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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petitioners Brief
- **Published:** January 1, 1994
- **Citation:** 510 U.S. 569

## Text

|, FIED
| MUN 1 1993
No. 92-1292
ME CLERK
In The
Suprene Court of the United States
un

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.

ii
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.

:
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:
:

ul
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

iv

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

Vv

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

vt
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 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)

12

“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.

13

“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
Copyright Act of 1976. A presumption of fair use, or the
requirement that parodistic efforts be given substantial weight as
part of the fair use equation, sets the proper stage for judging
copyright cases concerned with parodies.

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.

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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.

16

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.”

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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
Copyright Infringement: Productive Fair Use
After Betamax, 97 Harv.L.Rev. 1395, 1397 n.
12 (1984) .... The parody defense to
copyright infringement exists precisely 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

18

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

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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

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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
Copyright Act, 53 lowa L.Rev. 832 (1968)... .
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

21

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

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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.

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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
Copyright Protection,” ASCAP Copyright

24

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),

25

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).

26
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

27

“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

28

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.

29

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
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. 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).

30

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:

31

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.

a

comic parody, is aimed at the large
black populace which used to buy what
was once called ‘race’ records. The
group’s popularity is intense among the
disaffected, definitely not the audience
for the Orbison song. I cannot see how
it can affect the sales or popularity of the
Orbison song, except to stimulate
interest in the original.”

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.

34

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

35

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

36

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.

37

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

38

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

39

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0382%3A06. Public record. Not legal advice.