody must be either subsumed within the statutory terms ‘criticism’ or

‘comment’ or be an entirely separate category of exception.” (J.A. 350-51). The

majority simply did not afford parody its proper weight in the statutory analysis.

I am satisfied that the 2 Live Crew version both

imitates and distorts the original work for

comic or satiric effect, and does so in such a

way that both the original work and the work of

the parodist are readily recognizable. The

parody (done in an African-American dialect)

was Clearly intended to ridicule the white bread

original — and if a higher criticism is

necessary to qualify the derivative work as true

parody, such criticism is readily discernable.

(J.A. 365). Judge Nelson continued, after comparing the themes of

the two works:

This, I should say, is “criticism” with a

vengeance — and the thematic relationship to

the original is obvious. The relationship

between the copyrighted song and the parody is

every bit as patent as was the corresponding

relationship between the songs considered by

the courts in Elsmere Music, Inc. v. National

Broadcasting Co., 482 F. Supp. 741 (S.D.N.Y.

1980) aff’d 623 F. 2d 252 (2nd Cir. 1980). That

case involved an oft-repeated advertising

jingle known as “I Love New York” and a

Saturday Night Live take-off entitled “I Love

Sodom.” The parody was held to constitute a

fair use of the original. The statutory factors, in

my view, fully support a corresponding result

in the instant case.

(J.A. 366-67).

Even the majority accepted (with reservation) “the district

court’s conclusion that the purpose of the use was to parody the

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original.” (J.A. 351). The majority acknowledged that parody,

prior to the codif’: ation by Congress, had long been a recognized

exception of the common law “fair use” doctrine. In Berlin v. E.C.

Publications, Inc., 329 F.2d 541, 545 (2nd Cir. 1964), Judge

Kaufman wrote:

For, as a general proposition, we believe that

parody and satire are deserving of substantial

freedom — both as entertainment and as a form

of social and literary criticism. As the readers

of Cervantes’ “Don Quixote” and Swift's

“Gulliver’s Travels” or the parodies of a

modern master such as Max Beerbohm well

know, many a true word is indeed spoken in

jest.

(Emphasis in original).

Parody’s character and use as political and social commentary

weighs heavily in favor of fair use. While we suggest a

presumption in favor of fair use if a creative derivative work can be

characterized as a parody (with the copyright owner relying upon

the statutory factors and other relevant information to attempt to

rebut the fair use presumption), under any construct this parody is

entitled to claim its full allowance of fair use freedom under

subsection (1) of § 107.

The Petitioners’ request for permission to parody “Oh, Pretty

Woman,” their offer of statutory fees, and the rejection of that

offer, buttresses our argument.’

7. Petitioners’ deposit of the statutory fee was an attempt to recognize the

balance between the copyright owner's statutory right to compensation and the

public's right to access copyrighted works. Respondent's rejection of

remuneration was a rejection by the Respondent of the Petitioners’ right to

freedom of expression.

In certain circumstances a derivative work must pay a

statutory rate for its use of the copyrighted work. 17 U.S.C. § 115.

However, if the derivative work is creative and distinguishable

from the copyrighted work, such as a parody, then the use

constitutes fair use and no payment is required under 17 U.S.C.

§ 107. One of the reasons why payment is not required is because

the copyright owner will likely resent and object to the parody, and

as in the case at bar, may even refuse payment from the parodist. It

is in part the “originality” that the copyright owner objects to as

well as the “criticism” and “comment” of the copyrighted work.

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

and record political parody songs of copyrighted material. These

range from the nationally televised Saturday Night Live [see

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

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

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

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

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

is highly unlikely that the copyright owners would grant

permission if requested. See Appendices to Capitol Steps

Productions, Inc. and Mark Russell Motion for Leave to File Brief

Amicus Curiae in Support of Petitioners. The Petitioners should be

lauded, not punished, for seeking permission prior to releasing

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

the United States Court of Appeals for the Ninth Circuit

commented:

Fisher and Segel fault Dees for using the song

after Fisher expressly refused him permission

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

and “American Radio Theater,” Oregon's “Summer Angels,” the

“Bushwackers” of Oberlin College, Ohio, the “Last Chance Dixieland Jazz

Bank” of Helena, Montana, and Washington, D.C.'s “Hexagon,” and “Mrs.

Foggybottom and Her Friends.”

to do so. In their view, this shows bad faith on

Dees’s part. We cannot agree. Parodists will

seldom get permission from those whose

works are parodied. Self-esteem is seldom

strong enough to permit the granting of

permission even in exchange for a reasonable

fee. See Note, The Parody Defense to

After Betamax, 97 Harv.L.Rev. 1395, 1397 n.

12 (1984) .... The parody defense to

make possible a use that generally cannot be

bought. See 3 M. Nimmer, supra, Section

13.05[C], at 13-89; Gordon, Fair Use As

Market Failure: A Structural and Economic

Analysis of the Betamax Case and its

Predecessors, 82 Colum.L.Rev. 1600, 1633 &

n. 177. Moreover, to consider Dees

blameworthy because he asked permission

would penalize him for this modest show of

consideration. Even though such gestures are

predictably futile, we refuse to discourage

them.

The second aspect of the first factor of 17 U.S.C. § 107 is the

“character of use, including whether such use is of a commercial

nature or is for non-profit educational purposes.” This Court, when

it reworded the question presented, clearly focused on the

commercial nature of the use. The court below was persuaded that

commercial use meant unfair use, relying on its interpretation of

Sony Corp., 464 U.S. 417, and Harper & Row, 471 U.S. 539.

In both Sony and Harper & Row, this Court stated that “every

commercial use of copyrighted material is presumptively an unfair

exploitation of the monopoly privilege that belongs to the owner of

the copyright.” Sony Corp., 464 U.S. at 451; Harper & Row,

Publishers, Inc., 471 U.S. at 562. The Court of Appeals for the

Sixth Circuit both misapplied the presumption to a creative

derivative work such as a musical parody, and strengthened the

presumption in a context far different from that presented in each

of those cases. Justice Brennan, dissenting in Harper & Row,

predicted that the commercial use presumption created in Sony

would be misapplied and misused to limit the dissemination of

creative derivative works.

Protection of the copyright owner’s economic

interest is achieved in this case through an

exceedingly narrow definition of the scope of

fair use. The progress of arts and sciences and

the robust public debate essential to an

enlightened citizenry are ill served by this

constricted reading of the fair use doctrine. See

17 U.S.C. § 107.

471 U.S. at579 (Brennan, J., dissenting).

Justice Brennan later noted in his dissenting opinion:

The Court’s reliance on the commercial nature

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

tends to weigh against a finding of fair use,”

ante, at 562, is inappropriate in the present

context. Many uses § 107 lists as paradigmatic

examples of fair use, including criticism,

comment, and news reporting, are generally

conducted for profit in this country, a fact of

which Congress was obviously aware when it

enacted § 107. To negate any argument

favoring fair use based on news reporting or

criticism because that reporting or criticism

a a Te _

ee er

was published for profit is to render

meaningless the congressional imprimatur

placed on such uses.

Id. at 592 (emphasis in original).

Until the decision below, the dominant forces in shaping the

fair use doctrine as it pertained to musical song parodies had been

the Second and Ninth Circuit Courts of Appeal. This was a case of

first impression in the Sixth Circuit. (J.A. 351).

The Second and Ninth Circuits, in a series of decisions

including Berlin v. E.C. Publications, Inc., 329 F.2d 541 (2nd Cir.

1964); Fisher v. Dees, 794 F.2d 432 (9th Cir. 1986); and Elsmere

Music Inc. v. National Broadcasting Co., 623 F.2d 252 (2nd Cir.

1980), have long provided an interpretation of 17 U.S.C. § 107

which draws a careful distinction between the parody of a musical

work and the plain piracy of that work for commercial gain. These

decisions had been the benchmarks which guided composers and

performers using parodies of copyrighted works. Neither Sony nor

Harper & Row supports the Sixth Circuit’s view that “commercial

use” outweighs the parody purpose of the use.

Sony involved verbatim copying of the copyrighted work by

non-parties to the suit —— VCR owners. Harper & Row involved

the reporting of portions of an unpublished manuscript by a direct

competitor of the licensor. Neither case examined the fair use

doctrine as applied to a creative derivative work such as a musical

parody. Nor did they address a case in which a parodist sought

permission and offered compensation to the copyright holder.

However, Harper & Row’s insights into “character of the use”

supports Petitioners’ position, given their offer to pay Acuff-Rose.

Also relevant to the “character” of the use is

“the propriety of the defendant’s conduct.” 3

Nimmer § 13.05[A] at, 13-72. “Fair use

presupposes ‘good faith’ and ‘fair dealing.’ ”

Time Inc. v. Bernard Geis Associates, 293 F.

Supp. 130, 146 (S.D.N.Y. 1968), quoting

Schulman, Fair Use and the Revision of the

Fair use “distinguishes between ‘a true scholar

and a chiseler who infringes a work for

.’ +

personal profit’.

Harper & Row, 471 U.S. at 562-63 (citation omitted).

Parody and all forms of social criticism are generally

commercial. A written parody may appear in a periodical which

either receives remuneration from the general public for the

purchase and/or from advertisers who support the distribution of

the periodical. Television and radio parodies are available to the

public because advertisers purchase air time from the station and/

or television network, or because the viewers purchase the cable

programming. Even a street performer who performs a parody of a

copyrighted work usually passes a hat around to the audience to

support his or her existence. Commercial use is only a starting

point for determining whether a parody is a fair use.

The decision below created an unreasonable presumption

against a finding of fair use for a commercial parody. If allowed to

stand, it will have a chilling effect on parody in this country. See

Capitol Steps Productions, Inc. and Mark Russell’s Motion For

Leave To File Brief of Amicus Curiae in Support of Petitioner.

The facts and holdings in Sony and Harper & Row are easily

distinguishable from this case. Here, the decision should be that no

presumption exists against a finding of fair use for a commercial

parody. Arebuttable presumption in favor of fair use, if a creative

derivative work can be defined as a parody, is a fairer approach to

a8 eee 44 tc De

the statutory and historical protections sought by the copyright

laws. As stated in Harper & Row in another context, the

commercial nature of a derivative work merely “tends to weigh

against a finding of fair use.” 471 U.S. at 562. The decision below

went too far when it held that “it is the blatantly commercial

purpose of the derivative work that prevents this parody from

being a fair use.” (J.A. 359). That view was unsupported by any fair

analysis of the facts and the relevant law.

2. The Nature of the Copyrighted Work

Judge Nelson’s dissent viewed the creative nature of the

copyrighted work as important, but not controlling because

parodies tend to mock widely recognized copyrighted works

known to the public. It would defeat the purpose of the parody if its

intended audience did not recognize the copyrighted work

parodied. Judge Nelson wrote:

The pertinent data in this connection are that

Orbison and Dees published “Oh, Pretty

Woman” long before the alleged infringement

occurred, and that theirs is a work of the

imagination rather than a piece of historical

reportage.

That the original song had long since been

published is a factor which works in favor of

the 2 Live Crew defendants. See Harper &

Row, 471 U.S. at 564, where the Supreme Court

declared that “the scope of fair use is narrower

with respect to unpublished works.” The fact

that “Oh, Pretty Woman” is a creative work

might tend to offset the publication factor,

perhaps, if the work were not being used for the

purpose of parody. Put parody routinely sets its

sights on the fictive as opposed to the factual.

If, as the Second Circuit insists, “parody and

Satire are deserving of substantial freedom,”

Berlin, 329 F. 2d at 545, it would make no sense

at all to penalize the parodist for taking as his

subject precisely the sort of work that has been

grist for parodists’ mills for the last two and a

half millennia.

3. The Amount and Substantiality of the Portion Used in

Relation to the Copyrighted Work as a Whole

The district court recognized that “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.” (J.A. 283).

The Sixth Circuit concurred:

(J.A. 369).

Article I, § 8 of the Constitution gives Congress power to

promote “useful Arts.” The copyright laws seek to achieve that

purpose both by providing exclusive rights to authors, and by

incorporating a “fair use” exception to those rights. That

recognition seeks to expand, not contract, creativity. Thus an artist

who has achieved a modicum of success must pay a fair price — the

ability to suffer imitation, criticism, or parody with a smile:

[A]ny work of sufficient notoriety to be the

object of parody has already secured for its

proprietor considerable financial benefit.

According that proprietor further protection

against parody does little to promote creativity

but it places a substantial inhibition upon the

creativity of authors adept at using parody to

entertain, inform, or stir public consciousness.

Warner Brothers, Inc. v. American Broadcasting Companies, Inc.,

720 F.2d 231, 242-243 (2d Cir. 1983).

Consequently, the creative nature of the Orbison-Dees

work does not insulate it from fair use. On the factual record of this

case, 2 Live Crew’s parody does not offend the “nature of the

work” statutory factor.

Parodies are generally allowed to use more of

the copyrighted work and still fall within the

rubric of fair use than are other types of

copying:

[T)he concept of “conjuring up” an original

came into the copyright law not as a limitation

on how much of an original may be used, but as

a recognition that a parody frequently needs to

be more than a fleeting evocation of an original

in order to make its humorous point. A parody

is entitled at least to “conjure up” the original.

Elsmere, 623 F.2d at 253 n. 1 (citation omitted).

(J.A. 355).

The dissent said:

The “portion used” test is problematical in this

context because parody cannot be parody

unless it allows the original work to shine

through in a form which, while distorted, is

recognizable. “Parody by its nature demands

close imitation,” Bisceglia, “Parody and

Law Symposium No. 34 at 17; substantial

usage is then almost a given.

(J.A. 370).

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

that determining whether or not the parodist exceeded the amount

which could be taken from the original work depended upon the

medium of the respective work. “ ‘{[W]hen the medium involved is

a comic book, a recognizable caricature is not difficult to draw, so

that an alternative that involves less copying is more likely to be

available than if a speech, for instance, is parodied.’” /d. at 439

(quoting Walt Disney Productions v. Air Pirates, 581 F.2d 751,758

(9th Cir. 1978)). The court concluded:

Like a speech, a song is difficult to parody

effectively without exact or near-exact

copying. If the would-be parodist varies the

music or meter of the original substantially, it

simply will not be recognizable to the general

audience. This “special need for accuracy”

provides some license for “closer” parody. See

id. To be sure, that license is not limitless: the

parodist’s desire to make the best parody must

be “balanced against the rights of the copyright

owner in his original expression.” /d. We think

the balance tips in the parodist’s favor here. In

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

its brevity, it takes no more from the original

than is necessary to accomplish reasonably its

parodic purpose.

794 F.2d at 439 (footnote omitted).

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

affirmed by an equally divided court sub nom. Columbia

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

Benny’s half-hour television burlesque of the movie “Gaslight”

was viewed as a copyright infringement. The central determination

in that decision was that the burlesque took substantially from the

original. In Columbia Pictures Corp. v. National Broadcasting

Co., 137 F. Supp. 348, 350 (S.D.Cal. 1955), the same district judge

in the Jack Benny case held that a Sid Caesar/Imogene Coca

television burlesque, “From Here to Obscurity,” did not infringe

the copyright of the movie, “From Here to Eternity,” nor did the

telecast constitute unfair competition to the movie. The court

distinguished its holding in Benny v. Loew's:

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

sufficient [sic] to cause the viewer to recall and

conjure up the original. This is a necessary

element of burlesque. As Dr. Baxter stated at

the trial of Loew's Incorporated v. Columbia

Broadcasting System, Inc., the defendant has

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

the blue.” ” 137 F. Supp. at 351.

The undisputed facts in this case support the same conclusion.

Luther Campbell said:

In writing the parody I felt it was necessary for

the listener to identify the parody version with

the original version. . . . 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.

(J.A. 84).

Oscar Brand, an expert in musical parodies, said:

In sum, the music on 2 Live Crew’s “Pretty

Woman” uses just enough material from the

Orbison composition to create a very

sophisticated comic parody of the original

song.

(J.A. 32-33).

The Acuff-Rose musicologist did not contest that conclusion.

(J.A. 138-41).

Other cases lend support to the difference parody makes when

judging amount and substantiality. Bloom & Hamlin v. Nixon, 125

F. 977,978 (USCC Pa. 1903) found that the singing of the chorus of

a copyright song, “Sammy” from the Wizard of Oz” was not an

infringement when sung by one mimicking the star of the show.

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

carrying the imitation along” and did not constitute an

infringement.

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

1964), the plaintiffs alleged that Mad Magazine, by compiling a

“collection of parody lyrics to 57 old standards which reflect the

idiotic world we live in today,” infringed upon the copyrights held

by the original works. /d. at 543. The parody lyrics were written in

the same meter as the original lyrics.“A Pretty Girl is Like a

Melody” was reconstituted into “Louella Schwartz Describes Her

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

original song publisher's claims of infringement:

We believe in any event that the parody lyrics

involved in this appeal would be permissible

under the most rigorous application of the

“substantiality” requirement. The disparities in

theme, content and style between the original

lyrics and the alleged infringements could

hardly be greater. In the vast majority of cases,

the rhyme scheme of the parodies bears no

relationship whatsoever to that of the originals.

While brief phrases of the original lyrics were

occasionally injected into the parodies, this

practice would seem necessary if the

defendants’ efforts were to “recall or conjure

up” the originals; the humorous effect achieved

when a familiar line is interposed in a totally

incongruous setting, traditionally a tool of

parodists, scarcely amounts to a “substantial”

taking, if that standard is not to be woodenly

applied. Similarly, the fact that defendants’

parodies were written in the same meter as

plaintiffs’ compositions would seem inevitable

if the original was to be recognized, but such a

justification is not even necessary; we doubt

that even so eminent a composer as plaintiff

Irving Berlin should be permitted to claim a

property interest in iambic pentameter.

In short, we believe that whatever use was

made of the plaintiffs’ works in this case fell far

short of the “substantial” takings which were

involved in Benny, even if we were to find the

rationale of that opinion persuasive. While the

social interest in encouraging the broad-

gauged burlesques of Mad Magazine is

admittedly not readily apparent, and our

individual tastes may prefer a more subtle

brand of humor, this can hardly be dispositive

here. Cf. Bleistein v. Donaldson Lithographing

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

a general proposition, we believe that parody

and satire are deserving of substantial freedom

— both as entertainment and as a form of social

and literary criticism. As the readers of

Cervantes’ “Don Quixote” and Swift's

“Gulliver’s Travels” or the parodies of a

modern master such as Max Beerbohm well

know, many a true word is indeed spoken in

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

that the parody has neither the intent nor the

effect of fulfilling the demand for the original,

and where the parodist does not appropriate a

greater amount of the original work than is

necessary to “recall or conjure up” the object of

his satire, a finding of infringement would be

improper.

329 F.2d at 545 (emphasis in original).’

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

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

that a skit on the television program Saturday Night Live which

“poked fun at New York City’s public relation campaign and its

theme song,” did not constitute copyright infringement. The

Plaintiffs had alleged that the parody “I Love Sodom” infringed on

their copyright of the song “I Love New York.” The District Court

summarized the parody:

9. In Berlin the court emphasized the failure by the plaintiffs to “indicat(e)

with any degree of particularity the manner in which [commercial] injury might

have been inflicted” and found that this tended to weaken the plaintiffs’ claims.

329 F.2d at 543. The Respondent in its supporting affidavits has also failed to

state with any particularity how the Petitioners’ use has caused any proximate

injury. See discussion, infra at pp.31-38.

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

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

the writers and cast of SNL to satirize the way

in which New York City attempted to improve

its somewhat tarnished image through the use

of a slick advertising campaign.

482 F. Supp. at 745.

The

footnote:

Second Circuit affirmed per curiam “on Judge Goettel’s

thorough opinion,” 623 F.2d at 253, and appended an enlightening

The District Court concluded, among other

things, that the parody did not make more

extensive use of appellant’s song than was

necessary to “conjure up” the original. 482

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

conclusion, we note that the concept of

“conjuring up” an original came into the

of an original may be used, but as a recognition

that a parody frequently needs to be more than a

fleeting evocation of an original in order to

make its humorous point. Columbia Pictures

Corp. v. National Broadcasting Co., 137 F.

Supp. 348, 354 (S.D.Cal. 1955). A parody is

entitled at least to “conjure up” the original.

Even more extensive use would still be fair use,

provided the parody builds upon the original,

using the original as a known element of

modern culture and contributing something

new for humorous effect or commentary.

Id. n. 1 (emphasis added).

The trial court in this case compared the two “Pretty

Women” and concluded that 2 Live Crew took only that which was

necessary to make their parody point:

In this case, 2 Live Crew has not mimicked so

much of “Oh, Pretty Woman” that it runs afoul

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. Speilman, 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.

Speilman. 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 conclusion 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.

(J.A. 284).

The trial court decided:

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.

(J.A. 286).

The Court of Appeals apparently concluded this factor was a

draw. It concluded that the relevant facts “cannot be used in any

way to support a finding of fair use.” (J.A. 357). But neither did the

court find that the portion used cut against fair use. That approach

is inconsistent with the cases recognizing a parody’s need to copy.

When parody is added to the “amount and substantiality” factor, 2

Live Crew prevails on this point too.

4. Effecton the Market

The Court has acknowledged that this factor is “undoubtedly

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

Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 566 (1985). It

is the “ ‘most important, and indeed central fair use factor.’ 3

Nimmer § 13.05 [A], p. 13-81;” Stewart v. Abend, 495 U.S. 207,

238 (1990). ;

Judge Nelson’s dissent below carefully examined the

32 33

affidavits presented by the parties, which constituted the only On the other hand, 2 Live Crew’s

effect on the market evidence before the trial court. He concluded: version, which is unquestionably a

To me, at least, it seems as clear in this case as it

did to the Second Circuit in Berlin that “the

parody has neither the intent nor the effect of

fulfilling the demand for the original. . . .” 329

F.2d at 545.

The affidavit of Oscar Brand says that

“Parodies have never interfered with the

popularity of the original. * * * The

sales graph of ‘Hello, Dolly’ didn’t

change when it became ‘Hello, Lyndon’

and ‘Hello, Nixon.” Hundreds of

popular songs have been ‘covered’ by

parody performances and recordings

without altering their popular appeal or

interfering with their sales.”

Although Brand’s assertion that parodies have

“never” interfered with the popularity of the

original strikes me as dubious, there has been

no showing of any such interference here.

Brand — who is probably on firmer ground

when he sticks to the specifics of this case —

explains that the audiences for the two songs

are quite different:

There is no question in my mind that the

song “Oh, Pretty Woman” by Roy

Orbison and William Dees was intended

for Mr. Orbison’s country music

-—— audience and middle-America.

comic parody, is aimed at the large

black populace which used to buy what

was once called ‘race’ records. The

group’s popularity is intense among the

disaffected, definitely not the audience

for the Orbison song. I cannot see how

it can affect the sales or popularity of the

Orbison song, except to stimulate

interest in the original.”

Brand’s analysis of the market stands

unrefuted. One month after Brand gave his

affidavit, the plaintiff’s Director of Licensing,

Gerald Teifer, executed an affidavit in which

there is no attempt to deny that the two songs

are aimed at different markets. Mr. Teifer does

suggest, however, that the 2 Live Crew parody

could impair the value of the plaintiff’s right to

grant licenses to parodists. And Mr. Jerry

Flowers, Executive Director of Publishing for

the plaintiff’s parent corporation, says in an

affidavit that the licensing of parodies of

established hit songs has become extremely

lucrative.

(J.A. 372-73).

Petitioners’ Krasilovsky affidavit supported Brand, the

district court and the dissent. Mr. Krasilovsky stated: “In other

10. Judge Nelson distinguished the licensing of parodies from interference

with the primary market, and noted the potential for copyright censorship if only

licensed parodies were permitted. (J.A. 374). We discuss, infra at 35-37, the

fallacy of letting future parody licensing govern the fair use analysis.

words, the record collector seeking the original composition would

be highly unlikely to purchase or tune into the 2 Live Crew

version.” (J.A. 95).

Bass music, the regional style of hip hop music played by the 2

Live Crew, was created in the Liberty City area of Miami, where

the group’s leader, Luther Campbell, began his career. The parody

created by the Petitioners was intended for a specific audience,

young urban blacks. The purpose of the parody was to mock the

banality of white centered rock-n-roll music by attacking one of its

time honored ballads. (J.A. 34). The intended market for the

parody was as different from that of the copyrighted work as black

and white.

The trial court in this case concluded:

With respect to the parody “Pretty Woman,”

this fourth factor favors the defendants. As in

Fisher, it is extremely unlikely that 2 Live

Crew’s song could adversely affect the market

for the original. The intended audience for the

two songs is entirely different. The odds of a

record collector seeking the original

composition who would also purchase the 2

Live Crew version are remote. Defendants’

Affidavit of William Krasilovsky. “The

group’s popularity is intense among the

disaffected, definitely not the audience for the

Orbison song. I cannot see how it can affect the

sales or popularity of the Orbison song, except

to stimulate interest in the original.”

Defendant's Affidavit of Oscar Brand. Second,

while Acuff-Rose is not required to prove

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

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

convincing evidence that any harm to any

existing or potential market has occurred.

(J.A. 288).

The trial court echoed Elsmere:

The song has not affected the value of the

copyrighted work. Neither has it had — nor

could it have — the “effect of fulfilling the

demand for the original.” Berlin v. E.C.

Publications, Inc., supra, 329 F.2d at 545. Just

as imitation may be the sincerest form of

flattery, parody is an acknowledgement of the

importance of the thing parodied. In short, the

defendant’s version of the jingle has not in the

least competed with or detracted from

plaintiff’s work.

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

Supp. at 747.

The opinion below misapplied the “effect on the market”

factor because it failed to focus on the potential market of the

original copyrighted work. Instead, the court focused on the harm

which it perceived the Petitioners’ creative derivative work might

cause to the market for licensing future potential parodies of “Oh,

Pretty Woman.” (J.A. 357-58). If the Sixth Circuit had

concentrated its analysis on the parody’s effect on the potential

market of the original copyrighted work, it could only have

reached the conclusion that this most important factor favors a

finding of fair use.

Acuff-Rose contended that the Petitioners’ parody precluded

Acuff-Rose from developing its own parody of “Oh Pretty

Woman” although offering no reasonable expectation of

criticizing or mocking its own rock-n-roll ballad. Nevertheless, the

Court of Appeals accepted the argument. (J.A. 357-58). That

precedent means every parody, commercial or otherwise, could be

defeated in a fair use case by the copyright owner simply asserting

its intent to release a future parody of its own original work.

infringement exists precisely to make possible

a use that generally cannot be bought.”)

(J.A. 289).

Judge Nelson's Sixth Circuit dissent concurred with the trial

court:

The district judge rejected that idea:

Parody, again, is different. It transforms as it

Plaintiffs attempted to focus on their possible copies, and it may well savage the original

future losses and mount two different work in the process. In the past, at least,

arguments. First, they contend that 2 Live copyright holders have not been overly

Crew’s parody prevents them from marketing enthusiastic about agreeing to see their works

future derivative works, such as a rap version parodied — and the law itself has licensed

or even their own “burlesque” of the Orbison parodists, much as the law has given license to

original. Second, they argue that “Oh, Pretty book reviewers, drama critics, and other

Woman” “has been tarnished by being commentators. Ours is 2 commercial age, to be

associated with these lyrics and with 2 Live sure, and consensual “parody licenses” may be

Crew” and that will result in the loss of future more common now than they used to be. |

licensing arrangements. confess that I am still uneasy, however, about

the prospect of the courts turning copyright

Since 2 Live Crew’s version of “Oh, Pretty holders into censors of parody. Neither the

Woman” is a parody, that release has not history of the fair use doctrine nor the four

prevented Acuff-Rose from _ recording factors enumerated in the Copyright Act

whatever version of the original it desires. compel such a result. “[PJermissible parody,

Likewise, plaintiff’s argument that it would be whether or not in good taste, is the price an

prevented from releasing a parody of their artist pays for success ....” MCA, Inc. v.

work is meritless. In a world where copyright Wilson, 677 F. 2d 180, 191 (2nd Cir. 1981)

monopoly stretched to that great extent, (Mansfield, J., dissenting).

parodies would be unlikely ever to be approved

by the original author. See 3 Nimmer, Nimmer (J.A. 374).

on Copyright, § 13.05[C] at 13-90. 12; Fischer,

794 F. 2d at 437 (Parodist will seldom get The Petitioners’ creative derivative work, unlike Sony and

permission from those whose works are Harper & Row, did not involve verbatim copying which could

parodied. . . . The parody defense to copyright harm the market for the original product. The Petitioners created a

separate and distinct creative work which is entitled to protection

under the Copyright Act. In Sony, the verbatim copying was

intended to supplant the copyrighted work by simply altering the

availability of the original copyrighted work as to when the public

could view the copyrighted work. Nevertheless, this Court found

“fair use.” In Harper & Row, the heart and soul of the unpublished

copyrighted work was presented in the guise of a book review. The

substantial taking directly competed with the copyrighted work

because, as a direct and proximate result of its publication, Time

Magazine, the licensor of the unpublished work, terminated its

licensing agreement to publish excerpts and failed to pay the

balance of the licensing fee. The publication by Nation Enterprises

did not constitute “fair use” precisely because it did adversely

affect the potential market of the copyrighted work.

There is no evidence in this record that the Petitioners’

creative derivative work has adversely affected either the existing

market and/or a potential market for the Respondent's copyrighted

work. Thus, on this most important factor, the 2 Live Crew

prevails.

CONCLUSION

The Petitioners’ commercial parody constitutes “fair use” of

the Respondent's copyrighted work. The first factor of 17 U.S.C.

§ 107, the purpose and character of the use, favors the Petitioners

because their creative derivative work is a parody. The second

factor, the nature of the copyrighted work, favors the Petitioners

because parody must be built on the original creator's

accomplishments. The third statutory factor, the amount and

substantiality of the portion used, favors the Petitioners because

they used only that amount necessary to “conjure up” the

copyrighted work. Finally, the fourth and determinative statutory

factor favors the Petitioners because the Petitioners’ creative

derivative work does not substitute for the copyrighted work nor

does it adversely affect the future marketability of the copyrighted

work.

A careful analysis of the four factors articulated in 17 U.S.C.

§ 107 supports a finding that the Petitioners’ creative derivative

work did constitute “fair use.” When the social and historical

importance of artistic parody is factored into the “fair use”

equation, use of the parody genre, even if commercial, is

presumptively fair.

The Court should reverse the decision of the United States

Court of Appeals for the Sixth Circuit and reinstate the trial court

decision that, as a matter of fact and law, the Petitioners’ parody

constitutes “fair use.”

Respectfully submitted,

ALAN MARK TURK

Counsel of Record

ALAN MARK TURK,

ATTORNEY, P.C.

200 Fourth Avenue, North

Suite 820

Nashville, TN 37219

(615) 726-2999

and

BRUCE S. ROGOW

BRUCE S. ROGOW, P.A.

2441 S.W. 28th Avenue

Fort Lauderdale, FL 33312

(305) 767-8909

Attorneys for Petitioners

Dated: May 28, 1993

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.