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

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No. 92-1292 FILED

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MAY 28 1

| OFFICE OF THE oug

IN THE

Supreme Court of the Hnited States

OCTOBER TERM, 1992

>

LUTHER R. CAMPBELL A/K/A LUKE SKYYWALKER, CHRIS-

TOPHER WONGWON A/K/A FRESH KID ICE, MARK ROSS

A/K/A BROTHER MARQUIS, DAVID HOBBS A/K/A MR.

MIXX; PROFESSIONALLY KNOWN AS THE 2 LIVE CREW;

LUKE SKYYWALKER RECORDS,

Petitioners,

a

ACUFF-ROSE MUSIC, INC.,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF AMICUS CURIAE OF PEN AMERICAN

CENTER, IN SUPPORT OF PETITIONERS

ae

LEON FRIEDMAN

(Counsel of Record)

148 East 78th Street

New York, New York 10021

(212) 737-0400

"BEST AVAILABLE COPY”

” eS eee ee Se eee.

TABLE OF CONTENTS

eee GE REGED ccoccccesesceceose ii

Brief of Amicus Curiae......... err

ARGUMENT

THE SIXTH CIRCUIT’S RIGID AND

. MECHANICAL APPLICATION OF THE

FAIR USE FACTORS IS CONTRARY

TO THE PURPOSE OF THE

COPYRIGHT LAW AND DEPRIVES

THE PUBLIC OF THE BENEFIT OF

NON-COMPETITIVE PARODY ......-2-2eee0. 4

A. The Songs in Question........... 4

B. The Sixth Circuit Decision...... 5

c. The Flaws In the Sixth

Circuit Decision ..... ae ee 6

1. The Failure to Apply the

POUF"POFe TOSS. cccccccccesccces 10

2. The Misapplication of the

POUF“POEC TOSS. cccccccccccesecs 11

3. A New Parody Test......... 13

COUPEE coe eccesecoeeesececeeeces 15

TABLE OF AUTHORITIES

CASES

Page

Bleistein v. Donaldson Lithographing

Company, 188 U.S. 239 (1903) . .

squir .

591 F.2d 796 (D.C. Cir. 1978) . ‘ 12

H ; Row Publis! Nati

Enterprises, 471 U.S. 539 (1985) . Fe P

New Era Publications, ApS. v.

Henry Holt and Company, 873 F.2d 576

(2d Cir. 1989) cert. denied,

493 U.S. 1094 (1990) . . . . 11

Salinger v. Random House,

811 F.2d 90 (2d Cir.),

cert. denied, 484 U.S. 890 (1987) . 11

Walt Disney Products v. Air Pirates,

581 F.2d 751 (9th Cir. 1978),

cert. denied sub nom., O’Neill v.

Walt Disney Products, 439 U.S. 1132

(1979)... ; , : : » 2

Yankee Publishing Inc. v. News America

Publishing, Inc., 809 F. Supp. 267

(S.D.N.Y. 1992) 13

STATUTES

P.L. 102-192, 106 Stat. 3145

(October 24, 1992) . . . . » Al

ao

—

BRIEF AMICUS CURIAE

of PEN American Center

THE INTEREST OF THE AMICUS CURIAE *

PEN American Center ("PEN") is an

organization of 2,400 novelists, poets, essayists,

translators, playwrights, and editors, chartered to defend

free and open communication within all nations and

across national boundaries. American PEN has taken a

leading role in attacking restrictive laws, rules,

regulations and practices that censor, curb, or limit

freedom of speech or expression in the nation.

As an organization of writers, PEN recognizes

that the proper application of the copyright law assists

authors -- and ultimately the public -- by giving authors

an economic incentive to create those works. By

protecting authors against any unauthorized use of their

creations that would deprive them of the proper

economic value of their writings, copyright law serves

the interests of authors and readers alike.

By the same token, authors are often consumers

and borrowers of material previously written by others.

To paraphrase the famous remark of Sir Isaac Newton,

all writers "stand on the shoulders of giants," in the sense

that they use the facts, ideas, concepts or the style and

technique of those who wrote before them. No author

begins on a clean slate. As Justice Brennan stated in

Harper & Row Publishers v. Nation Enterprises, 471 U.S.

539, 582 (1985)(Brennan, J. dissenting): "Were an

author able to prevent subsequent authors from using

concepts, ideas and facts contained in his or her work,

the creative process would wither and scholars would be

forced into unproductive replication of the research of

their predecessors."

* Letters of consent to the filing of the within amicus

brief are being lodged with the Clerk of the Court

simultaneously with the filing.

Not only do authors use prior material created by

others as a resource, but they also makes it a point of

reference, for later creative activity. Most writing is a

reaction or a response to prior ideas, theories or

arguments. It is a given that a published work may be

quoted extensively by a later author for the purposes of

comment, criticism and analysis. In addition, since

expository writing is not the only way in which society

presents and debates its governing principles, often a

rior work is used in other ways as a jumping off point

or additional observation and comment. In particular, a

rior work should be able to be used through other

iterary devices, such as wey and satire. So long as the

later use is not a substitute for, and therefore a direct

competitive danger to, a prior creation, such use should

be widely allowed.

In the case now before the Court, the Court

below applied a mechanical and 7 approach to the

question of parody in the music field. But the rule it

established applies to literary creation as well. The Sixth

Circuit interpreted the protection of the copyright law so

expansively as to limit the ability of creative artists in

every field to use prior material for constructive, non-

competitive purposes. Because the decision below, by its

overprotective ruling on the scope of the fair use

doctrine relating to parody, significantly restricts the

—- authors to use previously published material,

the icus urges the Court to reverse the decision

below.

SUMMARY OF ARGUMENT

Viewed from the perspective of the copyright

decisions of this Court, the Sixth Circuit opinion flies in

the face of this Court’s analysis in H & Row,

Publishers, Inc v. Nation Enterpnses, 471 U.S. 539 (1985).

That case made clear that the determination of fair use

under Section 107 of the copyright law involves a four

part test, in which the commercial use of copyrighted

material is only one element to be considered in the total

calculus of fair use. The Sixth Circuit has converted the

four-part test embodied in Section 107 into a one-part

test: the only issue that appears to count is whether a

commercial use was made of the original material.

Even though, in the case now before the Court, a

parodist took original material openly and for the

avowed ys oe of using it in a totally different way, the

Court of Appeals did not appreciate the humor in the

situation and decided that not enough criticism or

comment on the original material was made. "Failing a

direct comment on the original, there can be no peewee

972 F.2d at 1436, n. 8. It appears to have seen its role as

that of a musical or literary critic, rather than as a court

interpreting a law that promotes creative activity while

accommodating the right of all to express themselves.

The conclusion reached by the Court below

cannot be squared with either the words of the statute,

this Court’s decision in Harper & Row or the need to

accommodate First Amendment interests in interpreting

the Copyright Law.

Furthermore, the approach taken by the Court

below totally ignores the importance of parody as a

literary art form. As noted above, prior copyrighted

material is often used as a point of reference for later

authors, and no rigid rule should be established that

would undercut such use for satire and parody. It would

be a appalling anomaly if the principles of copyright,

which are designed to assure the "progress of science

3

which are designed to assure the "progress of science

and the useful arts," (Const. Art. I, Sect. 8, cl. 8) are now

applied to act as a barrier to that progress.

ARGUMENT

I.

THE SIXTH CIRCUIT'S RIGID AND MECHANICAL

APPLICATION OF THE FAIR USE FACTORS

IS CONTRARY TO THE PURPOSE OF

THE COPYRIGHT LAW AND DEPRIVES

THE PUBLIC OF THE BENEFIT OF

NON-COMPETITIVE PARODY

A. The Songs in Question.

The two songs at issue in this case come from

opposite sides of the popular music spectrum.

Respondent’s work "Oh, Pretty Woman," was written

and recorded by Roy Orbison and William Dees in 1964,

and has become a pop music standard. It gained

renewed popularity after it became the theme song of

the successful 1991 film, "Pretty Woman" with Richard

Gere and Julia Roberts.

The original song describes how a "pretty

woman," is "walking down the street, Pretty woman, Girl

-- you look so sweet." The woman rejects the advances of

the male admirer, but later changes her mind, to the joy

of the singer. The girl in the song is attractive, admired

and finally becomes interested in her suitor. The tone of

the song is lyrical, soft and sweet, and the music, with a

country rock rhythm with moderate _ electric

instrumentation, is rich and soothing. Its message is

whimsical seduction.

Petitioner’s song has a totally different feel and

theme. The "pretty" women who is the subject of the "2-

Live Crew" song is not someone longed-for and admired

by the singers.

Big Hairy woman -- You need to

shave that stuff.

Big Hairy woman -- You know |

bet its tough.

Big Hairy Women -- all that hair

ain't legit, Cause you look like "cousin it."

Two timin’ woman -- Girl, you

know it ain’t right.

Two timin’ Woman -- You’s out

with my boy last night.

Two timin’ Woman -- That takes a

load off my mind.

Two timin’ Woman -- Now I know

that baby ain’t mine.

The genre of petitioners’ song is rap music, which

is about as far removed from the Roy Orbison song as is

ssible in the field of popular music. Two-Live Crew is

own for the blunt, misogynist message of its songs and

the hard rhythm of its beat. is message is

communicated in both lyrical content and musical form.

Petitioners use the same drum beat and bass riff as Roy

Orbison did to start the song, but the soft message of the

original is immediately diverted when a "scraper’ is used

to distort the melody and the first soloist sings off key.

As the district court described the musical process, "four

times during the parody, 2 Live Crew repeats Orbison’s

bass riff over and over again, double the number of

times on the original, until the riff begins to sound like

Ta scratch on a record," 754 F. Supp. 1150, 1155

(M.D. Tenn. 1991).

B. The Sixth Circuit Decision

Despite the great distance in theme and musical

approach between the two songs and the different

audiences to which they were directed, the Sixth Circuit

decided that there could be no finding of fair use. The

Court came to its erroneous result because of its

inflexible and crabbed analysis of the four fair use

factors found in Section 107 of the Copyright Law.

It began its analysis by holding that because the

2-Live Crew recording was "included on a commercial

distributed album," its use was presumptively unfair, 97

F.2d at 1436. "We find that the admittedly commercial

nature of the derivative work . . . requires the conclusion

that the factor weighs against a finding of fair use."

id. at 1437,

It then held that the second factor -- the nature of

the copyrighted work -- also weighed against a finding of

fair use since Respondent’s song was a creative and

artistic work, and less scope is afforded to quotation

from such works. id., at 1437.

With respect to the third factor, the amount and

substantiality of the use, the Sixth Circuit concluded that

a substantial amount of original material was taken: ". . .

the copying was qualitatively substantial." Furthermore

the "heart of the original" work was taken and was made

into the “heart of a new work." id. at 1438. This

amounted to a "purloin{ing of] a substantial portion of

the original,” id.

Finally, the Sixth Circuit concluded that the final

factor -- the effect upon the potential market -- also

tipped in favor of the Respondent. This Court has

determined this factor to be the most important of the

elements described in Section 107. The Court below

held that the commercial nature of the use precluded

any finding of fair use. ".. . the use of the copyrighted

work is wholly commercial, so that we presume that a

likelihood of future harm to Acuff-Rose exists." 972 F.2d

at 1438.

Cc. The Flaws In the Sixth Circuit Decision

The inadequacies of the Sixth Circuit’s decision

can be shown by applying the court’s analysis to some

other famous parodies in English literature. Everyone

6

recognizes and admires the famous nonsense lyrics in

Lewis Carroll’s Alice in Wonderland. But to the

audiences of the time, the lyrics were even more pointed

and telling since they were obvious parodies of the

sentimental and cloying Victorian verse of the late

Nineteenth Century -- moralizing ms, "written for the

edification of the young." For example, Robert

Southey wrote a melodramatic poem called "The Old

Man’s Comforts and How He Gained Them." The first

two stanzas read as follows:

"You are old, Father William," the young

man cried;

"The few locks which are left you are gray;

You are hale, Father Williams - a hearty old

man:

Now tell me the reason, I pray."

"In the days of youth," Father William

replied,

"IT remembered that youth would fly fast,

= abused not any health and my vigor at

rst,

That I never might need them at last."

Lewis Carroll used the lyrics as a basis to write his

famous "Father William" poem:

You are old, Father William, the young

man said,

"And your hair has become very white;

And yet you incessantly stand on your

head-

Do you think, at your age, it is right?”

2 See Dwight MacDonald’s anthology, "Parodies:

An oo from Chaucer to Beerbohm -- And After’

(1985) at 278. The lyrics that follow are found in that

collection at 279-282.

"In my youth," Father William replied to

his son,

"I feared it might injure the brain;

But now that I’m perfectly sure I have

none,

Why, I do it again and again."

ee Dr. Isaac Watts wrote a poem, "Against

Idleness and Mischief" as a moral lesson for youth:

How doth the little busy bee

Improve each shining hour,

And gather honey all the day

From every opening flower!

How skillfully she builds her cell!

How neat she spreads the wax!

And labors hard to store it well

With the sweet food she makes.

In works of labor or of skill,

I would be busy too;

For Satan finds some mischief still

For idle hands to do....

Lewis Carroll’s version is as follows:

How doth the little crocodile

Improve his shining tail,

And pour the waters of the Nile

On every golden scale!

How cheerfully he seems to grin,

How neatly spreads his claws,

And welcomes little fishes in

With gently smiling jaws!

Another well-known Victorian poem was David Bates’

"Speak Gently:"

Speak Gently; it is better far

To rule by love than “yee

Speak gently; let no harsh word mar

The good we may do here.

Speak gently to the little child;

Its love be sure to gain;

Teach it in accents soft and mild;

It may no long remain.

Lewis Carroll sent a different message:

Speak roughly to your little boy,

And beat him when he sneezes;

He only does it to annoy,

Because he knows it teases.

I speak severely to my boy,

I beat him when he sneezes;

For he can thoroughly enjoy

The pepper when he pleases!

If Robert Southey, Dr. Isaac Watts and David

Gates were current authors and Alice in Wonderland had

been written today, there is little doubt that under the

Sixth Circuit analysis, Lewis Carroll would be guilty of

copyright infringement. There is no question but that

Lewis Carroll wrote Alice in Wonderland for commercial

gain -- he hoped to make money from the book. The

poems written by Messrs. Southey, Watts and Gates

were creative, artistic works and thus subject to very

limited appropriation by others. Substantial portions of

the earlier works were unquestionably "taken" by

Carroll-- whole lines in the Southey and Watts poems

were copied and the meter and rhythm of each of the

other ms, as well as their basic structure, were also

used. Finally, since commercial use was made of this

material by Carroll (through publication and sale of his

books) and the authors involved could conceivably have

parodied their own works and made money from them,

a fourth fair use would also have weighed in their

avor.

Any method of analysis that would lead to the

conclusion that fair use would not apply to Lewis

Carroll’s creations leaves much to be desired.

The Sixth Circuit approach to the question of fair

use in parody cases is deficient in at least three respects:

(1) the Court in fact did not apply the four-part fair use

test, but applied a one-part test in which the commercial

use of the material dictated the result under each of the

factors; (2) even if the Court had applied the four-part

test, it did not take into account the fact that a parodist

must use considerable amount of copyrighted material

to "conjure up" or present the original in order to satirize

or burlesque it; a court cannot make literary judgments

about the exact minimum quantity that could be copied

to make the parodists’ point; (3) in parody cases, the

four-part test should be modified if not scraped

altogether and the court should focus primarily on the

issue of whether the parody is a substitute for the

original.

l. The Failure to Apply the Four-Part Test.

The initial error of the Court below was its

refusal to properly apply the four fair use factors of

Section 107. What the Court did was to apply a single

factor analysis -- it held that since the 2-Live Crew song

was commercially distributed, than that automatically

required a finding of infringement and precluded any

finding of fair use. The same element of alleged

commercial use dictated the result in the application of

all fair use factors.

Thus, according to the Sixth Circuit, the

commercial nature of the song required a finding that

(1) the use of the song was improper; (2) the taking of

the copyrighted song by a commercial user afforded less

scope for copying; (3) the amount taken was substantial

given the commercial nature of the use; (4) the effect

upon the market was considerable, since defendant’s use

was "commercial."

10

That is not what Congress decreed in Section 107

or what this Court held in the Harper & Row case. In

Section 107, Congress noted that in determining whether

a particular use was fair, courts should consider the

“purpose and character of the use, including whether

such use was of a commercial nature," indicating that it

was one of a number of factors to weigh.

Furthermore, in its recent amendment to Section

107, Congress rejected any single factor analysis in

determining fair use. Congress amended the law in 1992

to insure that all four factors be separately analyzed. It

added the following sentence to the law: "The fact that a

work is unpublished shall not itself bar a finding of fair

use if such finding is based upon consideration of all the

factors." P.L. 102-192, 106 Stat. 3145 (October 24, 1992).

The law was passed in reaction to some decisions of the

Second Circuit that seemed to overemphasize the

unpublished nature of the work as key to a finding of fair

use. See Salinger v. Random House, 811 F.2d 90 (2d

Cir.), cert. denied, 484 U.S. 890 (9187) and New Era

Publications, ApS. v. Henry Holt and Company, 873 F.2d

576 (2d Cir. 1989) cert. denied, 493 U.S. 1094 (1990).

This Court in Harper & Row noted that the

commercial use was a separate "factor that tends to

weigh against a finding of fair use," 471 U.S. at 562,

again indicating that it was not the sole determining

factor. The Sixth Circuit’s decision which placed such

great and critical emphasis on the commercial nature of

the use misconstrued the law.

2. The Misapplication of the Four-Part Test.

To the extent the Sixth Circuit attempted to

apply the four-part test, it did so without a proper

recognition of how the courts should weigh the various

factors, particularly in a parody case. The Court noted

that the four part test has to be modified to some extent

since by definition there is a substantial "taking" of

copyrighted material when a parody is created. But the

11

Court gave this truism very grudging recognition. The

Court quoted from Walt Disney Prods. v. Air Pirates, 581

F.2d 751, 757 = Cir. 1978), cert. denied sub nom.,

O’Neill v. Walt Disney Prods., 439 U.S. 1132 (1979) to

establish the following test: "Whether the parodist has

appropriated a greater amount of the original work than

is necessary to ‘recall or conjure up’ the object of his

satire." (emphasis added).

Every court and commentator has noted that

enough of the original material must be "conjured up" to

be used by the parodist for his or her purposes. The

audience must be "set up" by certain expectations that

are triggered by viewing or listening to the some of the

original.

In the Lewis Carroll instances, the Victorian

audience had to be reminded of the lofty moral

sentiments of the flowery verses created by Southey and

others. Enough of the earlier material had to be used to

elicit those reactions and expectations. Once those

sentiments were generated by exposure to some of the

original, the parodist could pull his or her surprise and

dazzle and overwhelm the audience by the unexpected

turn taken in the new creation.

But it not up to the courts to determine exactly

how much of the original "is necessary to ‘recall or

conjure up’ the object of his satire," as the Sixth Circuit

noted. Courts are not equipped to determine the exact

amount of material that would create the critical

expectations, or to decide that a lesser amount would

have sufficed, or that the parody did not work. That is

the function of the author or com r. Courts cannot

make those sort of judgments. As Justice Holmes stated

in another context in Bleistein v. Donaldson

Lithographing Company, 188 U.S. 239, 251 (1903): "It

would be a dangerous undertaking for persons trained

only to the law to constitute themselves final judges of

the worth of pictorial illustrations outside of the

narrowest and most obvious limits.". See also Esquire,

Inc. v. Ringer, 591 F.2d 796, 805 (D.C. Cir. 1978):

12

"Neither the Constitution nor the Copyright Act

authorizes the . . . federal judiciary to serve as arbiters of

national taste."

; Judge Pierre Leval has made the same comment

with respect to parody, see Yankee Publishing Inc. v.

News America Publishing, Inc., 809 F. Supp. 267, 281

(S.D.N.Y. 1992). In holding that a parody cover of the

"Farmer’s Almanac" was protected the First

Amendment, he commented:

It is one thing to reject a First Amendment claim

because the court disbelieves the claim that a

communicative message was intended. It is quite

another to reject a First Amendment claim

because the court gives low marks to the success

of the literary device. Courts are ill-equipped to

pass literary judgments.

That is precisely what the Sixth Circuit did here.

In rejecting the claim of fair use as parody, the Court

noted: "Failing a direct comment on the original, there

can be no parody," 972 F.2d at 1436, n. 8. By deciding

that more than "necessary" amounts of the original

material was taken and that the parody did not work

because there was no comment on the original, the

Court misapplied its role and came to an erroneous

conclusion as to the correct legal rule to be applied in a

parody-fair use situation.

3. A New Parody Test.

The above analysis leads to the following

conclusion: the four factor fair use test cannot be

applied in the same way or perhaps should not be

applied at all in a parody situation. The first fair use

factor contemplates that a second user would use earlier

material in a critical manner, for educational, research

Or news-reporting or on a different level of use. But in

parody, the original material must be close to the second

use or the expectations on which the parodist depends

cannot be created.

13

With respect to the second factor, creative

material is almost always used by a parodist since

distinctive elements of style and theme must be played

with, copied and built-upon.

With respect to the third factor, substantiality of

use, by definition, substantial parts must be used in a

parody.

In short, if the fair use factors are applied in their

normal manner, a parodist would find it difficult to

succeed in any case, without considerable modification

and distortion of the factors by the courts.

The solution may lie in focusing on the fourth

factor, which this Court has already determined to be

the most important. Unless the parodist uses original

material in a manner that acts as a direct substitute for

the first creation, there should be no finding of

infringement. The test would require a showing that

customers were diverted from buying or using the

original, not because the ry illuminated the

weaknesses or shallowness of the first creation, but

because the second work served the same purposes and

answered the same need as the original for the same

type of audience.

That test was not evenly remotely met here. The

district court properly determined that the basic purpose

of parody was met and that the use should be allowed.

‘That finding should have been affirmed.

14

CONCLUSION

For the reasons stated above, the decision below

should be reversed.

fia, submitted,

Leon Friedman

148 East 78th Street

New York, N.Y. 10021

(212) 737-0400

Attorney for PEN

American Center,

Amicus Curiae

15