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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0382%3A10

## Record

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

## Text

ee (6) ken cour
No. 92-1292 FILED

= as

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0382%3A10. Public record. Not legal advice.