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

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No. satas2\) en FIL sy i

IN THE

Supreme Court of the Hnited

OCTOBER TERM, 1992

—-

LUTHER R. CAMPBELL, et ai.,

Petitioners,

ACUFF-ROSE MUSIC, INC.,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF AMICUS CURIAE OF

THE AMERICAN CIVIL LIBERTIES UNION

IN SUPPORT OF PETITIONERS

Steven F. Reich

(Counsel of Record)

Thomas A. Robertson

Leecia R. Eve

Covington & Burling

1201 Pennsylvania Avenue, N.W.

Washington, D.C. 20004

(202) 662-6000

Steven R. Shapiro

Marjorie Heins

John A. Powell

American Civil Liberties Union

Foundation

132 West 43 Street

New York, New York 10036

(212) 944-9800

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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ................. il

INTEREST OF AMICUS ................... l

SUMMARY OF ARGUMENT ............... l

Sobek od N46 dbenenoccecee: 2

I. FAIR USE IS A MEANS OF FOS-

TERING CREATIVITY AND INNO-

VATIVE EXPRESSION .............. 2°

Il. THE FAIR USE DOCTRINE PRO-

VIDES BROAD PROTECTION FOR

PARODY, WHICH HAS PLAYED AN

IMPORTANT ROLE IN THE DEVEL-

OPMENT OF POLITICS AND ART ..... 6

A. Parody In Politics ................ 7

B. Parody In The Literary Arts ........ 11

C. Parody In The Visual Arts.......... 14

D. Parody In The Musical Arts.......... 17

Ill. THE COURT SHOULD HOLD THAT

COMMERCIAL PARODIES PRE-

SUMPTIVELY DO NOT THREATEN

THE POTENTIAL MARKET FOR AN

ORIGINAL WORK, AND THAT

SUCH USES OF COPYRIGHTED

MATERIAL PRESUMPTIVELY ARE

DR GkPRG AGEs bwaedbsaebecececse 20

PME AIBI octet cece ccccccceccs 26

TABLE OF AUTHORITIES

Cases

Benny v. Loew’s Inc.,

239 F.2d 532 (9th Cir. 1956)

aff'd by an equally divided Court,

356 U.S. 43 (19S5B) ..eccsccseeu ue eee 20

Berlin v. E.C. Pub., Inc.,

329 F.2d 541 (2d Cir.),

cert. denied, 379 U.S. 822 (1964) ......... 20, 21, 24

Bose Corp. v. Consumers Union of

United States, Inc.,

466 U.S. 485 (1984) .. ees cceenes une eee 4

Elsmere Music, Inc. v. NBC Co.,

482 F. Supp. 741 (S.D.N.Y.),

aff'd, 623 F.2d 252 (2d Cir. 1980) ............ 20, 21

Fisher v. Dees,

794 F.2d 432 (9th Cir. 1986) ....... 20, 21, 22, 23, 24

Harper & Row, Publishers, Inc. v.

Nation Enterprises,

471 U.S. 2 (19G5) «sc cceveuewee 3, 4, 6, 22, 23, 24

Hustler Magazine, Inc. v. Falwell,

485 U.S. 46 (1968) ...cesnceu eeu 4, 7, 20, 25

Hustler Magazine, Inc. v. Moral

Majority, Inc.,

796 F.2d 1148 (Sth Cie. 190BD 1... ccuueneeeneas 20

New York Times v. Sullivan,

316 US. 254 (1960) .kseceeeeeeneneeeee 4, 24

Simon & Schuster, Inc. v. New York

Crime Victims Bd.,

$02 U.S... 183 SEA Bae Gee ee a weeekhenes ses 24

Page

Sony Corp. of America v. Universal

City Studios, Inc.,

464 U.S. 417 (1984) ............., 3, 4, 5, 22, 23, 25

Walt Disney Prods. v. The Air Pirates,

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

cert. denied, 439 U.S. 1132 (1979) .... 2.0.0... 20

Warmer Bros., Inc. v. ABC, Inc.,

CO 20

Statutes and Regulations

UME GOS b eek 6c cc-cccccccccccccs ae

PEM ERED Ge nccsccciccccccccccee 2

TOURER EGSb ocd ccccccccccccec passim

CPPCC DGG es dancceccecccceccce 3

gee cc cececccccccce 3

TS Ons cc ccccccccccccce 3

PME EUE Eu SG be eccccccvcccccccces 3

Legislative History

H.R. Rep. No. 1476, 94th Cong.,

2d Sess., reprinted in 1976 U.S.

Cope Conc. & Apmin. News 5659 ......... 4, 5, 6, 23

S. Rep. No. 473,

94th Cong., Ist Sess. (1975) ................. 6, 25

Other Authorities

Austern, Linda Phyllis,

“Musical Parody in the

Jacobean City Comedy,” in

66 Music & Lerrers

(Edward Olleson et al., eds., Oct. 1985) ....... 19, 20

Austin, William, "Bartok’s

Concerto for Orchestra," in

18 The Music Review 21

oe 8. eae eee 18

Baguley, David, "Parody and the

Realist Novel,”

am Ue. CUNED OG. SS CORED gw cc ccccccccccesses 11

Ball, Horace G.,

Law or Copyricur AND LITERARY

oe cana 3, 4

Barber, "“Appropriation/Expropriation:

Convention or Intervention?,"

ee Oe 14

Beerbohm, Max,

A Cnrisrmas Gartanp (1912) 2.2... ee. 11, 13

Carroll, Lewis,

Auice In Wonper.anp (1838) ..............000.. u

Cross, Wilbur L.,

Tue History or Henry Fievpine (1918)... 2... 2... 11

Danson, Lawrence,

Max Beersoum AND THE Act

ee a os ae pea aean 14

DaVinci, Leonardo,

po 16

Deutsch, Sarah, "Fair Use in Copyright

Law and the NonProfit Organization:

A Proposal for Reform,”

34 Am.U.L.Rev. 1327, 1328 (1985) .............. 5

Dratler, Jay, Jr., "Distilling the Witches’

Brew of Fair Use in Copyright Law,"

43 U. Miami L.Rev. 233 (1988) ............. 24, 25

Duchamp, Marcel,

g a 16

Duchamp, Marcel,

"L.H.O.0.Q. Shaved" (1965) .................. 16

Faik, Robert P., ed.,

AMERICAN LiTERATURE IN Paropy (1955) ........... 1]

Felstiner, John,

"Max Beerbohm and the Wings

of Henry James," in

Tue Surprise or Excettencr

(T.G. Riewald ed. 1974) .................. 11, 13

Fielding, Henry,

SHAMELA (1741) ...............c cc eeee 11, 12, 13

Goetsch, Charles C., "Parody as

Free Speech -- The Replacement

of the Fair Use Doctrine by

First Amendment Protection,"

3 W. New Eng.L.Rev. 39 (1980) ................ 7

Granger, Bruce,

PourncaL SATIRE IN THE AMERICAN

Revoiution, 1763-1783 (1960) .............. 7, 8,9

Grout, Donald J., "Seventeenth

Century Parodies of French

Opera -- Part I,”

27 The Musical Quarterly 211 (1941) ............ 17

Hutcheon, Linda,

A Tueory of Parody (1985) ........ 11, 14,:15, 16, 17

Janson, H.W.,

History or Art (3d ed. 1986) .............. 14, 16

Johnson, Maurice,

Fiecpinc’s Art or Ficrion (1961) ................ 13

Kitchin, George, ed.,

A Survey or BuRLESQUE AND PARODY

Pn hese ek webs 660 06 6000060656 0% 11

Leval, Pierre N., "Toward a Fair Use

Standard,” 103 Harv.L.Rev. 1105 (1990) ......... 5, 6

Lipman, Jean, and Marshall, Richard,

Se A ET PUED occ cccccccccess 14, 15, 16, 17

Manet, Edouard,

EE Se ee 14, 15

Melville, Nimmer, B., and

Nimmer, David,

NimMeR ON CopyriGut (1992) ............... 21, 22

Note, "The Parody Defense To Copyright

Infringement: Productive Fair Use

After Betamax,”

oS 7, 21

Paropies Or Tue Works Or Encousn

& AMERICAN AUTHORS

es Lo ibe edeeeeenees ees 7

Paulson, Ronald,

"The Anti-Romanticist,” in

Mopern Crrmcat Views: Henry Fievpinc

ns cee ee eee eee een eeee 11

Pear, Robert, "At State, The Acid

of Distrust Corrodes,”

EO ED <b cb bevecceccccecsnes 10

Ramos, Mel,

"Manet’s Olympia” (1974) ................. 15, 16

Rich, Alan, "The Bach Whose Works

Have Only Humorous Notes,"

20 Smithsonian 84 (Feb. 1990) .............. 18, 19

Richardson, Samuel,

PAMELA: oR, Virtue Rewarpep (1740) ......... 11, 12

Rivers, Larry,

"I Like Olympia in Blackface" (1970) ............ 15

SAMUEL RICHARDSON, PAMPLA: OR,

VirTUE REWARDED

ea a as te a a 12

Stackpole, J. Lewis,

Rosiz In SQuANDERLAND (1936) ............... 9, 10

Strickland, Carol,

Tue Annotated Mona Lisa (1992) ........... 14, 15

Tilmouth, Michael,

"Parody (ii),” in

THe New Grove Dicrionary

oF Music AND Musicians

(Stanley Sadie, ed., 1980) ................. 17, 18

Titian,

"Venus D’Urbino” (1538) .................. 14, 15

U.S. Register of Copyrights,

Report or THE Recister or CopyriGuts

ON THE GENERAL Revision or Tur U.S.

Copyricut Law (July 1961) ................04. 6

Warhol, Andy,

"Thirty Are Better Than One" (1963) ........... 17

Williams, Murial Brittain,

MARRIAGE: Fie_piInG’s Mirror

ie eee o ie coos ee eesees 13

Yen, Alfred C., "When Authors Won’t

Sell: Parody, Fair Use, And

Efficiency In Copyright Law,"

Se ES DUP OUUED cd cb cccccvecocesees 22

vii

ian aaa Le

INTEREST OF AMICUS '

The American Civil Liberties Union (ACLU) is a

nationwide, nonprofit, nonpartisan organization with

nearly 300,000 members dedicated to the principles of

liberty and equality embodied in the Constitution. Since

its founding in 1920, the ACLU has been a vigorous ad-

vocate of free speech rights and has supported an inter-

pretation of the copyright laws that is consistent with

those rights. In furtherance of its principles, the ACLU

has appeared before this Court in numerous free speech

cases, including the leading copyright case of Harper and

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

(1985). In addition, the ACLU has recently established

an Arts Censorship Project specifically to address ques-

tions of artistic freedom, including social and political

commentary and parody.

Accordingly, the issues presented by this case involve

matters of direct concern to the ACLU. We therefore

submit this brief amicus curiae to assist the Court in its

deliberations.

SUMMARY OF ARGUMENT

Because the question for review as framed by the

Court is whether petitioners’ commercial parody is a fair

use under 17 U.S.C. §107, this case does not require the

Court to consider how parody should be defined for pur-

poses of the Copyright Act or whether petitioners’ work

falls within that definition. Rather, the issue for the

Court is the proper application of § 107.

The Copyright Act of 1976, 17 U.S.C. §§101 ef seq.,

grants copyright owners a broad range of rights in their

original works, but also limits those rights in a number

of important ways. One of the most significant limita-

' Letters of consent to the filing of this bricf have been lodged with

the Clerk of the Court pursuant to Rule 37.3.

tions on a copyright owner’s rights is fair use, codified at

17 U.S.C. §107, which exempts from the Act’s restric-

tions uses of copyrighted material for purposes such as

criticism, comment, news reporting, teaching, scholarship

and research. Fair use promotes the advancement of the

arts and sciences by giving persons other than the copy-

right owner the reasonable right to use copyrighted ma-

terial. Whether a particular use of copyrighted material

is a fair one is to be decided on a case-by-case basis.

As the text and legislative history of §107 make

clear, Congress intended works of parody to be protected

as fair uses. Throughout history, parody has played an

important role in the development of politics and art,

and that role has been recognized in court decisions that

broadly have protected such works under the fair use

doctrine. The decision of the Sixth Circuit in this case,

which threatens the traditional protection afforded paro-

dy, results from an overly literal application of this

Court’s only two fair use decisions since the 1976 codifi-

cation of the principle. To assure that parody receives

the protection it requires to flourish, the Court should

hold that a commercial work of parody presumptively

does not threaten the potential market for an original

work, and presumptively is a fair use of the copyrighted

material.

ARGUMENT

I. FAIR USE IS A MEANS OF FOSTERING CREA-

TIVITY AND INNOVATIVE EXPRESSION

The Copyright Act of 1976, 17 U.S.C. §§101 ef seq.,

represented Congress’ first overhaul of the copyright

laws since 1909. While the 1976 Act grants copyright

owners a broad range of rights in their original works,

including control over derivative works based on the

original, 17 U.S.C. §§102, 103, it also limits those rights

by excluding from the owners’ control certain socially

beneficial uses of their material, see, eg, id. at §§107,

108, or by making the works subject to compulsory li-

censes. See, e.g., id. at §115.’ The most obvious limita-

tion on a copyright owner’s rights is the limited term for

which copyright protection is granted. Jd. at §§302-04.

An equally important limitation is contained in §102,

which provides that ideas and concepts themselves can-

not be copyrighted; rather, only the manner in which

ideas and concepts are expressed qualify for such protec-

tion. Jd. at §102. These limitations guarantee the public

access to the fundamental building blocks of creativity,

and give recognition to the settled notion that "[t]he for-

tunes of the law of copyright have always been closely

connected with freedom of expression." Sony Corp. of

America v. Universal City Studios, Inc., 464 U.S. 417, 430

n.12 (1984).

Another significant limitation on a copyright holder’s

rights involves the fair use of his or ner copyrighted ma-

terial. Fair use is a “privilege in others than the owner

of the copyright to use the copyrighted material in a rea-

sonable manner without [the copyright owner’s] con-

sent." Harper & Row, Publishers, Inc. v. Nation Enter-

prises, 471 U.S. 539, 549 (1985)(quoting Horace G. Ball,

Law or Copyricur AND LirerRaryY Property 260 (1944)).

* Section 115 provides, in pertinent part, that:

[a] compulsory license includes the privilege of making a

musical arrangement of the work to the extent necessary to

conform it to the style or manner of interpretation of the

performance involved, but the arrangement shall not change

the basic melody or fundamental character of the work ... .

17 U.S.C. §115(a)(2)(emphasis added). Thus, while artists who wish

to re-record an existing copyrighted work can obtain a compulsory li-

cense, they can do so only if their re-recording leaves intact the “basic

melody or fundamental character of the work.” Jd. A compulsory li-

cense was not available to the petitioners in this case because their

parody altered the fundamental character of Roy Orbison’s and Wil-

liam Dees’ original work.

The doctrine is "one of the most important and well-

established limitations on the exclusive right of copyright

owners," H.R. Rep. No. 1476, 94th Cong., 2d Sess. 65

(1976), reprinted in 1976 U.S. Cope Conc. & ApmMIN.

News 5659, 5678)(hereinafter "House Report"), and is "a

necessary incident of the constitutional policy of promot-

ing the progress of science and the useful arts, since a

prohibition of such use would inhibit subsequent writers

from attempting to improve upon prior works and thus

... frustrate the very ends sought to be attained.” Har-

per & Row, 471 U.S. at 549 (quoting Ball, supra p.3, at

260).

By promoting the broad dissemination of creative

works, the fair use doctrine helps assure that debate on

political and artistic matters is "uninhibited, robust, and

wide-open ...." New York Times v. Sullivan, 376 U.S.

254, 270 (1964). Discourse on these subjects is “essen-

tial to the common quest for truth and the vitality of so-

ciety as a whole,” and the Court has been "particularly

vigilant to ensure that individual expressions” on these is-

sues “remain free from governmentally imposed sanc-

tions." Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 51

(1988)(quoting Bose Corp. v. Consumers Union of United

States, Inc., 466 U.S. 485, 504 (1984)). To be sure, fair

use "creates tensions between the Copyright Act’s goal of

protecting an author’s works and first amendment princi-

ples of ensuring the unimpeded flow of information

...." Sarah Deutsch, "Fair Use in Copyright Law and

the NonProfit Organization: A Proposal for Reform," 34

Am.U.L.Rev. 1327, 1328 (1985). The doctrine therefore

calls for a careful balancing of "the interests of authors

and inventors in the control and exploitation of their

writings and discoveries on the one hand, and society’s

competing interest in the free flow of ideas, information,

and commerce on the other... ." Sony, 464 US. at 429.

Properly considered, fair use is not an “occasionally tol-

erated departure from the grand conception of the copy-

right monopoly ... [but rather] a necessary part of the

overall design." Pierre N. Leval, "Toward a Fair Use

Standard,” 103 Harv.L.Rev. 1105, 1110 (1990).

Prior to its codification as part of the Copyright Act,

fair use existed only as a common law principle. House

Report at 65. Codification of the doctrine in §107 of

the Act’ was intended to restate prior law and not

"change, narrow, or enlarge it in any way." House Re-

port at 66. Nevertheless, Congress in §107 "identifie[d]

[the] various factors that enable a court to apply an

‘equitable rule of reason’ analysis to particular claims of

infringement." Sony, 464 U.S. at 448 (footnote omitted).

Congress singled out "criticism, comment, news report-

ing, teaching . . . scholarship, or research" as the kinds of

fair uses of copyrighted material that should be encour-

aged. 17 U.S.C. §107.

* Section 107 provides:

[njotwithstanding the provisions of sections 106 and 106A,

the fair use of a copyrighted work, including such use by re-

production in copies or phonorecords or by any other

means specified by that section, for purposes such as criti-

cism, comment, news reporting, teaching (including multiple

copies for classroom use), scholarship, or research, is not an

infringement of copyright. In determining whether the use

made of a work in any particular case is a fair use the fac-

tors to be considered shall inciude --

(1) the purpose and character of the use, includ-

ing whether such use is of a commercial na-

ture or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion

used in relation to the copyrighted work as a

whole; and

(4) the effect of the use upon the potential mar-

ket for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a

finding of fair use if such finding is made upon considera-

tion of all the above factors. 17 U.S.C. § 107 (Supp. 1993).

The Court has observed that §107 requires "a case-

by-case determination whether a particular use is fair,"

Harper & Row, 471 U.S. at 549, and that inquiry need

not be limited to consideration of the four factors set

forth in the statute. "The factors do not represent a

score card that promises victory to the winner of the ma-

jority. Rather, they direct courts to examine the issue

from every pertinent corner and to ask in each case

whether, and how powerfully, a finding of fair use would

serve or disserve the objectives of the copyright." Leval,

supra p.5, at 1110-11. Because parodies have been im-

portant in the development of politics and art, §107

should be applied in a manner that broadly protects

those works.

Il. THE FAIR USE DOCTRINE PROVIDES BROAD

PROTECTION FOR PARODY, WHICH HAS

PLAYED AN IMPORTANT ROLE IN THE DE-

VELOPMENT OF POLITICS AND ART

Congress intended §107 to provide broad protection

for parody as a form of fair use. That intent is reflected

in the text of the section, which, as noted earlier, explic-

itly provides that the use of copyrighted works "for pur-

poses such as criticism [or] comment" is a favored use.

Id. In addition, both the Senate and House reports pre-

pared in connection with passage of the 1976 copyright

law revisions list as an example of "the sort of activities

the courts might regard as fair use” the "use in a parody

of some of the content of the work parodied.” S. Rep.

No. 473, 94th Cong., Ist Sess. 61 (1975)(hereinafter "Sen-

ate Report"); House Report at 65. The Senate and

House reports mirrored the views expressed in a report

prepared by the Register of Copyrights which argued

that a statutory codification of the fair use doctrine

should be broad enough to include works of parody.

U.S. Register of Copyrights, Report or THE REGISTER OF

CopyRIGHTS ON THE GENERAL Revision OF THE U.S. Copy-

RIGHT Law 24 (July 1961).

The legislative history of §107 reflects the fact that

parody has been vital to the development of politics and

art. Charles C. Goetsch, "Parody as Free Speech -- The

Replacement of the Fair Use Doctrine by First Amend-

ment Protection," 3 W. New Eng.L.Rev. 39, 42 (1980).

"The reason for the universal appeal of parody is two-

fold: Its high potential as a form of entertainment and

its high potential as a vehicle for social and literary criti-

cism." Jd. at 41. Such works draw “our attention to the

defects of some authors, whose stilted language, and

grandiloquent phrases, have veiled their poverty of ideas,

their sham sentiment, and their mawkish affectations.”

Note, "The Parody Defense To Copyright Infringement:

Productive Fair Use After Betamax," 97 Harv.L.Rev.

1395 & n4 (1984)(quoting 1 Walter Hamilton,

Introduction to I Paropies Or THe Works Or EnNGuish &

AMERICAN AvuTuors I (W. Hamilton ed. 1884)).

To be sure, parodies may treat their subjects harshly

or with outright disdain or contempt. But the pointed

humor of such expressions is precisely what makes them

deserving of broad protection under the copyright laws.

Cf. Hustler, 485 U.S. at 54 ("[d]espite their sometimes

caustic nature ... graphic depictions and satirical car-

toons have played a prominent role in public and politi-

cal debate"). Society would be a far poorer place were

it not for the enduring works of parody that have

spurred the development of politics and art.

A. Parody In Politics

Parody has been used for centuries to mock and cri-

ticize political opponents, government policies, politi-

cians and the political process itself. For example, in

late 1776, the New York press printed a parody of the

Declaration of Independence, which had been signed

only months earlier. Bruce Granger, Potrmcat SATIRE IN

THE AMERICAN Revo.uTion, 1763-1783, at 128 (1960). The

parody opened with the actual preamble to the Declara-

tion of Independence, but then substituted a list of al-

leged abuses by the Continental Congress for the list of

Royal abuses contained in the original. Like the origin-

al, the parody concludes with a declaration:

[w]je therefore . . . do renounce and disclaim

all allegience, duty, or submission to the

Congress, or to any government under them;

and declare that the united Colonies, or

States so called, neither are, nor of right

ought to be, independent of the Crown of

Great-Britain ... and in the support of this

Declaration ... [w]e mutually pledge to

each other, and to the Crown and Empire of

Great Britain, our lives, our fortunes, and

our sacred honor.

Id. at 129 (quotation and citation omitted).

Not all parody created during the founding of the

Nation focused on matters as exalted as liberty and inde-

pendence. Professor Granger notes that near the end of

the Revolutionary War, the new Congress’ inability regu-

larly to pay its soldiers caused a rise in desertions and

short-term enlistments. Jd. at 201. Congress’ financial

problems became particularly acute in 1780, prompting

the issuance of an emergency order stating that "the offi-

cers who shall continue in the service to the end of the

war, shall .. . be entitled to half pay during life, to com-

mence from the time of their reduction." /d. (quotation

and citation omitted). Congress’ action led to a parody

of the Lord’s Prayer:

Our Delegates in Congress Assembled, Re-

vered be your Characters, your power in-

creased, your will be done in the civil as it is

in the Military Line, Give us Month by

Month our monthly pay, Pay us our debts as

we wish to Satisfy our Creditors, And lead

us not into poverty but deliver us the evils

of desbandation, for yours is the right, the

power, and the Generous intention of re-

warding us with half pay throughout our

Lives Amen.

Id. (quotation and citations omitted).

In our century, President Franklin Roosevelt was the

target of one parodist’s acid humor in Rosir In Souan-

DERLAND, a 1936 work written "[w]ith apologies to Lewis

Carroll." J. Lewis Stackpole, Roste In SquanpeRLAND 2

(1936). The parody, subtitled Billions For Votes, parrots

the style of Lewis Carroll’s classic children’s work, ALicr

IN WonDERLAND (1838), and features, among others, the

characters of Rosie ("Franklin D. Roosevelt") and the

Dormouse ("The Taxpayer"). /d. The cover of the book

depicts President Roosevelt in Alice’s familiar hoop

skirt, with Alice’s long wavy hair, pulling a white rabbit

out of a hat. /d. at 1. As Rosie In Squanderland begins:

Rosie was lying on a soft bank composed of

the fortune of bonds and stock certificates

which she had inherited from her ancestors,

thrifty people who had saved more than they

spent.

She was fast falling into a doze, dreaming of

all the ways she would like to spend other

people’s money... .

Id. at 3. In the story, Rosie, like Alice, encounters a

White Rabbit who leads her on a curious journey. At

one point, Rosie says to the White Rabbit:

You don’t know me... . The same rules

that apply to other people, don’t apply to

me. For instance, I can pull myself out of

debt by spending more and more money.

No one else has ever been able to do that.

But I can, because . . . it is not my money.

It belongs to the Dormice, and they are just

too damn dumb to understand what I am

doing to them.

Id. at 5 (quotation omitted). By the end of the parody,

the Dormouse begins to question Rosie’s view of the

world, leading the Hatter and March Hare to proclaim

in unison:

Twinkle, twinkle, little Rosie. How I won-

der what this cosey New Deal system would

become, If all Dormice weren’t dumb?

Id. at 19 (quotation omitted).

More recently, "the tensions between Foreign Service

officers and the inner circle surrounding [former] Secre-

tary of State James A. Baker 3d [were] vented in a wick-

ed parody of the State Department employee newslet-

ter." Robert Pear, "At State, The Acid of Distrust Cor-

rodes,” N.Y. Times, April 12, 1989, at Al6. The parody,

which was dated April 1, was “billed as a lighthearted

spoof in the spirit of April Fools’ Day." Jd However,

the parody revealed "a measure of distrust" that one ex-

pert said "reflects what a lot of people feel in [the State

Department] building.” /d. (quotation omitted).

In the style of the State Department newsletter, the

parody reported that "[t}he Baker team has let it be

known that it is very difficult to be a small island of

skilled bureaucrats in the middle of a sea of inept For-

eign Service officers." /d. (quotation omitted). Another

item reported that in "a major step toward showing trust

to the department’s career employees," the Secretary of

State had "introduced himself to his personal secretary

the other day." /d. (quotation omitted). The spoof,

which "[ljike all telling humor ... has a kernal of truth

in it[,]" was said to have hit the mark to such a great de-

gree that it left the Secretary of State “seething.” /d.

B. Parody In The Literary Arts

Parody in literature first appeared in ancient Greece

and since has been instrumental in the development of

Western literature. Not only is literary parody a unique

brand of literary criticism, it is also an important literary

genre and a rich and vibrant source of humor. Linda

Hutcheon, A Tueory of Parody 2, 29 (1985); George

Kitchin, ed., A Survey or BurLesque AND Paropy IN Enc-

uisH ix (1967). As a form of literary criticism parody is

unique. By exaggerating or distorting the qualities of an

original work, literary parody offers an inside look at the

weaknesses of an original text and thus "differs from

other kinds of literary criticism in that it breathes the

very spirit of the style or idea it seeks to criticize.”

Robert P. Falk, ed., American Lrrerature In Paropy 14

(1955). Parody “seize[s] upon sham and pretense in the

literary world and point[s] out the difference between

originality and flim-flam." /d.

In addition, many parodies are valuable works of lit-

erature wholly apart from the objects of their ridicule.

Henry Fielding’s SHameta (1741) and Max Beerbohm’s A

Curistmas GARLAND (1912) are often cited as parodies

that rival or exceed the objects of their derision. Ronald

Paulson, "The Anti-Romanticist,"” in Mopern CriricaL

Views: Henry Fievpinc 60-61 (H. Bloom ed. 1987); John

Felstiner, "Max Beerbohm and the Wings of Henry

James," in THe Surprise or Excettence 206-07 (T.G. Rie-

wald ed. 1974). Fielding’s SHameza is widely regarded as

“one of the most famous and effective parodies of Eng-

lish literature." David Baguley, "Parody and the Realist

Novel,” 55 U. Toronto Q. 94, 95 (1985).

Fielding’s work ridicules both the style and substance

of Samuel Richardson’s epistolary novel PAMELA: or,

Virtue Rewarpep (1740), which itself was widely ac-

claimed upon publication. Wilbur L. Cross, Tue History

or Henry Fietpinc 302 (1918). The appeal of Richard-

son’s novel was based on the character and morality of

Pamela, its narrator and heroine. Unlike many other lit-

erary characters of the period, Pamela, a young servant,

was bright and virtuous. Over the course of the novel,

she outwits the bumbling and numerous advances of a

Mr. B--, the well-to-do son of Pamela’s deceased mis-

tress. After repeatedly fleeing Mr. B--’s clutches and fi-

nally returning to her parents’ home with her virtue in-

tact, Pamela is asked to marry Mr. B--, and eventually

does so, thereby becoming a "lady." Richardson’s mes-

Sage is that propriety and chastity in women will be re-

warded, in this case through marriage to a wealthy man.

SHAMELA contains many of the same scenes as Pame-

LA, but the plot and narration are altered in order to rid-

icule Richardson’s suggestion that sexual virtue leads to

financial reward. Fielding’s Shamela still winds up mar-

rying the equivalent of Mr. B--, whom Fielding names

"Mr. Booby," but the two are married because Shamela’s

"innocence" is used in cunning fashion to lure Mr. Booby

to her. Fielding’s subtle humor is revealed by comparing

Shamela’s reaction to her suitor’s romantic advances to

that of Pamela. In Pamera, Richardson describes how

Mr. B-- “offered to take [Pamela] on his knee, with some

force," and "by force kissed [her] neck and lips.” SamueL

RICHARDSON, PAMELA: oR, VirTUE Rewarpep 25 (William

Sale ed. 1958). Horrified by Mr. B--’s behavior, Pamela

frees herself from his clutches and runs to safety. /d. at

26.

In describing the same encounter, Fielding’s heroine

writes in a letter that Mr. Booby “caught me in his arms,

and kissed me till he made my face all over fire ...

O! What precious fools men are! And so I flung from

him in a mighty rage, and pretended as how | would go

out at the door; but when I came to the end of the

room, I stood still, and my master cryed out ... come

hither ...." Henry Fielding, Joseph ANDREws AND SHAM-

eia 312 (Martin Battestin ed. 1961)(emphasis added).

As one scholar has observed, "[t]he key to the parody

here resides in Fielding’s words ‘pretended as how’; for

although Shamela makes a calculated show of indigna-

tion and does not want to leave the room, Pamela did

run from it in spite of her desire for Mr. B-- in mar-

riage." Maurice Johnson, Fievpinc’s Art or Ficnion 28

(1961). As the passages illustrate, "Fielding annihilates

Pamela’s morality by skillfully manipulating Richardson’s

own inventions.” Murial Brittain Williams, Marriace:

Fiecpinc’s Mirror or Morautry 50 (1973). In SHAMELa,

“characters, scenes, and even dialogue are often repro-

duced almost identically" from Richardson’s original

work. Jd. (emphasis added).

In this century, Max Beerbohm has shown that paro-

dy remains a vital genre. In his collection, A Curistmas

Gar.LANnD, Beerbohm pokes fun at the works of 17 au-

thors, from Rudyard Kipling to Joseph Conrad. Beer-

bohm, supra p.11, at vii (1926). Perhaps the most fa-

mous among the collection is "A Mote in the Distance,"

a send-up of the writings of Henry James. Felstiner,

supra p.11, at 206. In "A Mote," Beerbohm parodies

James by describing simple events in James’ intricate

narrative style. For example, in describing a character’s

wake from sleep, Beerbohm writes that,

[t]he consciousness of dubiety was, for our

friend, not, this morning, quite yet clean-cut

enough to outline the figures on what she

had called his "horizon," between which and

himself the twilight was indeed of a quality

somewhat intimidating.

Beerbohm, supra, at 3. By capturing the idiosyncratic as-

pects of James’ style -- “brokenly qualified sentences,"

“syntactical quibbles," “metaphors worried and rewor-

ried," Felstiner, supra p.11, at 206 -- Beerbohm’s story

becomes as much James’ work as his own. One authori-

ty on Beerbohm has written that "A Mote" is a “perfect

mimicry of [James’] style .... [T]he parody is like the

original because, in both, part of the reader’s pleasure

comes from discovering those inherently caricatural

touches where the style proclaims itself as Jamesian."

Lawrence Danson, Max BeerBouM AND THE Act oF Writ-

ING 150 (1989).

C. Parody In The Visual Arts

Parody has served as a particularly important devel-

opmental tool in the visual arts. Historically, artists have

learned their craft by copying the original works of rec-

ognized masters. As one art historian has noted, "[c]opy-

ing or quoting from earlier cultural artifacts were the

early approved methods of instruction for young visual

artists." Bruce Allistair Barber, "Appropriation/Expro-

priation: Convention or Intervention?," 33 Parachute 29,

30 (1983). For the visual artist, “copying ... is one

method . . . of learning, of acquiring new knewledge and

skills with which to gain control over one’s world.” /d.

Throughout history, as young artists have matured,

they often have progressed from literal copying of great

works to parodying them. Hutcheon, supra p.11, at 35.

By parodying masterpieces, artists allow for immediate

comparisons of their works with those of recognized au-

thorities on the subject. Admittedly, the viewer of a par-

ody feels "a certain jolt when [hje first recognize[s] the

ingredients of this visual pun" that has been created;

however, "[h]e also sense[s] that it was a stroke of genius

to put them together in this unique way." H.W. Janson,

History or Art 11 (3d ed. 1986).

One of the most beloved Modernist painters, Edou-

ard Manet, was a master of parody. His famed work,

"Olympia" (i863), pokes fun at Titian’s “Venus

D’Urbino" (1538) and other Renaissance portrayals of

female nudes. Manet’s “Olympia” copies the pose of

Titian’s "Venus": a reclining figure, head to the left, her

body propped up by pillows. Jean Lipman and Richard

Marshall, Arr apour Art 98 (1978). See also Carol

Strickland, THz ANNoTATED Mona Lisa 71, 101 (1992). In

Manet’s version, the reclining figure is being presented a

bouquet of flowers by a black maidservant. /d. How-

ever, in contrast to Titian, whose ethereal subject was

the goddess Venus, Manet not only depicts a human fig-

ure, but a prostitute with a bow tied around her neck

and a flower behind her ear. /d. at 101. Far from the

soft Renaissance ideal, Manet’s Olympia has been called

"a female gorilla" because of her muscular appearance.

Id. at 71. Manet’s choice of a human figure -- and

indeed a prostitute -- mocks Titian’s idealized selection

of a goddess. /d.

Interestingly, Manet’s work has itself been the sub-

ject of parodies by later artists. The two best known

parodies of "Olympia" were created by Larry Rivers and

Mel Ramos. Larry Rivers’ "I Like Olympia in Blackface"

(1970) contains two distinct images. The top half of the

construction depicts Manet’s "Olympia" while the bottom

half reverses the races of Manet’s original subjects, re-

sulting in a white maidservant waiting on a confident, re-

clining, black female. As two art historians have noted:

Larry Rivers’s painted construction doubled

Manet’s idea for another kind of social com-

ment, showing, like a transformed mirror

image, a new white servant for the now

black Olympia... .

Lipman and Marshall, supra p.14, at 99. See also Strick-

land, supra p.14, at 71. More recently, Mel Ramos crea-

ted "Manet’s Olympia" (1974), a work that copies many

elements of the Manet original: the pose of the reclin-

ing nude, the pillows, the bow around her neck and the

maidservant presenting the bouquet of flowers. How-

ever, in contrast to the original, Ramos’ Olympia is soft,

voluptuous and coquettish. Moreover, in contrast to the

imprecise, patchy colors used by the modernist Manet,

Ramos has applied a hard, glossy finish to his work that

makes his subject look like a Playboy centerfold.

Hutcheon, supra p.11, at 47. Professor Hutcheon has

written that,

through a second level of parody (of Playboy

pinups) the narcissism of modern woman [is

what] is satirized. Perhaps Ramos is also

suggesting, by the parodic juxtaposition, that

what we find erotic today may, indeed, not

have changed. He reworks Manet’s Olympia

. in much the same way [as Manet re-

worked his subject from Titian].

Id.; see also Lipman and Marshall, supra p.14, at 99.

During the twentieth century, parodies in the visual

arts have become even more bold. Both Marcel Du-

champ and Andy Warhol, for example, have borrowed

not only elements of the original works of others, but in

some instances the entire original work itself. Examples

of this brazen kind of parody are seen in both artists’ re-

makes of Leonardo DaVinci’s "Mona Lisa" (1506). The

original "Mona Lisa" is well known. The painting depicts

a serene female seated in three-quarters view, wearing a

brown dress. Leonardo’s subject has sleek, dark hair

parted down the center, and a complexly inward smile

that perhaps is her best-known feature. Duchamp’s 1915

parody of Leonardo’s work is an exact copy of the origi-

nal with two alterations. First, Duchamp appended a

large black moustache to the subject’s angelic face. Sec-

ond, he changed the title of the work to "L.H.0.0.Q."

which, when pronounced in French, makes a distinctly

“off-color pun." Janson, supra p.14, at 693; Lipman and

Marshall, supra p.14, at 57. But Duchamp’s fun at the

expense of Leonardo did not stop there. Duchamp con-

tinued his play on "Mona Lisa" in 1965 by signing an un-

altered reproduction of the Leonardo original and calling

it "L.H.0.0.Q. Shaved." Lipman and Marshall, supra

p.1S, at 57. Thus, in his original parody, Duchamp

negated the authority of the Leonardo masterpiece by

defiling it with graffiti. Next, Duchamp negated his ne-

gation by removing the offending material and simply re-

producing the original with a new title.

Finally, in classic pop-art fashion, Andy Warhol’s

1963 parody, titled "Thirty Are Better Than One," shows

thirty identical images of the Mona Lisa silk-screened

onto one canvas in checkerboard fashion, six across and

five down. Warhol’s point was unmistakable:

[t]he pop ironic commentary is clear in his

title -- Thirty Are Better Than One -- imply-

ing a satire of a consumer society that loves

quantity more than quality and therefore can

use a popular icon of highbrow art [repeated

thirty times] as a mass-produced product.

Hutcheon, supra p.11, at 47; see also Lipman and Mar-

shall, supra p.14, at 57.

D. Parody In The Musical Arts

Like writers and visual artists, musical composers

have used parody throughout the centuries as a form of

creative expression designed to deflate the authority of

existing compositions and musical standards. The oper-

atic genre, with its strict conventions and grand aspira-

tions, has provided much of the source material for mu-

sical parodists over the ages. Michael Tilmouth, "Parody

(ii)," in THe New Grove Dicnonary or Music AND Musi-

cians 239 (Stanley Sadie, ed., 1980). Hundreds of paro-

dies were written in the seventeenth and eighteenth cen-

turies of the enormously popular but pompous French

operas. The French operas’ “unrelieved solemnity ...

[t]heir high-flown sentiments, their pretentious diction,

all naturally stimulated the ribaldry of irreverent spirits.

Under such circumstances, parody was almost inevitable."

Grout, Donald J., "Seventeenth Century Parodies of

French Opera -- Part I," 27 The Musical Quarterly 211,

219 (1941).

Opera is not the only musical genre that has fallen

prey to the irreverent and critical voice of the musical

parodist. Masters of the classical era have also exposed

the absurdities of their craft. For example, "[e]ven the

great Mozart, sublime practitioner of the classical art,

got in his digs at some of the musical foibles of his own

time. His ... [composition] entitled ‘A Musical Joke’

mimics some of the cliches rampant among the lesser

composers of the 18th century, and does so with prac-

ticed drollery and even a touch of cruelty." Alan Rich,

"The Bach Whose Works Have Only Humorous Notes,"

20 Smithsonian 84 (Feb. 1990). Parody has been em-

ployed by such other classical masters as Wagner, Bartok

and Debussy. Tilmouth, supra p.17, at 240. For exam-

ple, in his popular "Concerto For Orchestra," Bartok in-

terrupts the "Intermezzo" section with a mocking quota-

tion of Shostakovich’s "Symphony No. 7" lasting nearly a

third of the section. As one musicologist has written of

the Bartok parody:

trumpets give a Bronx cheer; high strings

and woodwinds shriek derision ... wood-

winds trail off in giggles; trombones fart,

glissando. The whole wind band combines

trills with an um-pah bass to introduce ...

violins in a varied repetition of the Shosta-

kovich tune....

William Austin, "Bartok’s Concerto for Orchestra," in 18

The Music Review 21, 37 (G. Sharp ed. Feb. 1957).

Similarly, in "The Golliwog’s Cakewalk," "Debussy quotes

the opening motive of Wagner’s ‘Tristan’ [and ‘Isolde’],

thumbs his nose at it with a few staccato chords, and re-

harmonizes its top melody in a banal cadence." /d. at

39.

The tradition of parody in classical music, like that

in opera, derives from the fact that the "conventions of

classical music are weighed down with enough artificiali-

ties, stiff-backed formalities and just plain absurdities

that merely recounting them straight, or with the slight-

est shading of emphasis, can induce high hilarity." Rich,

supra p.18, at 84. Perhaps the foremost modern-day

practitioner of the classical parody is Peter Schickele,

whose compositions under the name "P.D.Q. Bach" spoof

"music’s most-venerated mannerisms." Jd. at 86. Schick-

ele’s "1712 Overture," for example, is "an observant take-

off" on Tchaikovsky’s much-loved "1812 Overture." /d. at

88. Tchaikovsky’s composition features a battle, com-

plete with cannons, between a lushly arranged Russian

folk melody and several other competing tunes, with the

first folk melody ultimately emerging triumphant over its

"enemies." P.D.Q. Bach’s parody replicates Tchaikov-

sky’s theme, but uses equally lush arrangements of such

familiar melodies as "Yankee Doodle" and "Pop! Goes

the Weasel" to play out an intricate musical battle

amidst the exploding balloons that replace Tchaikovsky’s

cannons. /d.

Musical parody has, of course, also flourished out-

side the operatic and classical realms. For example, a

popular form of musical parody in early seventeenth cen-

tury England was found in the "city comedy." The city

comedy arose in response to the emotional extravagance

of the Elizabethan theatre, for which William Shakes-

peare’s works set the standard. Linda Phyllis Austern,

"Musical Parody in the Jacobean City Comedy," in 66

Music & Lerrers 355 (Edward Olleson et al., eds., Oct.

1985). The city comedy eschewed "[k]ings, courts and

countryside" for the realistic settings and manner of

speech of contemporary seventeenth century London.

Id. A classic example of parody in the city comedy

comes from Act IV of Thomas Dekker’s and John Web-

ster’s 1605 work, "Northward Ho." /d. at 358. In their

work, Dekker and Webster borrow an innocent lover’s

ballad from the songbook of an Elizabethan songwriter

and transform it into a lewd "parody of fallen woman-

hood” sung by a “comical old bawd." /d. As one scholar

has written:

[a] simple alteration of the [original] text

renders it as irreverently obscene as the

singer herself, for the intense emotion and

frustrated passion of the original are trans-

formed into a hilariously unsentimental im-

age of the basest sort of physical love... .

Id. at 359."

il. THE COURT SHOULD HOLD THAT COMMER-

CIAL PARODIES PRESUMPTIVELY DO NOT

THREATEN THE POTENTIAL MARKET FOR AN

ORIGINAL WORK, AND THAT SUCH USES OF

COPYRIGHTED MATERIAL PRESUMPTIVELY

ARE FAIR

Courts have not hesitated broadly to protect works

of parody as fair uses and, in so doing, explicitly have

recognized parody’s role in the development of politics

and art. See, e.g., Hustler Magazine, Inc. v. Moral Majon-

ty, Inc., 796 F.2d 1148 (9th Cir. 1986);° Fisher v. Dees,

794 F.2d 432 (9th Cir. 1986); Warner Bros., Inc. v. ABC,

Inc., 720 F.2d 231 (2d Cir. 1983); Elsmere Music, Inc. v.

NBC Co., 482 F.Supp. 741 (S.D.N.Y.), aff'd, 623 F.2d 252

(2d Cir. 1980); Berlin v. E.C. Pub., Inc., 329 F.2d 541 (2d

Cir.), cert. denied, 379 U.S. 822 (1964). But see Benny v.

Loew’s Inc., 239 F.2d 532 (9th Cir. 1956)(parody not to

be treated differently from other kinds of infringements),

affd by an equally divided Court, 356 U.S. 43 (1958).

For example, in Berlin, 329 F.2d 541, Judge Kaufman,

writing for a panel that included then-Judge Marshall,

rejected composer Irving Berlin’s arguments that paro-

* The similarities to the work at issue in this case are unmistakable.

* The Hustler case involved the unauthorized copying of the same sa-

tirical cartoon at issue in this Court’s opinion in Hustler, 485 U.S. 46.

° Later, in Walt Disney Prods. v. The Air Pirates, 581 F.2d 751, 757 0.13

(%h Cir. 1978), cert. denied, 439 U.S. 1132 (1979), the Ninth Circuit

repudiated Benny, stating that “we necessarily disagree with [Benny’s|

dictum that a parody is treated no differently than any other taking.”

dies of his songs published by Mad Magazine infringed

the copyrights for the original material. Berlin contend-

ed, in particular, that Mad’s use was not a fair one be-

cause the Magazine had a commercial motive. /d. at

543. However, the court held that that argument failed

to recognize "parody and burlesque as independent

forms of creative effort possessing distinctive literary

qualities worthy of judicial protection in the public inter-

est." Id. The court concluded that "parody and satire

are deserving of substantial freedom -- both as entertain-

ment and as a form of social and literary criticism." Jd.

at 545 (emphasis in original). See also 3 Melville, B.

Nimmer and David Nimmer, Nimmer on CopyriGHt,

§13.0S5[C] at 13-102.25 -- 102.26 (1992)("[o]nly by the

recognition of a fair use defense is society likely to reap

the benefit of [parody]").

Likewise, in Elsmere, 623 F.2d 252, the district court

protected as a fair use a parody of the "I Love New

York" advertising jingle performed on the popular televi-

sion show "Saturday Night Live." The court held that

the parody, which focused on a mythical city called Sod-

om and was entitled "I Love Sodom," was a fair use be-

cause it was "clearly an attempt... to satirize the way in

which New York City has attempted to improve its

somewhat tarnished image through the use of a slick ad-

vertising campaign.” Jd. at 745. The Second Circuit af-

firmed the district court’s judgment upon the simple ob-

servation that "in today’s world of often unrelieved sol-

emnity, copyright law should be hospitable to the humor

of parody... ." 623 F.2d at 253.

Finally, in Fisher, 794 F.2d 432, the Ninth Circuit

held that a commercial parody of the 1950s classic song

"When Sunny Gets Blue” was a fair use. In its opinion,

the Ninth Circuit observed that parodies "‘play an impor-

tant role in social and literary criticism and thus merit

protection even though they may discourage or discredit

an original author.” Jd. at 437-38 (quoting Note, supra

p.7, at 1411). Of particular importance in this case, the

Ninth Circuit specifically rejected the copyright owner’s

contention that the defendant’s use of the original mate-

rial was not a fair one because he had asked for and

been refused permission for a license. /d. at 437. In-

deed, the court held that "[t]he parody defense to copy-

right infringement exists precisely to make possible a use

that generally cannot be bought.” Jd. See also Melville,

Nimmer and Nimmer, supra p.21, at §13.0S5[C] at 13-

102.26 ("satire, etc., of the work itself by its very nature

is unlikely to be the subject of a license from the author

of a serious work"); Alfred C. Yen, "When Authors

Won't Sell: Parody, Fair Use, And Efficiency In Copy-

right Law," 62 U.Colo.L.Rev. 79, 90 (1991)("[b]ecause

parodists seek to lampoon original works, they are un-

likely to secure permission from the copyright holder to

use the copyrighted material").

The Sixth Circuit’s decision in this case jeopardizes

the traditional protection afforded parody by applying in

overly literal fashion language in Sony and Harper &

Row concerning the effect of a derivative work’s com-

mercial nature on the §107 analysis. Acuff-Rose Music,

Inc. v. Campbell, 972 F.2d 1429, 1436, 1438 (6th Cir.

1992). In Sony, the Court considered whether the mak-

ers of video tape recorders ("WTRs") were contributory

infringers of the copyrights held by television production

companies. 464 U.S. at 420. Sony, a maker of VTRs,

contended that home videotaping was a noncommercial

fair use under §107, and the Court agreed. 464 U.S. at

454-55.

In the course of its Sony opinion, however, the Court

suggested that "every commercial use of copyrighted ma-

terial is presumptively an unfair exploitation of the mo-

nopoly privilege that belongs to the owner of the copy-

right...." Jd. at 451.’ The Court also stated that harm

to the potential market for the original work may be

presumed if the derivative work is commercial in nature.

Id. Thus, under Sony, if the derivative work at issue is

commercial in nature, factors one and four of the §107

test presumptively will weigh in favor of the copyright

owner and against the person seeking to use the copy-

righted material, at least where verbatim copying is in-

volved.

Those principles were reaffirmed in Harper & Row.

There, the Court considered whether The Nation Maga-

zine infringed the copyright held by Harper & Row for

the then-unpublished memoirs of former President Ford.

471 U.S. at 542. The Nation obtained a copy of the un-

published manuscript and published verbatim excerpts of

the work prior to its publication by Harper & Row. /d.

at 543. The Court reversed the Second Circuit’s finding

that The Nation’s use of the manuscript was a fair one

and, in so doing, reaffirmed the standards applied in

Sony. 471 U.S. at 561-69.

When works of parody are at issue, the Sony pre-

sumptions applicable to the first and fourth § 107 factors,

see n.3, supra, fail to advance the policy underlying the

called "the single most important element of fair use,"

seeks to determine whether a derivative work "materially

impair[s]" the potential market for the original material.

Harper & Row, 471 U.S. at 566-67 (quotation omitted).

When applying the test to a parody, the "economic effect

of ... the parody’s critical impact must be excluded."

Fisher, 794 F.2d at 437. Such an exclusion is required

’ The fact that a derivative work is commercial in nature, of course, is

not dispositive of the fair use inquiry. 464 U.S. at 449. The Sony pre-

sumption is merely “an express recognition that ... the commercial

or non-profit character of an activity, while not conclusive with respect

to fair use, can and should be weighed along with other factors in fair

use decisions.” /d. at 449 n.32 (quoting House Report at 66).

because the “economic effect . . . with which we are con-

cerned is not its potential to destroy or diminish the

market for the original -- any bad review can have that

effect -- but rather whether it fulfills the demand for the

original. Jd. at 438 (emphasis in original). Thus, the

pertinent question is whether the parody usurps, and

thereby fulfills, the demand for the original. Jay Dratler,

Jr., "Distilling the Witches’ Brew of Fair Use in Copy-

right Law," 43 U. Miami L.Rev. 233, 331 (1988).

As we have seen, the raison d'etre of a parody is to

mock an original work and not to usurp demand for it in

the marketplace. As the Ninth Circuit observed in Fish-

er, it is highly unlikely that the lover of an original work

would instead purchase a parody of it, or vice-versa. 794

F.2d at 438. See also Berlin, 329 F.2d at 545. That is es-

pecially true here, where no reasonable person could

think that a lover of the original ballad made famous by

Roy Orbison would be satisfied by purchasing petition-

ers’ version instead. Moreover, if we recognize that a

parody and an original work fulfill different demands in

the marketplace, then the fact that a parody is commer-

cial in nature should not subject it to government-

imposed restraints which otherwise could not be sus-

tained. Cf. Simon & Schuster, Inc. v. New York Crime

Victims Bd., 502 U.S. __, 112 S.Ct. 501 (1991)(commer-

cial gain of authors irrelevant to whether their speech is

protected); New York Times Co. v. Sullivan, 376 U.S. at

265-66 (same). Indeed, the Court has recognized that

the copyright laws specifically are designed to offer fi-

nancial incentives to those who produce creative works.

Harper & Row, 471 U.S. at 546. Included among those

numbers are the creators of parodies."

* The majority opinion in the court below suggests that not only must

harm to the potential market for original work be considered, but also

harm to the potential market for derivative works. 972 F.2d at 1439.

Whatever validity that notion might have in other contexts, the Sixth

(continued...)

The same analysis applies under the first §107 fac-

tor. A commercial parody should not be considered pre-

sumptively unfair simply because it is commercial in na-

ture. Whether his work is good or bad, tasteful or not,

the parodist advances the arts and sciences by offering a

critical look at existing material. Because the demand

for that work will not usurp demand for the original,

there is nothing presumptively wrong with the use of the

original material. One author has suggested that the

first §107 factor has “at its core a simple issue: whether

the type and purpose of the use fall within favored cate-

gories." Dratler, supra p.24, at 290. As we have seen,

parody is a favored use and the applicable Sony pre-

sumption therefore fails to advance the policies underly-

ing the Copyright Act when such works are at issue.

The Senate report accompanying the bill that be-

came the Copyright Act of 1976 recognized that:

[w]ith certain special exceptions (use in paro-

dies or as evidence in court proceedings

might be examples) a use that supplants any

part of the normal market for a copyrighted

work would ordinarily be considered an in-

fringement.

Senate Report at 65 (emphasis added). In order to af-

ford parody the broad protection that Congress intended

it to have -- and that it needs to flourish -- the Court

should hold that works of parody, though commercial in

nature, presumptively do not threaten the market for the

original copyrighted material and presumptively are fair

uses.

* (...continued)

Circuit’s analysis would undermine settled free speech principles when

works of parody are at issue, for it would allow a copyright holder to

control who criticizes his or her own work and the precise content of

the criticism. Cf. Hustler, 485 U.S. at 56 (actual malice standard pro-

tecting critical speech “is necessary to provide ‘breathing space’ to the

freedoms protected by the First Amendment”).

CONCLUSION

For the foregoing reasons, the Court should reverse

the judgment of the court below and instead affirm the

judgment of the district court.

Respectfully submitted,