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

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0 MAY 28 93

No. 92-1292

IN THE oan

Supreme Court of the United States

OCTOBER TERM, 1992

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

CHRISTOPHER WONGWON, a/k/a FRESH Kip Ice,

MaRK Ross, a/k/a BROTHER MARQUIS,

Davip Hosss, a/k/a Mr. Mixx;

professionally known as THE 2 LIVE CREW; .

LUKE SKYYWALKER RECORDS,

Petitioners,

Vv.

ACUFF-ROSE MusIc, INC.,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

BRIEF OF AMICI CURIAE

CAPITOL STEPS PRODUCTION, INC.,

MARK RUSSELL, BARRET E. HANSEN,

BRUCE W. KERR, NANCY HOLSON, |

AND MICHAEL R. HUEY

IN SUPPORT OF THE PETITIONERS

WILLIAM C. LANE *

DAVID CHARLES MASSELLI

TRACY ANN ROMAN

MASSELLI & LANE, P.C.

8260 Greenboro Drive

Suite 260

McLean, Virginia 22102

(708) 556-9550

Counsel for Capitol Steps

Productions, Inc., Mark

Russell, Barret E. Hansen,

Bruce W. Kerr, Nancy

Holson, and Michael R. Huey

* Counsel of Record

WILson - Eras Prinrine Co.. Inc. - 7869-0096 - WASHINGTON. D.C. 20001

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TABLE OF CONTENTS

NE CID ceieecenttctsecncentnesscensnssnsniouscesnce

STATEMENT OF INTEREST ..................2....00..::c2cecee000

SUMMARY OF ARGUMENT .........0....2............:cccc0cc00000-

ITE sressectialiniathiecslcsinhieiichincielalabs sei hitiniinsiencienivsciaidainnes

I].

THE UNDERLYING PURPOSE OF THE

VALUE OF SATIRE AND _ PARODY,

WEIGH HEAVILY IN SUPPORT OF ANY

CLAIM THAT A SPECIFIC SONG PARODY

he gg NEC OOOO

A. The Fair Use Defense Is Essential to canis

ERR IRENA ap Rae enna ENE em

B. The American Tradition of Musical Parody

and Satire Is Worth Protecting ......... nee

C. Congress Intended That Parodies Be Pro-

tected as Fair Use When It Enacted Section

THE PETITIONERS’ SONG “PRETTY

WOMAN” IS A FAIR USE OF THE COPY-

Se a pensceanininia

A. Legitimate Parodists, Such as the Petition-

ers, Should Prevail on the First Fair Use

OY ieee ee

1. The Sixth Circuit Erred in Finding That

The Commercial Nature of a Parody Was

Dispositive of the First Statutory Fair

ASSESS SIITES reper Serna Te nee

2. In Evaluating the First Statutory Factor,

Weight Should Be Given to the Impor-

tance of Parody and Satire as a Means

of Comment and Criticism .....................

B. Creative Parodies, Such as the Petitioners’

Work, Should Prevail on the Second Fair

Use Factor When They Parody a Published

ete Sree xO se Tie IR AOR

TABLE OF CONTENTS—Continued

Page

C. The Sixth Circuit Misapplied the Sub-

stantiality Test as it Pertains to Song

SETI. sccisesceestaccesandliciscainbiaibeabiiedauunianiialiiniaieas 18

D. The Fourth Statutory Fair Use Factor Re-

quires Proof That a Commercial Parody Will

Harm the Copyrighted Work ..................... ra 20

1. The Sixth Circuit Erroneously Substi-

tuted a Commercial Use Presumption for

Proof of Economic Harm ........................... 20

2. The Presumption Employed by the Sixth

Circuit Will Have a Chilling Effect on

Protected Speech ................... ETA Seer 23

3. The Argument That a Parody Interferes

With the Right of a Copyright Owner To

Profit From Its Own Parodies Is With-

GD eecinitesseinsdatnlantldditeieteites es, 25

4. A Failure To Base Infringement Deci-

sions on Proof of Economic Harm Will

Lead to Regulation of Parody Based on

the Popularity and Political Acceptability

OR ay I oe ae 26

HIT | .ccccnacccvcsocciceeressevnnedansiuaieraneemae a, 28

APPENDICES

A. Declaration of William Strauss ..............000000.000.... la

B. Declaration of Mark Russell .......000000...0 0. lla

C. Declaration of Barret E. Hanson ........................ l5a

D. Declaration of Bruce W. Kerr... 18a

E. Declaration of Nancy Holson ......000000000000..000000.... 23a

F. Declaration of Michael Huey ...... Pee ee reed 27a

iii

TABLE OF AUTHORITIES

CASES

Acuff-Rose Music, Inc. v. Campbell et al., 972 F.2d

1429 (6th Cir. 1992), cert. granted, 61 U.S.L.W.

TSE ESS

Acuff-Rose Music, Inc. v. Campbell et al., 154 F.

Supp. 1150 (M.D. Tenn. 1991), rev'd, Acu ff-Rose

Musie, Inc. v. Campbell et al. 972 F.2d 1429,

(6th Cir. 1992), cert. granted, 61 U.S.L.W. 3667

(1993) a ee

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

1956) wa

Berlin v. E.C. Publications, Ine.. 329 F2d 541 (2d

Cir. 1964) | 12, 15,

Bloom & Hamlin v. Niron, 125 F. 977 (C.C.E.D.

Pa. 1903)

Columbia Pictures Corporation v. NBC, 137 F.

Supp. 348 (S.D.Cal. 1955) rl

Elsmere Music, Inc. v. NBC Company, 482 F.

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

ees Tee |

Fisher v. Dees, 794 F.2d 432 (9th Cir. 1986). _.6, 12,

Folsom v. March, 9 F.Cas. 342 (No. 4901) (CC

Mass. 1841)...

Freedman v. Maryland, 480 US. 51 (1965)

Green v. Luby, 177 F. 278 (C.C.S.D.N.Y. 1909)

Green v. Mitsenheimer, 177 F. 286 (C.C.S.D.N.Y.

1909) .

Harper & Row Publishe rs v. ‘Nation Enterprises,

471 U.S. 539 (1985) 5, 14, 17, 20,

Hill v. Whalen, 220 F. 359 (S.D.N.Y. 1914)

In re The Yoder Company, 758 F.2d 1114 (6th

Cir. 1985)

Towa State University Research Fund v. American

Broadcasting Companies, 621 F.2d 57 (2d Cir.

1980) . .

Keep Thompeon Governor Comm. v. ‘Citizens For

Gallen Comm., 457 F. Supp. 957 (D.N.H. 1978) .

Legille v. Dann, 544 F.2d 1 (D.C. Cir. 1976)

Page

passim

26, 27

16, 23

16, 18

21, 26

23, 24

TABLE OF AUTHORITIES—Continued

Page

Loew’s, Ine. v. Columbia Broadcasting System,

Inc., 131 F. Supp. 165 (S.D. Cal. 1955), aff’d

sub nom. Benny v. Loew’s, 239 F.2d 532 (9th

Cir. 1956), aff’d sub nom. Columbia Broadcast-

ing System Inc. v. Loew’s, 356 U.S. 43 (1958)

(affirmed per curiam by an equally divided

GIIIIIID i... s:cs:shscianctesesniideinsaatdennsnianantnlaamaiiesissadiaandemepebaladiiades 26

MCA, Ine. v. Wilson, 672 F.2d 180 (2nd Cir.

1981) ....... viii eect iad maaaiaddendlaianideacnis 28

Meeropol v. Nizer, 560 F.2d 1061 (2d Cir. 1977)... 5

New York Times Co. v. Sullivan, 376 U.S. 254

SS eon ona a an en aA eo 24

Reeves v. General Foods Corp., 682 F. 2d 515 (5th

TD ctneiciintuniienteneemeinteceineniiitaninssibdialinniagiiieds 21

Rogers v. Koons, 960 F.2d-301 (2d Cir. 1992) ‘si 22

Rosemont Enterprises, Inc. v. Random House, Inc.,

366 F.2d 308 (2d Cir. 1966) ................................. 23

Sid & Marty Krofft Television v. McDonald’s

Corp., 562 F.2d 1157 (9th Cir. 1977) _... eae 23

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

464 U.S. 416, 104 S.Ct. 774 (1984) .........._ . 4, 21, 24

Speiser v. Randall, 357 U.S. 513 (1958) 23

Stewart v. Abend, 495 U.S. 207 (1990) 5

Twentieth Century Music Corporation v. Aiken,

422 U.S. 151 (1976) ................. 4

Walt Disney Productions v. Air Pirates, 581 F. 2a

751 (9th Cir. 1978), cert. denied, 439 U.S. 1132

(1979) ....... 27

Walt Disney Productions | v. . Mature ‘Pictures Cor-

poration, 389 F. Supp. 1397 (S.D.N.Y. 1975) 28

Warner Brothers, Inc. v. ABC, Inc., 720 F.2d 231

eins 16, 17

Wright v. Warner Books, Ine. 953 F.2d 731 (2d

ES ener icdeictaecadaimaeuisiinaaitans ve 15

CONSTITUTION, STATUTES, AND

LEGISLATIVE HISTORY

17 U.S.C. § 107, amended by PL 102-492 (1992)... 3, 19,

17, 18, 20

I i 20

H.R. Rep. No. 1476, 94th Cong., 2d Sess. (1976) . 10,14

TABLE OF AUTHORITIES—Continued

S. Rep. No. 473, 94th Cong., Ist Sess. (1975)

U.S. Constitution, Art. I, Sec. 8, Clause 8

U.S. Register of Copyrights, Report of the Regis-

ter of Copyrights on the General Revision of

the U.S. Copyright Law (1961)

TREATISES

Ball, H., Law of Copyright and Literary Property

ER es ne eC PO ae ee

Goetsch, C., “Parody as Free Speech—The Re-

placement of the Fair Use Doctrine by First

Amendment Protection,” 3 W. New England

Law Review 39 (1980) ............000.. oe ee

Moore, J. & H. Bendix, Moore’s Federal Practice

I a

Nimmer on Copyright (1992)

OTHER AUTHORITIES

Boswell, J., Life of Johnson (1970)

Fielding, H., Shamela (1741) 200

Howard, J.T., Our American Music: A Compre-

hensive History from 1620 to the Present

TS Ee eee Sele ee eee

Kitchin, G., Survey of Burlesques and Parody in

English (1967 ed.) ........... seeseenrllea i als

Lawrence, V., Music for Patriots, Politicians, and

REE REE PSAP aA AES BSE

Patterson & Lindberg, The Nature of Copyright:

A Law of Users’ Rights (1991)

Smith, G., Joe Hill (1969) 0000

The Oxford Classical Dictionary (1970) ...........

Wall Street Journal, Sept. 5, 1990

ee eee eee ee

i ee eee ee

Page

10, 22

BRIEF OF AMICI CURIAE

IN SUPPORT OF THE PETITIONERS

Capitol Steps Productions, Inc. (hereinafter “The Capi-

tol Steps”), Mark Russell, Barret E. Hansen, Bruce W.

Kerr, Nancy Holson, and Michael R. Huey respectfully

submit this brief as amici curiae in support of the Peti-

tioners. Consents of the parties have been lodged with

the Clerk.

STATEMENT OF INTEREST

The amici participating in this brief are engaged in the

business of writing, performing, or playing musical satire

and parody. The Capitol Steps have been performing, in

Washington, D.C. and nationally, for eleven years. Dec-

laration of William A. Strauss, hereinafter “Strauss Dec.,”

attached to the brief as Appendix A, 94 1-2. A Capitol

Steps performance consists primarily of song parodies,

principally of copyrighted songs.

Mark Russell has been performing parody in the Wash-

ington, D.C. area and nationally for nearly 40 years. He

regularly appears on national network radio and televi-

sion. For the past 18 years, he has hosted his own

“Mark Russell Comedy Specials” on public television.

Declaration of Mark Russell, hereinafter “Russell Dec.,”

attached to the brief as Appendix B, @@ 2-3. Along with

spoken material, Mark Russell performs song parodics

to both coyprighted and original melodies.

Barret E. Hansen, professionally known as “Dr.

Demento,” has since 1970 conducted a weekly radio pro-

gram consisting primarily of humorous songs, including

song parodies. The program has been nationally syndi-

cated since 1974, and is currently heard on approxi-

mately 100 stations nationwide. Declaration of Barret E.

Hansen (hereinafter “Hansen Dec.”), attached hereto as

Appendix C.

Bruce W. Kerr is a professional singer and song

parodist in Mountain View, California, and has been

engaged in that profession for over twenty years. Decla-

ration of Bruce W. Kerr (hereinafter “Kerr Dec.’’), at-

tached hereto as Appendix D.

Nancy Holson is the lyricist and producer of “The

News in Revue,” a musical political satire troupe cur-

rently performing in Westport, Connecticut. Declaration

of Nancy Holson (hereinafter “Holson Dec.”), attached

hereto as Appendix E.

Michael Huey is the lyricist for ‘““The Fabulous Bakers-

field Boys,” a musical satire group in Bakersfield, Cali-

fornia. Declaration of Michael Huey (hereinafter “Huey

Dec.), attached hereto as Appendix F.

The amici play or perform topical musical parodies

without attempting to secure permission; in each case they

have found that securing such permission is difficult or

impossible. Strauss Dec., @4 4-7; Russell Dec., ¢4 6-8,

€¢€ 6-8; Hansen Dec., €4 6; Kerr Dec., § 6; Holson Dec.,

€ 9; Huey Dec., ¢ 9.

The interest of the amici in this proceeding is quite

clear. If it is unlawful for The 2 Live Crew to sing

the song parody “Pretty Woman” except with the per-

mission of the copyright owners of the underlying work,

then it may be unlawful for any song parodist to play or

perform musical satire or parody, and the world of both

political discourse and musical fun may be impoverished.

The amici are before this Court because the standard

used by the Court of Appeals appears to apply with equal

force to both political satire and outlaw rap. Amici

therefore have a strong and direct interest in this Court

reversing that ruling.

SUMMARY OF ARGUMENT

To prevent copyright protection of intellectual prop-

erty from becoming a straitjacket, cor rts and the Con-

gress have developed the doctrine of “fair use,” which

provides that copyrighted material may be quoted or

copied verbatim under certain conditions. “Fair use”

status has regularly been granted to those who quote

from copyrighted works to explain or critique them, and

to those who parody copyrighted works.

The “fair use” doctrine is now codified at 17 U.S.C.

§ 107, amended by PL 102-492 (1992). The legislative

history of Section 107 makes clear that, in adopting that

section of the law, Congress believed it was providing

fair use protection for parody.

In this case, the Sixth Circuit found that a song parody

performed by Petitioners was not a fair use. It reached

this determination almost entirely on the basis of its un-

disputed finding that the parody was recorded in part for

a “commercial” purpose. The test applied by the Sixth

Circuit effectively rendered the four factor test embodied

in the statute moot by holding that the “commercial”

nature of the parody was dispositive when considering

both the first and fourth tests. This emphasis on “com-

mercial” purpose disregards the statutory language, and

renders the statutory balancing test meaningless. The test

applied by the Sixth Circuit would bring an end to musi-

cal political parody as it has existed since the time of the

Revolution, and allow censorship by copyright of pro-

tected speech.

Parody and satire play an important role in our culture

and are significant elements in the free expression of

ideas. It is clear that they constitute a fair use. In apply-

ing the four part statutory test to the work at issue, the

Court should (1) take into account the socially bene-

ficial use of parody and satire, and (2) require that

proof of actual or potential economic damage.

ARGUMENT

This case presents the Court with a much needed op-

portunity to clarify a confused area of the law. While a

well reasoned line of cases has held that legitimate parody

is not a copyright violation because it is a fair use, some

courts have reached the opposite decision. Often these

rulings involve parodies that are obscene, in poor taste,

or, as in the instant case, trenchant statements by con-

troversial performers. The effect of decisions like that

issued by the Court of Appeals below has been to allow

an erratic form of censorship by copyright, even where

no conceivable economic harm has been suffered.

I. THE UNDERLYING PURPOSE OF THE COPY-

RIGHT LAW, AND THE SOCIAL VALUE OF

SATIRE AND PARODY, WEIGH HEAVILY IN

SUPPORT OF ANY CLAIM THAT A SPECIFIC

SONG PARODY IS A “FAIR USE.”

The purpose of the copyright law is to “promote the

Progress of Science and the useful Arts. . . .” U.S. Con-

situation, Art. I, Sec. 8, Clause 8. To accomplish this

end, the Constitution empowers Congress to secure “for

limited Times to Authors . . . the exclusive right to their

. writings.” Id. In obedience to constitutional man-

date, this Court has consistently held that, “[t]he imme-

diate effect of our copyright law is to secure a fair return

for an ‘author’s’ creative labor. But the ultimate aim is,

by this incentive, to stimulate artistic creativity for the

public good.” Twentieth Century Music Corporation v.

Aiken, 422 U.S. 151, 156 (1976) quoted in Sony Corp.

of America v. Universal Studios, Inc., 464 U.S. 416, 432

(1984).

The concept of “fair use’ has been a central element

in the law of copyright since at least the early nineteenth

century. The first significant embodiement of the princi-

pal we now recognize as fair use is found in Folsom v.

March, 9 F.Cas. 342 (No. 4901) (CC Mass. 1841),

where Justice Story upheld both the right of certain

authors to copy the works of others and the limit upon

that right imposed by the copyright law.’ Throughout

the judicial development of the fair use doctrine, courts

1 While fair use is generally seen as a limitation on the rights

of copyright holders, Justice Story was actually extending the reach

of copyright in Folsom by undercutting the “fair abridgement doc-

trine,” favored in English law, which allowed almost any abridge-

ment which did not qualify as a complete reprinting. Patterson &

Lindberg, The Nature of Copyright: A Law of Users’ Rights 67

(1991). But even while limiting abridgement from a copyrighted

work, the fair use doctrine clearly allowed competitors to use copy-

righted materials in competing works. Jd. at 68.

have focused on whether a purported fair use “substi-

tuted” for the original:

One test which, when applicable, would seem to be

decisive, is whether or not so much has been repro-

duced as will materially reduce the demand for the

original.

Hill v. Whalen, 220 F. 359, 360 (S.D.N.Y. 1914).

Fair use is “ ‘a privilege in others than the owner of

the copyright to use the copyrighted material in a reason-

able manner without his consent’. H. Ball, Law of Copy-

right and Literary Property 260 (1944).” Harper &

Row Publishers v. Nation Enterprises, 471 U.S. 539, 549

(1985). “The doctrine offers a means of balancing the

exclusive right of a copyright holder with the public’s

interest in dissemination of information affecting areas

of universal concern. . . .”” Meeropol v. Nizer, 560 F.2d

1061, 1068 (2d Cir. 1977).

The purpose of the doctrine has always been to allow

“courts to avoid rigid application of the copyright stat-

ute when, on occasion, it would stifle the very creativity

which that law is designed to foster.” Stewart v. Abend,

495 U.S. 207, 236 (1990) (quoting lowa State Univer-

sity Research Fund v. American Broadcasting Companies,

621 F.2d 57, 60 (2d Cir. 1980)). The social value of

parody and satire, as demonstrated by their continuing

importance in American history, together with the near

impossibility of securing copyright licenses for satiric and

parodic uses, supports a broad application of the fair

use doctrine in this field.

A. The Fair Use Defense Is Essential to Parody and

Satire.

The fair use defense is essential to artistic creativity

in the realms of satire and parody. A satire of a copy-

righted work “by its very nature is unlikely to be the

subject of a license from the author of a serious work.

Only by the recognition of a fair use defense is society

likely to reap the benefit of this socially useful literary

genre.” 3 Nimmer on Copyright § 13.05[C] (1992).

This truism is exemplified by the instant case—in which

Acuff-Rose declined The 2 Live Crew’s offer to pay stat-

utory royalties.

The declarations appended to this brief by amici fur-

ther support this fundamental point. Attempts to secure

licenses for parody uses of copyrighted songs almost in-

variably yield negative results. These include outright

refusal,” simple failure to respond,’ conditioning a grant

of permission on complete surrender of all rights to the

parody lyrics,* and even conditioning a grant of permis-

sion on use of the music publisher’s lyrics rather than the

parodist’s.° While unconditional permission is occasion-

ally granted to a few performers who have established a

large commercial market for their parodies, it is often

refused even for such performers. Hansen Dec., 4¢ 6-8.

In short, the Ninth Circuit was correct in its finding

that “[p]arodists will seldom get permission from those

whose works are parodied.” Fisher v. Dees, 794 F.2d

432, 437 (9th Cir. 1986).° Without protection afforded

by the fair use doctrine, the writing of musical parody

would be dangerous or impossible.

2 Russell Dec., "7; Huey Dec., 6; Kerr Dec., "5; Holson Dec.,

3 Huey Dec., { 6; Holson Dec., { 6.

* Huey Dec., { 6; Kerr Dec., { 4.

5 Holson Dec., { 7.

6 In the “Mark Russell Comedy Special”’ which aired on the Public

Broadcasting System on the evening of May 19, 1993, Mr. Russell

sang a parody of “High Ho, High Ho, It’s Off To Work We Go,”

the theme song of the seven dwarves from the movie “Snow White.”

In Mr. Russell’s hands, the song was transformed into a musical

commentary on recent reports that, during the “McCarthy period”

of the 1950’s, Walt Disney had reported to various federal authori-

ties on the activities of individuals he believed to be subversive.

Clearly, there was no possibility of Mr. Russell securing permission

for this use of the song from its copyright holder, the Walt Disney

Company. Russell Dec., { 5.

B. The American Tradition of Musical Parody and

Satire Is Worth Protecting.

The United States enjoys a rich tradition of social and

political satire, including satire in musical form. An ap-

preciation of the value of this tradition, in both its his-

torical and current contexts, is critical in considering the

application of the fair use doctrine to commercial song

parody.

While satire and parody have their roots in ancient

times,’ they have always been at home in English litera-

ture. The first English satirical poem was probably

Chaucer’s “The Rime of Sir Thopas,” which mocked

chivalric ballads. Later, Alexander Pope cast “The Rape

of the Lock” as a parody of epic poetry. The first novel

in English, Samuel Richardson’s Pamela, was published

in 1740; the next year saw the publication of Henry

Fielding’s Shamela, whose style, characters, and plot were

a direct parody of those in Richardson’s novel."

Song parodies are as old as satire itself. The first Eng-

lish song parodies were probably written during the seven-

teenth century struggles between the Puritans and the

Royalists. Oliver Cromwell himself was satirized in “The

™The parody epic poem Margites was generally attributed to

Homer in antiquity, and was mentioned by Archilochus in the

eighth century B.C. The Oxford Classical Dictionary 783 (1970).

Later satirical authors of antiquity included Aristophanes (“The

Frogs ;” “Lysistrata”), and the Roman poets Juvenal and Lucian.

Juvenal is probably best known for his comment that, in second

century Rome at least, it was “difficult not to write satire” (difficile

est saturam non scribere”). Satires. This remark bears a family

resemblance to Mark Russell’s frequent comment that comedy talent

is not needed in Washington—“It’s just rip and read.”

5 A portion of the lengthy subtitle of this work shows the intended

connection. It begins, “An Apology for the Life of Mrs. Shamela

Andrews, in which, the many notorious Falsehoods and Misrepre-

sentations of a Book called Pamela are exposed and Rebutted. .. .”

H. Fielding, Shamela (1741). Shamela was so commercially suc-

cessful that Fielding followed up the next year with Joseph

Andrews, another Pamela parody. See generally, G. Kitchin, Survey

of Burlesques and Parody in English 169 (1967).

Roundheads and the Cavaliers,” whose first line “Nanky

Doodle came to town” may have been a remote source

of “Yankee Doodle,” perhaps the most distinctively

American song of all time. V. Lawrence, Music for

Patriots, Politicians, and Presidents 33 (1975).

A more immediate source of “Yankee Doodle,” how-

ever, appears to have been an English song called “Lucy

Locket” or “Fisher's Jig.” The “Yankee Doodle” lyrics

may have been written (and the title supplied) by an

English army surgeon as a comment on the ragtag char-

acter of colonial troops in the French and Indian War.

During the Revolutionary War, the words were rewritten,

in numerous verses and variations, as an anti-British

song. J.T. Howard, Our American Music: A Compre-

hensive History from 1620 to the Present 115 (1965).

Other popular song parodies during the American Revolu-

tion included “The Liberty Song,” penned to the tune of

“Heart of Oak” by John Dickinson, later a framer of the

Constitution, and “The Battle of the Kegs,” by Frances

Hopkinson, a signer of the Declaration of Independence.”

After the Revolution, song parodies continued to be an

important form of political expression. In addition to

“The Star Spangled Banner,” and “America” (“My

Country ‘tis of Thee”), the most stirring song to emerge

from the Civil War, “The Battle Hymn of the Republic,”

began as a semi-humorous parody of an old southern

camp meeting tune."

Song parodies have always been a staple of American

political life. They have been used by union organizers

and their opponents, war protesters and war supporters,

and social critics of all stripes to literally make their

® V. Lawrence, supra, at 26.

1 The original song, “Say, Brothers, Will You Meet Us,” was

written before the war by William Steffe. By 1859, soldiers had

begun singing that song with lyrics of their own—the most famous

turning the song into “John Brown’s Body.” Julia Ward Howe

heard Union-soldiers singing that version, and wrote “The Battle

Hymm of the Republic,” which became the Union rallying cry for

the rest of the war. Howard, supra, at 258-59.

voices heard on the issues of the day. Song parodies have

important advantages over other forms of political ex-

pression. In the words of Joe Hill, the great I.W.W.

songwriter and activist, “if a person can put a few cold,

common sense facts into a song and dress them up in a

cloak of humor to take the dryness off them, he will

succeed in reaching a great number of workers who are

too unintelligent or too indifferent to read a pamphlet or

an editorial on economic science.” Letter from Joe Hill

to Solidarity (Dec. 12, 1914), cited in G. Smith, Joe

Hill 19 (1969). An audio tape prepared by The Capitol

Steps containing examples of song parodies through

American history has been filed as Exhibit 1 to the

Declaration of William Strauss.”

The tradition of using song parodies to address na-

tional and local political issues has gained renewed vigor

in the last few years. For example, Barret Hansen, whose

weekly syndicated “Dr. Demento Show” is the leading

radio outlet for song parodies in America, received over

100 humorous songs regarding the Persian Gulf War, the

vast majority of which were song parodies. Hansen Dec.,

«4. In an article discussing the numerous song parodies

engendered by the Gulf War, the Wall Street Journal

called political song parody “a time-honored tradition .. .

Americans are the kind of people who appreciate this

kind of thing.” Wall Street Journal, Sept. 5, 1990 at

Al4, col. 3. This vibrant American tradition would be

weakened or destroyed were this Court to agree with the

Sixth Circuit in allowing music publishers to practice

censorship by copyright.

C. Congress Intended That Parodies Be Protected as

Fair Use When It Enacted Section 107.

When Congress enacted Section 107 in 1976, it ex-

pected parody to be covered by the newly codified defini-

tion of fair use. Both the House and Senate Reports spe-

11 Source information on the audio tape (Exhibit 1) is set forth

in Exhibit 2 of the Strauss Declaration.

cifically identified parodies as a form of fair use entitled to

the protection of the statute. See H.R. Rep. No. 1476,

94th Cong., 2d Sess. 65 (1976) (“House Report”). The

Senate Report went so far as to indicate that parodies

might be allowed to supplant some uses of the copyrighted

original:

With certain special exceptions (use in parodies 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 infringement.

S. Rep. No. 473, 94th Cong., Ist Sess. 61 (1975)

(“Senate Report’) (Emphasis added). The view that fair

use should include parody had previously been recom-

mended by the Register of Copyrights. U.S. Register of

Copyrights, Report of the Register of Copyrights on the

General Revision of the U.S. Copyright Law 24 (1961).

Congress clearly believed that it was continuing fair use

protection for parodies.

Il. THE PETITIONERS’ SONG “PRETTY WOMAN” IS

A FAIR USE OF THE COPYRIGHTED WORK.

The statutory formulation of the fair use test requires

consideration of four nonexclusive factors. 17 U.S.C.

$107. Both The 2 Live Crew’s commercial parody

“Pretty Woman” and the social and political satire per-

formed by amici are protected by the fair use doctrine.

A. Legitimate Parodists, Such as the Petitioners,

Should Prevail on the First Fair Use Factor.

The first of the four fair use factors is:

(1) the purpose and character of the use, including

whether such use is of commercial nature or is for

nonprofit educational purposes. . . .

17 U.S.C. § 107(1).

The majority and the dissent in the Court of Appeals,

as well as the District Court, concluded that The 2 Live

Crew song “Pretty Woman” was commercial parody.”

12 The majority describes the “purpose” as both parody and com-

mercial. Acuff-Rose Music, Inc. v. Campbell et al. 972 F.2d 1429,

Acuff-Rose Music, Inc. v. Campbell et al., 754 F. Supp.

1150, 1154-55 (M.D. Tenn. 1991) (“Acuff-Rose I’’).

rev'd, Acuff-Rose Music, Inc. v. Campbell et al., 972

F.2d 1429, 1435-36, 1443 (6th Cir. 1992) (“Acuff-Rose

Il”), cert. granted, 61 US.L.W. 3667 (1993). The

opinions differ over whether the fact of commercial use

is to be treated as dispositive for purposes of the first

factor: the majority held that once a commercial use

was found, the status of the work as parody was irrele-

vant; '* the dissent held that commercial use, per se, did

not determine whether this fair use factor was present or

absent.

1. The Sixth Circuit Erred in Finding That the

Commercial Nature of a Parody Was Dispositive

of the First Statutory Fair Use Factor.

Traditionally, real song parodies, nearly all of which

are done in part for a commercial purpose, are accorded

no less respect for that reason than hypothetical, nor

commercial parodies. Indeed, the cases finding parody to

be a fair use al/ involve commercial parodies. See, e.g.

1436 (6th Cir. 1992), (“Acuff-Rose II”) cert. granted, 61 U.S.L.W.

3667 (1993). The dissent finds that the purpose is parody and the

character commercial. /d. at 1443.

'8The majority opinion held “that the admittedly commercia!

nature of the derivative work—the purpose of the work being no

less important than its character in the Act’s formulation— requires

the conclusion that the first factor weighs against a finding of fair

use.” Acuff-Rose II, 972 F.2d at 1437. The Court reached its deci-

sion that this result was “required” without any explanation and

after a somewhat rambling statement that it would consider

“whether 2 Live Crew met its burden to rebut the presumption by

a defense, we note, requiring the court to be convinced that the

‘parody does not unfairly diminish the economic value of the origi-

nal.’” Jd. A charitable reading of this section of the decision below

would conclude that the Court had merged the first and fourth

factors, impermissibly importing the economic harm element of the

fourth factor into the first factor. As will be discussed infra, this

error is compounded later in the decision when the Court deter-

mined that it could presume potential economic harm without a

shred of support in the record. /d. at 1438.

Fisher (parody by commercial radio station personality

found to be fair use); Elsmere Music, Inc. v. NBC Comn-

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

(2d Cir. 1980) (parody by commercial television net

work found to be fair use); Berlin v. E.C. Publications,

Inc., 329 F.2d 541 (2d Cir. 1964) (parody by commer-

cial magazine found to be fair use). These decisions hold

that the commercial nature of the parody, by itself, would

not act to bar the fair use defense. One need not go so

far as Dr. Johnson, who pithily stated that “No man but

a blockhead ever wrote except for money,” "* to recognize

that meaningful comment, whether satire. criticism or re-

view, is generally undertaken in part for financial gain.

Today, scores of companies, groups, and individuals

write, perform, and record political parody songs of copy-

righted material, relying on the fair use doctrine for their

protection from claims of copyright infringement. See

Petition at 20. Whenever the song gains more than a

purely local audience, these parodies are presented in part

for commercial purposes. They are played on commer-

cial radio stations, broadcast on commercial television

networks, performed at concerts for which admission iv

charged, or recorded on tapes or discs which are sold to

the public. There is simply no other route into the popu-

lar culture than through the marketplace; even were the

parodists themselves to perform the work gratis. the ac’

of transmitting this source of political discourse to the

public is necessarily suffused with commercialism. Hansen

Dec., € 8; Holson Dec., © 2.

Of course, this is not a new phenomenon. Parodists,

like other writers and artists, have always engaged in their

art in part for monetary reward. As one commentator has

noted:

It is obvious that the vast majority of authors com-

bine both commercial and artistic motives in all their

works. An author naturally wants to support himself

and to convey his message, and to accomplish both

4 J. Boswell, Life of Johnson 731 (1970).

it is in his interest to sell as many copies or tickets

as possible... . It was only the prospect of amelio-

rating his oppressive poverty that prompted Cer-

vantes to begin writing Don Quixote. Henry Field-

ing wrote Shamela and Joseph Andrews in a desper-

ate attempt to support his family after the Licensing

Act of 1737 cut off his income by closing down his

theater.

Goetsch, supra, at 44.

American song parodists have never shied away from

receiving payment for their work. In 1798, the parody

“Adams and Liberty,” written to the tune of “To An-

acreon in Heaven,” paid its author a reported $750.

Howard, svpra, at 126. The sheet music for this song is

believed to have been the first publication in America of

the tune of our future national anthem. V. Lawrence,

supra, at 148. One of the first successful American

musicals was “The Tars from Tripoly,” about American

sailors fighting the Barbary Pirates. The entire show

was adapted from an English ballad opera glorifying

the Royal Navy. /d. at 183.

However phrased, the Sixth Circuit has established

what amounts to a bright line test—if a parody is pro-

duced for a commercial purpose, it is not a fair use. The

Court finds that commercial parody must fail the first test

because its commercial purpose outweighs its status as

parody; moreover, because the parody is commercial,

economic harm must be presumed, thereby causing the

work to fail the fourth test.'° This result is totally incon-

sistent with the language and intent of the statute. Had

Congress intended the result reached by the majority, it

could have simply written the first factor as “whether such

use is of commercial nature.” It did not do so.

In formulating the statutory fair use doctrine contained

in 17 U.S.C. § 107, Congress was subject to intense

15 The Sixth Circuit has also cast the second and third factors in

such a way that song parodies will always fail these tests. See,

infra, at section B and C.

lobbying on the degree to which a schoolteacher could

copy portions of a book for use by her class. House Re-

port at 66. The dependent clause referencing the com-

mercial or non-profit nature of a use was added largely

to expand “fair use” to this area, not to limit the scope

of fair use treatment:

The Committee has amended the first of the criteria

to be considered—*“the purpose and character of the

use”——to state explicitly that this factor includes a

consideration “whether such use is of a commercial

nature or is for non-profit educational purposes.”

This amendment is not intended to be interpreted as

any sort of not-for-profit limitation on educational

uses of copyrighted works. It is an express recogni-

tion that. as under the present law, the commercial

or non-profit character of an activity, while not con-

clusive with respect to fair use, can and should be

weighed along with other factors in fair use decisions.

Id.

In deciding to afford controlling weight to the com-

mercial character of a parody, the majority opinion relied

heavily on Harper & Row. Yet nothing in that decision

compels, or even suggests, that the commercial character

of a contested fair use should be controlling in an analysis

of the first factor. The Court weighed three factors in

Harper d: Row to determine the nature and character of

the challenged use: the fact that the challenged use en-

tailed news reporting; the fact that The Nation was a

commercial magazine: and the fact that it had “the in-

tended purpose of sunplanting the copyright holder’s valu-

able right of first publication.” Jd. at 562. (Emphasis in

original.) !* was clearly this last fact, and not the second,

which tilted this Court’s decision on the first fair use

factor toward Harper & Row: “In evaluating character

and purnose we cannot ignore The Nation’s stated pur-

pose of scooping the forthcoming hardcover and Time

abstracts.” Jd. By contrast, in this case, no such inten-

tion to supplant or “scoop” the original melody of “Oh.

Pretty. Woman” has been found on the record of this case,

or has even been alleged.

2. In Evaluating the First Statutory Factor, Weight

Should Be Given to the Importance of Parody

and Satire as a Means of Comment and Criticism.

It is clear from the case law and the legislative history

that parody is an accepted fair use. Even the majority

opinion below recognized that “the term parody must be

either subsumed within the statutory terms ‘criticism’ or

‘comment,’ or be an entirely separate category of ex-

ception.” Acuff-Rose Il, 972 F.2d at 1435. The Second

Circuit has held that this fact alone means that the de-

fendant wins on the first statutory test:

[Tjhere is a strong presumption that factor one fav-

ors the defendant if the allegedly infringing work fits

the description of uses described in section 107.

“I I}f a book falls into one of these categories [i.e.,

criticism, scholarship or research], assessment of the

first fair use factor should be at an end,’” (citation

omitted) even though, as will often be the case, the

biographer and _ publisher “ ‘anticipate profits.’”

(citation omitted ).

Wright v. Warner Books, Inc., 953 F.2d 731, 736-37

(2d Cir. 1991). This view has been implicitly adopted

by most courts which have examined song parody.

In Berlin, the court rejected Irving Berlin’s contention

that Mad Magazine had infringed his copyright to various

song lyrics."* The court expressly rejected the plaintiff's

contention that Mad’s use of his song lyrics was unfair

16 There are no reported cases prior to the twentieth century in

which a copyright holder attempted to enjoin a satire of any type of

work, or to sue for royalties from such a satire. The early twentieth

century cases which are frequently cited on this subject, such as

Bloom & Hamlin v. Nixon, 125 F. 977 (C.C.E.D. Pa. 1903), did not

involve song parodies such as the one at issue here. In those early

cases, vaudeville performers simply sang a copyrighted song while

imitating the movements, voice, and attitude of a well kown per-

former. If one sets aside the vaudeville cases like Bloom; Green v.

Luby, 177 F. 278 (C.C.S.D.N.Y. 1909) ; and Green v. Mitsenheimer,

177 F. 286 (C.C.S.D.N.Y. 1909), Berlin marks the first recorded

case of which amici were aware in which a song parodist was sued

for copyright infringement.

because Mad was a commercial magazine, holding that

“as a general proposition, we believe that parody and

satire are deserving of substantial freedom. . .” /d. at

545. .

In Elsmere Music, Inc. v. NBC Company, the court

protected as a fair use a Saturday Night Live parody of

the “I Love New York” advertising jingle. The Second

Circuit held that “in today’s world of often unrelieved

solemnity, copyright law should be hospitable to the

humor of parody... .” 623 F.2d at 253.

In Fisher, the court held that a parody of “When

Sunny Gets Blue” by a disc jockey on a commercial

radio station was a fair use. In this case, the parties

agreed that the parody was a “commercial use of

the song.” 794 F.2d at 437. The court recognized,

however, that “many parodies distributed commercially

may be ‘more in the nature of an editorial or social com-

mentary than .. . an attempt to capitalize financially on

the plaintiff's original work.’” J/d., quoting Pillsbury Co.

v. Milky Way Productions, Inc., 215 U.S.P.Q. 124, 131

(N.D. Ga. 1981).

Warner Brothers, Inc. v. ABC, Inc., 720 F.2d 231 (2d

Cir. 1983), a non-musical parody case, affirmed a grant

of summary judgment for the defendants in a case involv-

ing the alleged infringement of Warner’s “Superman”

copyrights by the television program, “The Greatest Amer-

ican Hero.” The court contrasted the fair use of elements

of the Superman persona in the television program with

a previous infringing use of similar elements in a com-

mercial for television sets and stereos. In doing so, it ex-

plained the importance of parody in terms directly ap-

plicable to this case:

{[Ajn original work of authorship with elements of

parody, though undoubtedly created in the hope of

commercial success, stands on a different footing

from the products of a discount chain. ... After all,

any work of sufficient notoriety to be the object of

parody has already secured for its proprietor consid-

erable financial benefit. According that proprietor

further protection against parody does little to pro-

mote creativity, but it places a substantial inhibition

upon the creativity of authors adept at using parody

to entertain, inform, or stir public consciousness.

Id. at 242-43.

Musical parody and satire have provided the American

people with a voice for their political sentiments—fre-

quently a voice that had no other way to be heard. When

the values ass iated with parody are weighed, particu-

larly in the context of the congressional intent that paro-

dies should qualify for fair use protection, this Court

should reach the conclusion that “Pretty Woman” pre-

vails on the first use factor, as do all legitimate parodies.

B. Creative Parodies, Such as the Petitioners’ Work,

Should Prevail on the Second Fair Use Factor

When They Parody a Published Work.

The second fair use factor is:

“(2) the nature of the copyrighted work. . .”

17 U.S.C. § 107(2).

In evaluating this factor, the Harper & Row Court said

that the deference accorded an unpublished work is

greater than that accorded a published work, and that

the deference accorded creative works is greater than

that accorded works of fact or reportage. 471 U.S. at

562. The opinion below addresses only the second of

these propositions. The dissent gives consideration to

both, and rightly concludes that the mere fact that

the copyrighted work being parodied is “creative” can

never be controlling in the case of a parody, because “‘it

would make no sense at all to penalize the parodist for

taking as his subject precisely the sort of work that has

been grist for parodists’ mills for the last two and a half

millennia.” Acuff-Rose Il, 972 F.2d at 1444. When, as

here, a parody takes for its subject a recognizable, pre-

viously published work, it should prevail on this factor.

C. The Sixth Circuit Misapplied the Substantiality

Test as It Pertains to Song Parodies.

The third statutory factor is:

(3) the amount and substantiality of the portion

used in relation to the copyrighted work as a

whole... .

17 U.S.C. § 107(3).

The use of this statutory factor in the case of parody

is, as the dissent has recognized, “problematical.” Acuff-

Rose 11, 972 F.2d at 1444. A parody by its nature must,

at a minimum, “conjure up” a sufficient portion of the

copyrighted work to be recognizable as parody.

In the specific case of song parodies, the Second Circuit

has endorsed a view of the “substantiality” factor which

differs markedly from the restrictive view of the majority

Opinion in this case:

[T]he concept of “conjuring up” an Original came

into the copyright law not as a limitation on how

much of an original may be used, but as a recogni-

tion that a parody frequently needs to be more than

a fleeting evocation of an original in order to make

its humorous point. (Citation omitted.) A parody is

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

more extensive use would still be fair use, provided

the parody builds upon the original, using the orig-

inal as a known element of modern culture and con-

tributing something new for humorous effect.

Elsmere, 623 F.2d at 253 n.1. Similarly, the Ninth Cir-

cuit has recognized a “special need for accuracy” in

song parodies where a change of a few notes can make

the melody unrecognizable, and destroy the intended

musical joke. Fisher, 794 F.2d at 439.

The Sixth Circuit opinion simply makes no sense when

applied to a song parody. Despite recognition of Elsmere,

it finds that:

The qualitative degree of the copying is even more

critical than the quantitative, and we ask what degree

of the essence of the original is copied in relation

to its whole. (Citation omitted.) We conclude that

taking the heart of the original and making it the

heart of a new work was to purloin a substantial

portion of the essence of the original.

Acuff-Rose 11, 972 F.2d at 1438.

The flaw in this formulation is that every song has a

recognizable tune. That tune constitutes its true “heart”

or “essence.” It is impossible to parody the song without

musically quoting its tune. According to the majority

opinion, once one does quote this “heart,” one loses (or

at least does not win) on this factor of the fair use test.

The genre of song parody, as practiced by Petitioners

and the amici, consists largely of setting original lyrics to

familiar tunes. Focusing on musical similarity ignores

the creative heart of parody—the original lyrics created

by the parodist and the “spin” which those lyrics place

on the original song. If an existing work is not parodied

directly, but is used as a vehicle for political or social

Satire, then the copyrighted material should contribute

effectively to the satire.'" When the copyrighted material

is an effective part of the parody, the parodist should pre-

vail on this test.

'? For example, The Capitol Steps song “I Wanna Be Your Pander

Bear” is a satirical comment on campaign promises. But it was set

to the music of “Teddy Bear,” an old Elvis Presley song. Sihce

President Clinton, the target of the song, has sometimes borne the

nickname “Elvis,” this selection adds a musical joke tw the politica!

lyrics. In the same vein, the song “Phantom of the Clarion” by the

Fabulous Bakersfield Boys is a comment on the waste of building

a huge uncompleted hotel. Huey Dec., "7. The use of the tune

“Phantom of the Opera” musically evokes the underground chambers

which were the setting of much of that play, and compares them to

the interior of the unfinished hotel. Similarly, “The News in Revue”

parodied the song “We'll Always be Bosom Buddies” to satirize the

political backstabbing which occurred between Liz Holtzman and

Geraldine Ferraro in the New York Senate primary during “The

Year of the Woman.” Holson Dec., 3. In each case, the parodist

used the entire tune and meter of the original song, as well as

Scattered words, to make a devastating and original satiric point.

D. The Fourth Statutory Fair Use Factor Requires

Proof That a Commercial Parody Will Harm the

Copyrighted Work.

The fourth statutory factor is:

(4) the effect of the use upon the potential market

for or the value of the copyrighted work.

17 U.S.C. § 107(4).

This Court has called this fourth factor “undoubtedly

the single most important element of fair use.” Harper

& Row, 471 U.S. at 566. The Sixth Circuit’s holding

that copyright holders win on this factor whenever a

parody is “commercial” is the core error of its opinion.

1. The Sixth Circuit Erroneously Substituted a

Commercial Use Presumption for Proof of Eco-

nomic Harm.

Despite the importance of the fourth factor, the copy-

right holders in this case presented no evidence that the

petitioners’ parody had any effect on the market for its

copyrighted work.’* But the court below determined that

there was no need for evidence. Having found that The

2 Live Crew’s use of the copyrighted work was “wholly

commercial,” the Court “presume[d] that a likelihood of

future harm to Acuff-Rose exists.” Acuff-Rose II, 972

F.2d at 1438.

In reaching this rather startling presumption, the ma-

jority opinion relied upon Harper & Row. However, an

evidentiary presumption, such as that announced by this

Court in Harper & Row, has only a limited effect. Under

Fed. R. Evid. 301, “a presumption imposes on the party

18 On the other hand, The 2 Live Crew presented evidence that

their parody did not constitute either a present or future danger

to record sales of “Oh, Pretty Woman.” Petitioners made this

showing through the unrebutted affidavits of Oscar Brand and M.

William Krasilovsky, which are attached as Appendices to the Peti-

tion. Both experts testified that the potential customers for The 2

Live Crew parody and the original Acuff-Rose song are entirely

different and distinct.

against whom it is directed the burden of going forward

with evidence to rebut or meet the presumption, but does

not shift to such party the burden of proof in the sense

of the risk of nonpersuasion, which remains throughout

the trial on the party on whom it was originally cast.”

Thus, the federal courts, through Rule 301, have adopted

the “bursting bubble” approach to presumptions, under

which the presumption vanishes, and has no further pro-

bative effect, once it has been rebutted. 10 J. Moore &

H. Bendix, Moore’s Federal Practice § 301.04[4.-1] (2d

ed. 1988); Reeves v. General Foods Corp., 682 F.2d

515, 522 n.10 (Sth Cir. 1982); Legille v. Dann, 544

F.2d 1, 6-7 (D.C. Cir. 1976): In re The Yoder Company,

758 F.2d 1114, 1119-20 (6th Cir. 1985). In this case,

the presumption had been rebutted by Petitioners’ un-

contradicted affidavits. This factor should therefore have

been decided in Petitioners’ favor.

In focusing on scraps of precatory language from Sony

and Harper & Row, the Court of Appeals ignored the

analysis which was actually performed by this Court in

both of those cases. This Court found the “commercial

use” presumption to be rebuttable in Sony, the very case

in which it created the “commercial use” presumption.

Notwithstanding the statement relied upon by the court

below that “every commercial use of copyrighted material

is presumptively an unfair exploitation of the monopoly

privilege which belongs to the owners of the copyright,”

Sony, 464 U.S. at 451, this Court held that the “com-

mercial use” presumption had been rebutted through evi-

dence showing that the Sony respondents’ commercial

video technology had fair and legitimate uses. In Harper

& Row, the Court found no need to base its holding with

respect to the fourth test on presumed damage: “Rarely

will a case of copyright infringement present such clear-

cut evidence of actual damage.” Harper & Row, 471 US.

at 567." The “commercial use” presumption of Sony and

19 The Court further noted that, in direct contradiction to this

case, “the trial court found not merely a potential but an actual

effect on the market.” /d.

Harper & Row was not intended to, nor did it, overrule

sotto voce the traditional fair use protection afforded com-

mercial song parodies.

The Court of Appeals reversed the District Court on

the fourth statutory test despite the absence of any evi-

dence of actual or potential commercial harm. This effec-

tively created an irrebuttable presumption that commer-

cial use must always result in injury to the market for

the copyrighted work.” By focusing on the commercial

aspect of Petitioner’s work, the court below collapsed the

first and fourth factors, replacing them with a per se

test of commercial benefit.

The lower court’s holding that it would presume harm

to the copyright holder as the result of a commercial

parody, then find for the copyright holder on the basis

of that presumed harm, is inconsistent with the legisla-

tive history of the copyright statute. The Senate Report

accompanying the bill which became the Copyright Act

of 1976 concluded just the opposite—that even if it could

be demonstrated that a parody had supplanted a part of

the normal market for the copyrighted work, the parody

would not necessarily be construed as an infringement.

Senate Report at 61.

The idea that a parodist or satirist rather than the copy-

right holder should have the burden of showing that com-

mercial injury did not result from a parody or satire is

*° In fact, the other case principally relied upon by the majority

below, Rogers v. Koons, 960 F.2d 301, 312 (2d Cir. 1992), reached a

contrary conclusion. In that case, the Second Circuit expressly

recognized that the nature of the intended audience of even a direct

copy of a work could require that it be treated as a fair use. Accord-

ing to the Court, “fair use permits lyrics or music to be copied in a

literary magazine, but where the same material is published in a

song sheet magazine, purchased for playing and not simply for

reading, it is an unfair use.” 960 F.2d at 312. This distinction is

similar to the conclusion reached by the Petitioners’ expert, Oscar

Brand, who concluded that The 2 Live Crew’s parody was intended

for an entirely different audience than the original work, and could

not “affect the sales or popularity of the Orbison song, except to

stimulate interest in the original.” Petition App. D, § 19.

completely at odds with the realities of the music and

publishing industries. It is the copyright holder or pub-

lisher who has direct access to sales records and reports

of royalty revenues. If economic harm in fact has resulted

from a satire or parody, it could only be demonstrable

from those figures. It would be a double burden on the

parodist to require him or her to first obtain the relevant

data from the copyright holder through discovery, and

then to mount an affirmative case of “no harm” on the

basis of whatever data can be obtained through that

process.

2. The Presumption Employed by the Sixth Circuit

Will Have a Chilling Effect on Protected Speech.

A presumption such as that erected by the majority

below raises grave constitutional doubts when applied to

important forms of political and social expression such

as parody and satire.*' As this Court held in Speiser v.

Randall, 357 U.S. 513, 526, presumptions which shift the

burden of proof to an individual whose speech is claimed

to be unlawful are constitutionally suspect:

|W jhere particular speech falls close to the line sep-

arating the lawful and the unlawful, the possibility

of mistaken factfinding—inherent in all litigation—

will crease the danger that the legitimate utterance

wil! he penalized. The man who knows that he must

bring forth proof and persuade another of the law-

*! Courts have sometimes held that the First Amendment offers

no protection to copyright infringement, because the copyright laws

protect only the expression of an idea, and not the idea itself. See,

e.9., Sid & Marty Krofftt Television v. McDonald’s Corp., 562 F.2d

1157, 1169-71 (9th Cir. 1977). However, at least one commentator

has taken vigorous exception to this result where parody directly

mocks or criticizes a copyrighted work. C. Goetsch, “Parody as

Free Speech—The Replacement of the Fair Use Doctrine by First

Amendment Protection,” 3 W. New England Law Review 39 (1980).

Courts have also found that the fair use doctrine contains a public

policy component with distinct First Amendment overtones. See.

e.g., Berlin; Rosemont Enterprises, Inc. v. Random House, Inc., 366

F.2d 303 (2d Cir. 1966); and Keep Thompson Governor Comm. v.

Citizens For Gallen Comm., 457 F. Supp. 957 (D.N.H. 1978).

fulness of his conduct necessarily must steer far wider

of the unlawful zone than if the State must bear these

burdens. This is especially to be feared when the

complexity of the proofs and the generality of the

standards applied . . . provide but shifting sands on

which the litigant must maintain his position. .

“It is apparent that a constitutional prohibition can-

not be transgressed indirectly by the creation of a

Statutory presumption any more than it can be vio-

lated by direct enactment. The power to create pre-

sumptions is not a means of escape from constitu-

tional restrictions.”

The rule enunciated in Speiser has also been applied

by this Court in litigation between private parties where

that litigation impinged on First Amendment values.

Most notably, in New York Times Co. v. Sullivan,

376 U.S. 254, 279 (1964), this Court relied on Speiser

in holding that a state libel law which placed on critics

of public officials the burden of showing their statements

to be true was unconstitutional. See also Freedman v.

Maryland, 380 U.S. 51 (1965) (burden of showing ob-

scenity must rest with the censor). Thus, in a wide vari-

ety of arenas, presumptions which shift the burden of

proof to a speaker, artist, or writer have been disap-

proved by this Court. The idea expression dichotomy

ordinarily employed to separate copyright decisions from

First Amendment concerns provides no logical basis for

reaciiing a different conclusion in setting fair use stand-

ards for parody and satire.

This Court should recall its perceptive observation in

Sony that “[w]hile the law has never recognized an

author's right to absolute control of his work, the natural

tendency of legal rights to express themselves in absolute

terms to the exclusion of all else is particularly pro-

nounced in the history of the constitutionally sanctioned

monopolies of the copyright and the patent.” 464 US.

at 432 n.13. For this reason, it is important that the

Court announce, in the strongest terms, the rights of the

parodist; otherwise. those who practice parody and satire

will inherit a legacy of litigation and cost:

There is no constitutional restraint on the copyright

owners as to either their proprietary interpretation

or their power to sue alleged infringers who disagree

with their interpretation. The binding interpretation

of copyright is thus up to the courts. That interpre-

tation should be made not only in terms of the word-

ing of the statute, but also in light of the free speech

clause.

Patterson & Lindberg, supra, at 133.

3. The Argument That a Parody Interferes With

the Right of a Copyright Owner To Profit From

Its Own Parodies Is Without Merit.

A crucial link in the reasoning of the Sixth Circuit

that a parody must always cause economic harm to a

parody would impair the market for parodies by the copy-

right holder. Its reasoning on this issue was 1) copy-

right owners have rights in derivative works as well as

the original work; and 2) parodies are derivative works:

therefore 3) copyright owners have rights in parodies of

their own work which will be injured by the issuance of

unlicensed parodies. Acuff-Rose II, 972 F.2d at 1439.

However, the second element of this syllogism is false:

parodies are, under section 107, not derivative works. but

rather “comment” and “criticism” on a work. The weak-

ness in the Court’s reasoning can be seen if one substi-

tutes musicel or theatrical criticism for parody. Assume

that the New York Times writes a criticism of a copy-

righted play. Clearly, this criticism is prepared and pub-

lished for commercial purposes, i.e., to sell newspapers

and newspaper advertising. Could it then be said that

the Times review was a copyright infringement because

it unfairly interfered with the author's right to criticize

his own work? This would truly be a remarkable result:

yet it seems to be the result mandated by the majority's

opinion. Needless to say, few if any of the great parodies

of the past would ever have been written had the copy-

right holder of the original been the only person em-

powered to write them.

Of course, a different issue would arise if a reviewer

or parodist simply intended to appropriate the original

work. Harper & Row, 471 U.S. at 550. But this issue

does not arise here, since the majority opinion of the

court below has already determined The 2 Live Crew’s

intent to be parody, not piracy. Acuff-Rose II, 972 F.2d

at 1435.

4. A Failure To Base Infringement Decisions on

Proof of Economic Harm Will Lead to Regula-

tion of Parody Based on the Popularity and

Political Acceptability of the Parodist.

The fair use test enacted by Congress necessarily places

this Court in the position of formulating specific fair use

rules through a balancing of competing values. Even

more than other courts which have considered the issue,

the Sixth Circuit has tipped the balance too far in the

direetion of the copyright holder and against the free flow

of comment and ideas. This Court should announce a

test which restores that balance.

Proponents of the view that commercial parody is not

protected as a fair use should take little comfort in the

case law cited in support of that view. These cases lack

any meaningful intellectual underpinning: on analysis, the

only principal which can be gleaned from them is that un-

popular, pornographic, tasteless or underfunded parodists

may lose infringement suits, particularly if, as in this

case. they have the misfortune to be sued in the home-

town of the copyright holder.

The arbitrariness with which these decisions have been

made can best be seen by contrasting Loew’s, Inc. v.

Columbia Broadcasting System, Inc., 131 F. Supp. 165

(S.D. Cal. 1955), aff'd sub nom., Benny v. Loew's, 239

F.2d 532 (9th Cir. 1956), aff'd sub nom., Columbia

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

(affirmed per curiam by an equally divided Court) (ques-

tioning whether there was any viability to parody defense

to copyright infringement)* with the decision reached

*2 At the Circuit Court level, the decision in Loew's was upheld

in part on the following rationale: “up to the time of the present

by the same District Court only months later in Colum-

bia Pictures Corporation v. NBC, 137 F.Supp. 348 (S.D.

Cal. 1955) (upholding a Sid Caesar burlesque of “From

Here to Eternity” as a fair use). Unfortunately, in clearly

retreating from his earlier decision in Loew’s, Judge

Carter chose to couch the distinction in terms of the fact

that Sid Caesar only “conjured up” an appropriate

amount in his parody, unlike Jack Benny, who presumably

“over-conjured.”” This inserted into the law of fair use

an extraordinarily subjective element which, unsurpris-

ingly, has often been used to strike down parodies which

fall outside the mainstream.

When the Ninth Circuit next addressed this issue in

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

(9th Cir. 1978), cert. denied, 439 US. 1132 (1979) it

backed away from much of the substance of Benny,”

but still found itself engaged in a murky examination of

how much is too much. Faced with a comic book parody

in which characters resembling Mickey Mouse and his

compatriots were committing sexual acts, the Court en-

gaged in an examination of how accurate the likenesses

were and what level of caricature crossed the line of

fair use.

Pornographic parody was again central to two deci-

sions denying fair use status to a parody in the Second

Circuit. In Walt Disney Productions v. Mature Pictures

controversy, no federal court in any adjudication, has supposed that

there was a doctrine of fair use applicable to copying the substance

of a dramatic work and presenting it, with a few variations, as a

burlesque.” Benny v. Loew's, Inc., 239 F.2d 532, 536 (9th Cir.

1956).

** The Court's treatment of Benny hardly stands as a ringing

affirmation of that decision: “The language in Benny concerning

the substantiality of copying can be given a reading much more in

keeping with the context of that case and the established principals

at the time of that case if the opinion is understood as setting a

threshold that eliminates from the fair use defense copying that is

virtually complete or almost verbatim.” Air Pirates, 581 F.2d at

756. “Thus Benny should stand only as a threshold test that elimi-

nates near verbatim copying.” Jd. at 758.

Corporation, the use of portions of the Mickey Mouse

March in a film entitled “The Life and Times of the

Happy Hooker” was found to be an infringement on the

grounds that “defendants used the song over and over

again for substantially more time than is required to

‘conjure up the original.” 389 F. Supp. 1397, 1398

(S.D.N.Y. 1975). In MCA, Inc. v. Wilson, 672 F.2d

180, 185 (2nd Cir. 1981), the Court confronted a sex-

ually oriented take-off on the song “Boogie Woogie Bugle

Boy of Company B” by stating:

We are not prepared to hold that a commercial com-

poser can plagiarize a competitor's copyrighted song,

substitute dirty lyrics of his own, perform it for com-

mercial gain, and then escape liability by calling the

end resu't a parody or satire on the mores of society.

As Judge Mansfie!d’s powerful dissent points out, that

decision was reached by trampling the standards previ-

ously set by the Second Circuit in Berlin and Elsmere

solely because of the content of the parody:

We cannot, under the guise of deciding a copyright is-

sue, act as a board of censors, outlawing X-rated per-

formances. Obscenity or pornography play no part

in this case. Moreover, permissible parody, whether

or not in good taste, is the price an artist pays for

success, just as a public citizen must tolerate more

personal attack than the average private citizen.

Id. at 191.

In summary, a consideration of the statutory factors

with an eye to the nature of parody leads inexorably to

the conclusion that the parody in question was a fair

use. The Sixth Circuit’s contrary conclusion is unsup-

portable on this record.

CONCLUSION

The 2 Live Crew and the amici purvey strikingly dif-

ferent versions of satire and parody. But legal interpre-

tations aimed at unconventional or peripheral behavior

must be evaluated in light of their potential impact on

speech which is at the heart of protected political dis-

course. However offensive the lyrics of “Pretty Woman”

may strike some, it is not possible to subject them to

censorship by copyright without imperiling a vibrant

source of political speech which has flourished since the

founding of the Republic.

Today, when political disputes frequently lead to short

tempers and frayed nerves, political song parodists con-

tinue to serve the same purpose which historian Vera

Brodsky Lawrence ascribed to them during the Civil War:

People on both sides of the battle lines placed great

reliance on the songs, finding in them a source of

strength. courage, hope, much-needed laughter, and

a general escape valve for the unbearable tensions of

their lives... .

Lawrence, supra, at 341.

The Sixth Circuit has fashioned an interpretation of

fair use, based almost entirely on the admitted fact that

Petitioners are in the business of selling their record

albums, that completely overturns the traditional protec-

tion afforded satire and parody. This crabbed interpreta-

tion of fair use disregards other critical values which

Congress intended to be weighed.

Withdrawing protection for commercial parody and

satire eviscerates fair use. This Court should reverse the

lower court decision, and thereby affirm the historic role

of these art forms in vitalizing political, social, and cul-

tural discourse.

Dated: May 28, 1993

Respectfully submitted,

WILLIAM C. LANE *

DAVID CHARLES MASSELLI

TRACY ANN ROMAN

MASSELLI & LANE, P.C.

8260 Greenboro Drive

Suite 260

McLean, Virginia 22102

(703) 556-9550

Counsel for Capitol Steps

Productions, Inc., Mark

Russell, Barret E. Hansen,

Bruce W. Kerr, Nancy

Holson, and Michael R. Huey

* Counsel of Record

APPENDICES

;

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mi,

APPENDIX A

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1992

No. 92-1292

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

CHRISTOPHER WONGWON, a/k/a FRESH Kip Ice,

MarK Ross, a’k ‘a BROTHER MARQUIS,

Davip Hosss, a/k/a Mr. Mixx;

professionally known as THE 2 LIVE CREw;

LUKE SKYYWALKER RECORDS,

-. Petitioners,

ACUFF-ROSE Music, INC.,

Respondent.

DECLARATION OF WILLIAM A. STRAUSS

1. My name is William A. Strauss. | am a Vice

President and Director of Capitol Steps Productions, Inc.,

a Virginia corporation, and the paid, full time artistic

director and co-lyricist for “The Capitol Steps,” the com-

pany’s musical and theatrical troupe. I have been with

the troupe since its inception at a Christmas party on

Capitol Hill, and have been a director and officer of the

corporation “nce its formation. I am also an attorney

and a member of the Bar of the District of Columbia.

2. The Capitol Steps have been performing in the

Washington, D.C. area and nationally for eleven years.

The group regularly performs on national network radio

and television, including on such shows as “Nightline”

and “Good Morning America,” and at live shows around

the country. The Capitol Steps produce and sell record-

ings of their songs and live performances. The group has

performed for, and at the invitation of President Reagan

and President Bush (five times). We have also performed

for President Clinton, for judicial conferences, and for

probably three quarters of all current Members of Con-

gress, none of whom have ever expressed to me the opin-

ion that we were in violation of the copyright law. Both

President and Mrs. Bush, many Members of Congress,

and various Cabinet members have appeared on stage

with us in our performances.

3. A Capitol Steps performance consists primarily of

song parodies of copyrighted songs. The parodies, which

generally have a high current political content, range in

length from a few bars to an entire parody rendition.

Recent examples are “I Wanna Be Your Pander Bear,”

to the tune of “Teddy Bear,” a satirical jab at President

Clinton; “Why Not Take Al and Me,” to the tune of

“Why Not Take All of Me,” an often-updated barb at

the Clintons and Gores; and “Day Care,” to the tune of

“Day-O,” a look at the difficulties faced by President

Clinton’s nominees for Attorney General. Government

Officials have frequently brought visiting foreign officials

to the Steps’ shows as a jovial way of demonstrating the

role of free speech in the American political process;

Capitol Steps songs have also been broadcast on the

Voice of America.

4. Our performances are a continuation of a long

American tradition of musical parody. I have caused to

be lodged with the Clerk of this Court, as Exhibit 1 to

this declaration, a recording produced by The Capitol

Steps entitled “From Yankee Doodle to Pander Bear:

A History of American Musical Parody.” The recording

contains excerpts from 66 of our nation’s most memor-

able and historically significant musical parodies. We

produced the tape as a tribute to those who wrote and

sang these songs, and as a teaching aid for teachers of

American history in secondary schools and colleges.

Exhibit 2 to this declaration is a list showing source

material from which the songs heard on the tape and

information regarding them were drawn.

5. The Capitol Steps do not seek or obtain licenses

from copyright owners for two reasons. First, we have

been advised by counsel that our songs constitute a “fair

use” of the copyrighted material we use, and for which

we give full, album-jacket credit to the original authors

and composers. See the album notes to our twelfth and

most recent album, “The Joy of Sax,” submitted as Exhi-

bit 3 to this declaration. Second, we have found that,

in the business of social or political satire, obtaining per-

missions from song publishers is, for all practical pur-

poses, impossible.

6. On one occasion, the producers of a network tele-

vision show, against our advice, tried to get publisher

permission to perform seven of our songs. After much

time and discussion, permission was denied in six of the

seven cases.

7. Asking permission for such uses is interpreted by

music publishers as seeking their endorsement of the

political ideas contained in our lyrics. Many copyrights

are controlled by large corporations, such as Sony or

Walt Disney, which have ongoing issues and relation-

ships in Washington. These companies have no interest

in endorsing barbed political satire directed at Members

of Congress, the President, or even the federal judiciary.

Nor do we wish to submit our lyrics to them for censor-

ship. On the other hand, if we do not seek or obtain per-

mission, then the ideas and lyrics of our songs—good or

bad—are solely ours. And prior to the issuance of the

Acuff-Rose decision by the Sixth Circuit Court of Ap-

peals, no one had ever sued us for copyright infringement.

8. In our experience, song parodies cause no real or

discernable harm to song publishers. People who book

Capitol Steps shows, sit in our audiences, or buy our

albums and tapes are interested in political satire, not in

listening to melodies. Similarly, it is impossible for me

to imagine someone who would be dissuaded from buy-

ing the original version of “Oh, Pretty Woman” because

he already owned The 2 Live Crew’s parody of that song.

9. Finally, the very nature of social and political sa-

tire makes it impossible to obtain timely permission. The

Capitol Steps perform up-to-the-minute political satire

based on current political events; the process of asking

for and receiving permission would make it impossible

for us to perform the kind of current repertoire which our

audiences have come to expect.

10. I have carefully read the opinion issued by the

Sixth Circuit Court of Appeals in this action. I am fear-

ful that this opinion, unless reconsidered, would energize

those who for whatever reason—including distaste for

controversial ideas and opinions—may wish to quash

song parodies as a popular form of political expression.

Attached as Exhibit 4 to this declaration is a letter I

received this month from Linda Santiago, Director, Copy-

right Administration for EMI Music Publishing, a British

company that has become one of the largest copyright

holders of American songs. The letter alleges that, simply

because we sell our records, CDs, and tapes, our parody

of songs such as “If I Only Had a Brain,” from The

Wizard of Oz is not a fair use. I believe that this letter

may well represent the first tangible effect on The Capi-

tol Steps of the Court of Appeals decision in Acuff-Rose.

I make the foregoing declaration under penalty of per-

jury this 26 day of May, 1993.

s’ William A. Strauss

WILLIAM A. STRAUSS

EXHIBIT 2

Source Information for Song Parodies on Audio Tape—

“From Yankee Doodle to Pander Bear:

A History of American Musical Parody”

“American Spirit,” “Jeffersonian’s Song,” and nonsense

stanza, parodies of “Yankee Doodle”

I. Silber, Songs America Voted By 22, 25 (1971).

V. Lawrence, Music for Patriots, Politicians, and

Presidents 33 (1975).

See also §. Foster Damon, Yankee Doodle (1959),

a book devoted entirely to “Yankee Doodle.”

Untitled parody (“Squish Into the Deep. . .”) of “Hosier’s

Ghost”

Lawrence, supra, at 45.

“Liberty Song” and its untitled Tory parody (“Such Vil-

lains.. .”), both parodies of “Heart of Oak”

Id. at 26, 30.

Untitled parody (“In Bedlam Lofty. . .”) of “The British

Grenadiers

Id. at 36.

“American Parody” of “Rule Britannia”

Id. at 50.

“The Battle of the Kegs” parody of “Maggy Lauder”

Id. at 77.

“To Genet in New York” parody of “The Anacreontic

Song”

Id. at 129.

See also Filby and E.G. Howard, Star Spangled

Books (1972), about the “Star Spangled Banner.”

“My Country ‘tis of Thee,” and “Rights of Woman,”

parodies of “Sally in Our Alley”

J.T. Howard, Our American Music 127 (1965).

Lawrence, supra, at 130, 262-63.

Untitled parody (“Those Hardy Knaves. . .”) of “Nancy

Dawson”

Lawrence, supra, at 75.

“Tip and Ty” parody of “Little Pig’s Tail”

Id. at 268-69.

“The Log Cabin and Hard Cider Candidate,” and “Bullet

Proof,” parodies of “Auld Lang Syne”

Silber, supra, at 40, 42.

For a general history/collection of song parodies

from the 1840 campaign, see Lawrence, supra, at

265-99.

Untitled Whig parody (“Old Tip He Wears. . .”) of

“Yankee Doodle”

Id. at 282.

“Two Dollars a Day and Roast Beef” parody of “Rosin

the Beau”

Silber, supra, at 52.

“Old Zack Upon the Track” parody of “Old Dan Tucker”

Id. at 57.

For general information on Steven Foster, see also

Howard, supra, at 184-98.

“Democratic Song” parody of “Oh! Suzannah”

Silber, supra, at 65-66.

“Lincoln and Hamlin” parody of “Wait for the Wagon”

Id. at 82.

“A New Yankee Doodle” parody of “Yankee Doodle”

Republican Campaign Songster for 1864 15 (1864).

“Union Dixie” parody of “Dixie”

Silber, supra, at 85.

For information about Abraham Lincoln, see Law-

rence, supra, at 427.

“John Brown’s Body,” “Battle Hymn of the Republic,”

and “White So'dier’s Song,” all parodies of “Say, Brothers,

Will You Meet Us?”

Lawrence, supra, at 357, 362-63.

Silber, supra, at 87-88.

Howard, supra, at 258.

“Wide-Awake Yankee Doodle” parody of “Yankee

Doodle”

Silber, supra, at 75.

“Good-By! Andy!” parody of “Jim Crack Corn”

Lawrence, supra, at 449.

Untitled (“Oh! Hearken to the glorious news. . .”) and

“When the Johnnies Get Into Power,” parodies of “When

Johnny Comes Marching Home Again”

Silber, supra, at 99, 116-17.

“His Grandfather’s Hat” parody of ““Grandfather’s Clock”

Id. at 145.

“Now I am the Leader of the Democracee” parody of

“When I Was A Lad”

Id. at 119-20.

“Grover’s Veto,” and “The White House Tom-tit” paro-

dies of “Tit Willow”

Id. at 138, 182.

“Bryan Walked off with the Coveted Prize” parody of

“The Band Played On”

Republican Campaign Parodies and Songs 5 (1896).

“A New National Anthem” parody of “America”

Silber, supra, at 154.

“Sing a Song of Labor” parody of “Sing a Song of Six-

pence”

Republican Campaign Parodies and Songs 5 (1896).

Colorado Republican parody of “Oh, Dear, What Can the

Matter Be?”

Silber, supra, at 163.

Untitled parody (“I Had a Job Once. . .”) of “Ta-ra-ra

Boom-de-ay”

B. Stavis, et al., Songs of Joe Hill 22 (1960).

“We Will Sing One Song” parody of “My Old Kentucky

Home”

Id. at 24.

“We're All So Glad to Breathe the Air Again” parody of

“When Johnny Comes Marching Home Again”

A Collection of Republican Parodies (1920).

“Eight Long Years of the Democrat Mule” parody of

“The Erie Canal”

Library of Congress, Harding Hobart Campaign

Folder (1920).

“Kansas Suffrage Song” parody of “Old Dan Tucker”

Silber, supra, at 228.

“Keep Woman in Her Sphere” parody of “Auld Lang

Syne”

I. Silber, “A Brief History of the Woman’s Suffrage

Movement” Folkways Records, Album No. FH 5281

(1958), at 4.

“Kiss Yourself Goodbye!” parody of “Coming Through

The Rye”

Silber, Songs America Voted By 259 (1971).

“That's Why We're Voting for Roosevelt” parody of

“Marching Through Georgia”

Id. at 266.

See also, T. O'Dowd, 1936 Franklin Roosevelt Song

Book (1936).

“Landon, Oh, Landon” parody of “Oh! Suzannah”

Silber, supra, at 262-63.

Also, for a description of Hearst’s parody writing

contest, see id. at 263.

Untitled parody (“Frankin’s Had More. . .”) of “Oh,

Dear, What Can the Matter Be?”

Silber, supra, at 275.

“Fare You Well” parody of “Tavern in the Town”

Td. at 275-76.

“Good Night, Perkins” parody of “Good Night, Ladies”

Id. at 278.

“Mister Congressman” parody of “Little Brown Jug”

W. Hille, ed., The People’s Song Book 117 (1948).

“The Scabs Crawl In” parody of “The Worms Crawl In”

Id.

Parody with the same title of “I'm Just Wild About

Harry”

Silber, supra, at 282.

“Adlai’s Gonna Win This Time” parody of “Get Me to

the Church on Time”

Id. at 292.

Special campaign parody version of “High Hopes”

Id. at 295.

“Hello, Lyndon” parody of “Hello, Dolly”

Id. at 297.

Untitled parody (“Oh, He Runs Hot. . .”) of “Yankee

Doodle”

J. Harris, lyrics. Published by A. A. Records &

Harry Stoones, Inc. (1964).

Modern parody of “Hallelujah, I’m a Bum!”

B. Dane, et al., “Songs of the G.I. Resistance” (rec-

ord album lyric sheet) (1970).

“Hark When Gerald Ford Was King” parody of “Hark,

the Herald Angels Sing;” “Ol’ Man Gipper” parody of

“Ol Man River;” “I Wanna Be Your Pander Bear” par-

ody of “Teddy Bear”

The Capitol Steps.

10a

EXHIBIT 4

EMI MUSIC PUBLISHING

810 Seventh Avenue New York, NY 10019

Linda Santiago

Director, Copyright Administration

May 4, 1993

Mr. Bill Strauss

Capitol Steps Productions

15C5 King Street

Alexandria, VA 22314

Dear Mr. Strauss:

[ apologize for this delayed response with respect to

whether or not your use of our songs is considered parody

or fair use.

I sent your package to our attorney. Frederick Silber, and

there is no question that your use of the songs is not fair

use. You included those parodies on LP’s cassettes and

CD’s which are being sold.

The fair use of a copyrighted work, for purposes such as

criticism, Comment, news reporting, teaching, scholarships

or research is not an infringement of copyright. How-

ever, once that use is of a commercial nature it is no

longer considered fair use.

I am requesting a complete and thorough listing of all

EMI songs that you have included on recordings, to-

gether with record numbers, LP titles, release dates, etc.

If I don’t receive such list within a week of your receipt

of this letter, legal action will be taken. If you have any

questions you can contact Frederick Silber directly at

212-492-1248.

Sincerely,

s Linda Santiago

- LINDA SANTIAGO

cc: Landry, Rosenthal, Silber

lla

APPENDIX B

IN THE SUPREME COURT

OF THE UNITED STATES

October Term, 1992

No. 92-1292

LUTHER R. CAMPBELL, a k a LUKE SKYYWALKER,

CHRISTOPHER WONGWON, a Kk a FRESH Kip Ice,

Mark Ross, a k a BROTHER MARQUIS,

Davip Hosss, a/k/a Mr. MIxx;

professionally known as THE 2 Live CREw;

LuKeE SKYYWALKER RECORDS,

Petitioners,

VS.

AcuFF-Rose Music, INC.,

Respondent.

DECLARATION OF MARK RUSSELL

1. My name is Mark Russell. I am a political satirist.

2. I have been performing in the Washington, D.C.

area and nationally and internationally for nearly 40

years. I have regularly appeared on national network

radio and television For the past 18 years I have ap-

peared on an every-other-month basis on the “Mark

Russell Comedy Specials” on public television. I have

appeared on nearly every national news show. I have

been a regular contributor to “Good Morning America”,

and was a co-star of the NBC show “Real People”.

3. I also appear in concert around the country. In

1992, alone, I appeared in more than 130 shows in 30

states, including those of the Sixth Circuit. I have ap-

peared before the American Bar Association, the National

Association of Broadcasters, and the Federal Communi-

cations Commission. I have appeared before, and at the

12a

behest of nearly every president and vice president since

Lyndon Johnson. | have also appeared at events at the

request of former Chief Justice Warren Burger, numer-

ous members of Congress, presidential candidates, gov-

ernors and state representatives of both parties.

4. I trace my start in political satire to the suggestion

cf members of Congress and their staffs. In 1958, I was

performing the works of others, including Tom Lehrer,

in the Carroll Arms Hotel, in Washington. Since it was

the closest bar to the Hill, it was where many Congress-

men and their staffs ended their day. It was here that I

began singing and talking about the events in Congress.

As I wrote in the introduction to Presenting Mark Rus-

sell (Everest House Publishers, 1980), “‘my act is basically

the same as it has been since 1961: only the names, as

they say, have been changed to protect the retired and

deceased.”

5. Along with spoken material, | perform song paro-

dies, to both copyrighted and original melodies. A cur-

rent parody of a copyright work is “Disney” to the tune

of “High Ho, High Ho” from Walt Disney’s “Snow White

and the Seven Dwarves.” This song is a commentary on

recent reports that during the McCarthy period of the

1950s. Walt Disney had reported to various federal au-

thorities on the activities of individuals he believed to

be subversive.

6. I do not seek nor do I obtain license from copy-

right owners for several reasons. First, | have been ad-

vised that my use of copyrighted songs constitutes “fair

use” of the copyrighted material. Second, the very nature

of sociel and political satire makes it impossible to obtain

timely permission. When, for instance, it’s known that

the President has spent $200 on a haircut, it is not possi-

ble to wait more than the few hours necessary to write

and memorize “He Looked Pretty” to the tune of “I

Feel Pretty.” When the video tape of the Rodney King

beating became known, it was not possible to wait for

more than the few hours necessary to write and memorize

13a

“On The Streets of LA” to the tune of “On the Street

Where You Live.”

7. It is not possible to wait for permission because at

7 or 8 pm on a Friday evening there is no way to get in

touch with someone who might be able to get in touch

with someone from whom permission might be obtained:

the story may not last more than one day-——in which case

the exercise of getting permission would be moot; and

because audiences have come to expect comment in song

on the topic of the day from me. To wait for permission

means to disappoint an audience—something that I, as a

professional performer would try never to do. On the

rare occasion when permission has been requested it was

denied. On one particular occasion, NBC made the re-

quest of the Disney Studios that just the first notes of

its copywritten song ““Chim-Chimney” be used to start my

song about Gary Hart's trip to Bimini. I started my

song “Bim-bimini”.

8. Asking permission would also be interpreted by

music publishers as a request for an endorsement of the

political ideas contained within the lyrics. Since the com-

ments contained within a song are mine, no endorsement

is needed or wanted. In my nearly 40-year career I have

never been sued for copyright infringement; nor has any-

one ever claimed to be injured by what I have said or

sung.

9. I see no real or discernable harm to song publishers

from my performances. People who book Mark Russell,

or purchase a ticket to one of my concerts or tune in to

my television show do so because they want to hear what

I am saying or singing about the current political scene.

They are less interested in the song I parody; other than

perhaps some in the audience will get the intended pun.

Rather the audience is interested in what I am saying with

the lyrics. whether they agree with the viewpoint or not.

In addition, and most important, they are there to be

entertained.

l4a

10. I have read the opinion issued by the Sixth Circuit

Court of Appeals in this action. I am concerned that

this opinion may cause colleges and organizations within

the Sixth Circuit’s jurisdiction who have considered book-

ing me to look else where to fulfill their entertainment

schedule rather than take the chance of becoming em-

broiled in a legal controversy. I also see a situation

whereby | could sing a song in one state but not another.

if this opinion were allowed to stand.

I make the foregoing declaration under penalty of per-

jury this 27 day of May, 1993.

/s’ Mark Russell

MARK RUSSELL

15a

APPENDIX C

IN THE SUPREME COURT

OF THE UNITED STATES

October Term, 1992

No. 92-1292

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

CHRISTOPHER WONGWON, a K a FRESH KID ICE,

MarK Ross, a k a BROTHER MARQUIS,

David Hoses, aka Mr. Mixx:

professionally known as THE 2 Live Crew;

LUKE SKYYWALKER RECORDS,

- Petitioners,

ACUFF-RosE Music, INC.,

Respondent.

DECLARATION OF BARRETT E. HANSEN,

p ka “DR. DEMENTO”

1. My name is Barret E. Hansen; I am professionally

known as “Dr. Demento.” Since 1970, I have conducted

a weekly radio program consisting primarily of humorous

songs. The program has been nationally syndicated since

1974, and is currently heard on approximately 100 sta-

tions, plus the Armed Forces Radio Network. In Wash-

ington, the program is heard weekly on WHFS-FM.

2. Parody songs have been a major part of the pro-

gram from the beginning, and have become even more

popular in recent years. Since my program is probably

the major radio outlet for humorous songs in the United

States, | receive dozens of taped parodies each month.

3. In addition to parodies by recognized artists such

as “Weird Al” Yankovic and The Capitol Steps, I receive

many parodies contributed by amateur and semi-profes-

l6a

sional artists from all walks of life. Some of these have

become quite popular with my listeners.

4. I should explain that when I use the terms “paro-

dies,” or “parody songs,” I include any kind of humorous

song which uses an existing melody and original words

to make a comment—whether the comment is directed at

the underlying song or its performer, or at some political

or social issue. Parody has proven especially fruitful as

a vehicle for social and poliitcal commentary; of the more

than 100 songs I received concerning the recent Persian

Gulf conflict, the vast majority were parodies.

5. In the course of conducting my radio program, |

am often in contact with parody aritsts, both amateur and

professional, from around the country. As a result, I am

probably as knowledgeable about current trends in musi-

cal humor generally, as anyone in the country. The state-

ments I make in this declaration are based on that ex-

perience.

6. To begin with, the notion that permission for musi-

cal parodies is easy to obtain, or even obtainable at all

in many cases, is simply not true. I have received many

letters from people who have written song parodies, and

have submitted them to the publishers of the originals

before attempting to distribute them to me or anyone else

in radio—mostly because they had read that Al Yankovic

does it that way. Unfortunately, even those publishers

openminded enough to give consent for an Al Yankovic

parody (with its considerable income potential) are rarely

inclined to give similar consent to an unknown parodist,

whatever the merits of the parody.

7. Even Al Yankovic himself got his foot in the door,

so to speak, by doing unlicensed parody early in his

career. It was only after his songs gained airplay (mainly

on the Dr. Demento Show), and one of them was re-

leased on record (thanks to the lucky chance that a

member of the group being parodied happened to hear the

parody on my program, and had an ample sense of

humor) that Yankovic began to gather the “clout” to

17a

have whatever negotiating power he now has. More-

over, even with his track record, Al has been turned

down many times by publishers.

8. Second, I cannot see how a parody song could

reach a wide audience today through strictly “‘noncom-

mercial” means. The Dr. Demento Show, for example, is

a commercial enterprise; and when people record and

sell songs their purpose is generally at least in part com-

mercial. To say that commercial parody cannot occur

without permission from the copyright holder is for prac-

tical purposes the same as saying that no parody can

occur without such permission.

9. The overly cautious and humorless attitude of

music publishers has deprived the world of a chance to

hear many truly excellent parodies through the years.

An especially galling example, in my opinion, was the

refusal of the copyright owners of My Fair Lady to grant

permission to the late Allan Sherman to record his paro-

dies of songs from that musical. Giving publishers the

right to act as arbitrary censors, as that publisher did, is

not consistent in my opinion with the American tradition

of free speech and expression.

I make the foregoing declaration under penalty of per-

jury, this 7th day of May, 1993.

‘s/ Barret E. Hansen

BARRET E. HANSEN

p/k/a Dr. Demento

18a

APPENDIX D

IN THE SUPREME COURT

OF THE UNITED STATES

October Term, 1992

No. 92-1292

LUTHER R. CAMPBELL, a k a LUKE SKYYWALKER,

CHRISTOPHER WONGWON, a’k/a FRESH Kip ICE,

MarkK Ross, a’k a BROTHER MARQUIS,

Davip Hosss, a’k/a Mr. Mixx:

professionally known as THE 2 LIVE CREw;

LUKE SKYYWALKER RECORDS,

- Petitioners,

ACUFF-RosE Music, INC..

Respondent.

DECLARATION OF BRUCE W. KERR

1. My name is Bruce W. Kerr, p ka “Loose Bruce

Kerr.” Although I am a lawyer, licensed to practice law

in Wisconsin, since 1972 | have made my living as a

singer, songwriter, and song parodist in Mountain View,

California.

2. I perform in several clubs in the area, as well as

before groups such as the Kiwanis and Chamber of Com-

merce. I currently receive radio airplay for my musical

parodies of politics and society on shows such as “The

Rush Limbaugh Program” (song: “The Twelve Days of

Clinton”), “The Dr. Demento Show” (song: “The

Ballad of Woody & Mia”), the Jim Bohannon Show, and

the CBS Radio Satellite Network. My parodies have

closed out network news programs (e.g., “Gorby,” CNN

Network News, June 1990), have been heard on the

Armed Forces Network (“Scudbusters”), and have re-

19a

ceived other forms of coast-to-coast radio and television

coverage.

3. In 1977, | founded a music publishing company,

“Marjorie Music Co.,” which holds the copyright to my

parody lyrics. In 1987, | founded a record company,

“Broken Records,” in response to receiving extensive

radio airplay in California of a musical parody called

“Walk Like a Deukmejian.” The song was a parody of

the number one hit song, “Walk Like an Egyptian,” and

concerned the political disputes between California’s then-

Governor and the former Chief Justice of the California

Supreme Court, Rose Bird, who had just been ousted

from office by the electorate. I recorded “Walk Like a

Deukejian,” and began receiving airplay for it, without

applying for or receiving a copyright license.

4. After my parody began receiving airplay in Cali-

fornia, | was contacted by the copyright holder of the

original work, Peer International Corp., which demanded

that I apply for a license to continue using my parody.

They told me that they had already granted one license

to “Walk Like an Egyptian,” but had denied another.

1 did apply for a license, and after a six week wait

learned that my application had been approved, but only

on condition that I sign over all rights to my lyrics to

Peer International. Since I| certainly did not have enough

money to engage in a legal battle with a music publisher,

I agreed. Attached is a copy of my contract with Peer

International Corp.

5. Another incident occurred in 1989, when I wrote

a parody of Joni Mitchell's song, “Woodstock.” My

parody was called “Oldstock,” and described how the

“Woodstock generation” had aged in the twenty years

since the festival had taken place. After submitting an

audio tape of “Oldstock” to VH-1, a music video net-

work, I was_told that they would be interested in using

the parody if I could secure permission from the copy-

right holder. I made application to Siquomb Publishing

Co., which held the copyright to the original, but after

20a

a delay in which they apparently submitted my lyrics to

Ms. Mitchell for her review, permission was denied.

6. As a result of these and other experiences, I now

perform parodies without seeking or obtaining copyright

license. I avoid applying for such licenses because such

applications are generally a waste of time, and | fear

that a denial of a license might make subsequent airplay

of the parody appear to be intentional infringement, and

become the basis of legal action. Moreover, the time

delays involved in applying for copyright permission are

incompatible with the creation of song parodies relating

to current events. It took me six weeks to receive per-

mission for “Walk Like A Deukejian;” but I have had

song parodies rejected for radio airplay because they were

“one day stale.”

7. It is my experience that, because of its peculiar

nature, parody is sometimes the only effective vehicle to

express a given satirical opinion of a current event, or to

give voice to a commonly held public view on an issue. It

seems to me that we should not let the copyright owner

of a work that is sometimes a part of what is being

mocked or commented upon disallow that expression.

This specific collateral use of an “underlying work,”

which we call parody, should be kept free in a society

which wishes to stay so.

I declare that the foregoing is true, to the best of my

knowledge and belief, under penalty of perjury, this 18th

day of May 1993.

‘s/ Bruce W. Kerr

Bruce W. KERR

2la

EXHIBIT |

Date: 2/23 87

PEER INTERNATIONAL CORPORATION

1740 Broadway

New York, New York 10019

Gentlemen:

We hereby confirm our request for your permission to

use your copyrighted musical composition entitled,

WALK LIKE AN EGYPTIAN composed by Liam

Sternberg, as outlined below:

As your employees-for-hire I will compose a parody

under the title, WALK LIKE A DEUKMEJIAN con-

taining your music and the lyrics annexed and marked

Exhibit A.

As your employees-for-hire, you will own the said parody

and all rights therein including the copyright as a work

for hire throughout the world.

I am not to receive any compensation as a composer of

the parody or otherwise for any present or future use of

said parody.

Your ownership of the copyright in said parody is en-

tirely unencumbered and without any obligation to com-

pensate me.

In the event that I produce phonorecords embodying the

parody I shall be required to obtain from you a separate

mechanical license authorizing said use, which license

shall provide for a royalties rate of five ($ .05) cents

per copy for each phonorecord manufactured and | will

pay you in advance upon the signing of such license a

fee to cover the initial pressing of 500 units.

22a

Very truly yours,

s’ Bruce Kerr

BRUCE KERR

c o Loose Bruce Productions

413 Vasquez Avenue

Sunnyval -, CA 94086

AGREED TO:

PEER INTERNATIONAL CORPORATION

by /s/ Cecile Russo

CECILE Russo

Assistant Vice President

of Copyright and Licensing

23a

APPENDIX E

IN THE SUPREME COURT

OF THE UNITED STATES

October Term, 1992

No. 92-1292

LUTHER R. CAMPBELL, a k a LUKE SKYYWALKER,

CHRISTOPHER WONGWON, a kK a FRESH Kip Ice.

MakRK Ross, a/k/a BROTHER MARQUIS,

Davip Hosss, a k/’a Mr. Mixx;

professionally known as THE 2 Live Crew;

LUKE SKYYWALKER RECORDS,

ve. Petitioners,

ACUFF-RosE Music, INC..,

Respondent.

DECLARATION OF NANCY HOLSON

1. My name is Nancy Holson. I am one of the pro-

ducers and the lyricist for “The News in Revue,” a musi-

cal satire troupe currently located in Westport, Connec-

ticut. “The News in Revue” performs musical political

satire on local and national issues. The production,

which was originally performed in workshop as “The

News” in Norwalk, Connecticut, ran eight shows per a

week as an Off Broadway show in New York City from

July to Election Day of November, 1992. It currently

runs in Westport every Saturday night and for private

events.

2. The upfront production costs for a production such

as “The News in Revue” are enormous. For example, an

enormous investment was necessary for start-up costs to

perform the show Off Broadway. Other unavoidable costs

include advertising and paying full-time employees (“The

24a

News in Revue” has employed as many as seventeen em-

ployees at one time). In order to pay back the original

investment and keep the production going, it is abso-

lutely necessary to run “The News in Revue” as a com-

mercial venture.

3. The songs used in “The News in Revue” satirize

both local and national politics. For example, when we

were performing in New York we used the song “We'll

Always be Bosom Buddies” from “Mame” to satirize the

political back-stabbing which occurred between Liz

Holtzman and Geraldine Ferraro in the New York Sen-

ate Primary, a satire which had special comedic force,

given that 1992 was termed “The Year of the Woman.”

This song was chosen because it seemed uniquely suited

to convey the humor inherent in the situation. National

political parodies have included Dan Quayle singing an

angry duet with Murphy Brown to the tune of “The Lady

is a Tramp,” and Marilyn Quayle espousing her particular

brand of less-than-equal rights with a parody of “I Enjoy

Being a Girl” from “The Flower Drum Song.” Once

again, both these songs were selected because they were

particularly well-suited for communicating the humorous

message which we were attempting to convey.

4. When we decided to open Off Broadway, we were

concerned about relying on the fair use doctrine of copy-

right law to protect us from potential litigation. After

interviewing at least five attorneys and being advised that

the fair use doctrine was a rather unsettled and murky

one, we decided to pursue the route of attempting to ob-

tain and pay for releases from the copyright owners of

the songs which we used in our productions.

5. We initially sought the assistance of a specialist

in obtaining copyright permissions, and after paying her

nearly $1,300.00 we learned that she was unable to ob-

tain a single clearance. We then turned to our attorney,

who after the expenditure of much time and labor, and

at the expense of over $10,000.00 in attorney's fees, came

25a

up with similar results after submitting requests to use

approximately twenty songs.

6. In attempting to gain releases, our attorney con-

tacted either the music publisher or the songwriter or his

representative. In denying our requests, the publishers

or songwriters gave us a variety of reasons. For example.

one publisher denied our requests for the use of several

songs because he felt that the use of standards in a polit-

ical satire could be detrimental to the song itself and at

odds with the writer’s view as to the song’s use and

creation. In the two or three cases where our requests

were even considered, the approvals were contingent

upon a number of conditions: we would have to submit

the proposed lyric modifications to the publisher for ap-

proval (which approval could be withheld for any rea-

son), we would have to transfer the ownership of any

modified lyrics over to the publisher, and the scope of the

permitted use would be restricted by the publisher.

7. In one case, the copyright holder not only denied

our request for a release, but also suggested changes in

the meter and rhyme pattern of our proposed parody.

A copy of the response we received to our request for

the use of “Don’t Get Around Much Anymore” is at-

tached hereto as Exhibit 1. The suggested changes al-

tered the actual content and intent of the lyrics which

we had originally submited to the copyright holder. Our

song was meant to lampoon the recent, belated decision

to place a bust of Spiro Agnew in the Capitol Rotunda.

A copy of our proposed lyrics is attached hereto as

Exhibit 2. The modified lyrics suggested by the copyright

holder do not even mention the bust or the controversy

surrounding it. and thus totally miss the point of the our

narody. We ultimately decided not to pursue obtaining

this release any further, as we felt that we should not be

required to modify our lyrics to conform to the copyright

holder’s aesthetic sensibilities.

8. Ultimately. we were only able to secure one agree-

ment with one publisher, Warner Chappell, to use two

26a

Cole Porter songs, only one of which was used in “The

News in Revue.” With regard to the other requests. we

decided that the conditions placed upon our use of the

songs were too onerous to merit the obtaining of a re-

lease, especially given the timely political content of our

production. In the time in which it would take to ob-

tain an approval of our lyric modifications, the political

commentary of our parodies would lose its humor and

grow stale; waiting to obtain pre-approval of our parodies

would esentially make performing “The News in Revue”

impossible.

9. After much discussion, we decided to go ahead

with the New York production of “The News in Revue”

irrespective of our inability to gain copyright releases for

the songs used in the production. Although there are

elements of the fair use doctrine which are not clearly

defined, we believed that the intent of the doctrine was

to protect the ability of satirists such as ourselves to make

social and political commentary. We decided that our

show was worth the risk.

I make the foregoing declaration under penalty of per-

jury, this 17 day of May, 1993.

‘s’ Nancy E. Holson

NaANcY HOLSON

27a

EXHIBIT |

HARRISON MUSIC CORP.

INTERNATIONAL MUSIC SERVICE

6253 Hollywood Blvd., Suite 807

Hollywood, Ca. 90028

Tel: (213) 466-3834

Fax: (213) 469-6411

FAX TRANSMISSION FAX # 212-956-2164

DATE: 68 92

To: Harvey S. Epstein

COMPANY: Robinson Brog ETC

FROM: Harrison Music Corp.

RE: Parody for “DON’T GET AROUND MUCH

ANYMORE”

TOTAL NUMBER OF PAGES, INCLUDING

FRONT COVER

IF YOU DO NOT RECEIVE THE FULL TRANSMIS-

SION OF THIS FAX, PLEASE CONTACT THE FAX

OPERATOR ON (213) 466-3834 IMMEDIATELY

QUOTING THE ABOVE REFERENCE.

ADDITIONAL INFORMATION: To reply to your

letter of June 3rd, we fully understand your request for

approval for the use of our property but in the interest

of preserving the integrity of our copyright we would

suggest some changes. Although we respect the political

intent our preference is to adhere to the original meter

and rhyme pattern.

The present parody does not meet our standard for this

outstanding and valuable copyright.

28a

Although we wish your clients

the best of luck with their

project we do not give permission to use their present

parody.

Molly Hyman

MoLLy HYMAN

29a

HARRISON MUSIC CORP.

6253 Hollywood Blvd., Suite 807

Los Angeles, CA 90028

(213) 466-3834, 466-0453

FAX (213) 469-6411

EX AMPLE

Parody for “DON’T GET AROUND MUCH

ANYMORE”

Verse:

Had iots of fun in Washington

But now a quiet life have I

If they want me to make the run

Believe me they've got the right guy.

Chorus:

Missed the Watergate trials

All the blood and the gore

Missed the pardon from Jerry

Don’t get around much anymore.

Missed the chance to preside

On the old Senate floor

How I miss the debating

Don't get around much anymore.

Left in disgrace

My life was a mess

Now they want my face

Back at the old address.

Etc. etc. etc

30a

EXHIBIT 2

Nancy Holson’s Parody of Don’t Get Around Much Any-

more (as sung by Former Vice President Spiro Agnew)

No more a life in Washington,

A quiet, private life have I.

Now they want to hang my picture up

And I’m back in the public eye.

Missed the Watergate trials,

That was lucky for sure.

Missed the pardon from Jerry.

Don’t get around much anymore.

Missed the chance to preside

On the senate floor.

How I miss the debating.

Don't get around much anymore.

Left in disgrace,

My life asunder.

Now they want my face

Back in the rotunda.

Silent majority spoke.

Coined that phrase way back when,

Spiro A’s back in fashion,

So I might get around again.

(Blackout )

3la

IN THE SUPREME COURT

OF THE UNITED STATES

October Term, 1992

No. 92-1292

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

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

MARK Ross, a’ k a BROTHER MARQUIS,

Davip Hosss, a/k/a Mr. MIxx;

professionally known as THE 2 Live CREw;

LUKE SKYYWALKER RECorRDs,

itioners,

-. Petitioner

ACUFF-ROoSsE MusIc, INC..,

Respondent.

DECLARATION OF MICHAEL HUEY

1. My name is Michael Huey, M.D. I am the Direc-

tor of the Student Health Service at California State

University, Bakersfield campus.

2. I am also a member of, and the lyricist for “The

Fabulous Bakersfield Boys,” a four singer musical comedy

satire group in Bakersfield, California. The group first

performed in 1990, and has grown in local popularity;

we performed 50 shows in 1992. Although we work

principally in Bakersfield and Kern County, we have also

performed in San Diego, Los Angeles, and San Francisco.

3. Our songs primarily satirize local Bakersfield issue

and personalities. For example, last year we sang “I

Wrote the Checks, But the Checks Bounced” (to the

tune of “I Fought the Law, But the Law Won’’), a song

about our local congressman’s involvement in the House

check writing scandal. Occasionally, however, we do ven-

ture into state and national politics, social issues, and

even international events (including Desert Storm and

32a

the British royal family). Generally, the group performs

for business banquets, Chamber of Commerce meetings,

and the like. Our gross receipts for 1992 were $25,000.

4. In the summer of 1992, we decided to cut our first

record album. Because we were unsure as to our legal

position, we contacted The Harry Fox Agency, Inc. in

New York (the principal licensing agency for rights to

record copyrighted music). They informed us that we

must have “written permission” from the copyright holder

for any song parody, so we mailed request letters for

twelve songs. In each case, we offered to pay copyright

royalties.

5. We received one immediate approval, then nothing

else for weeks. However, since we hoped to have the

album ready in time for Christmas, we decided to proceed

with recording the songs.

6. We spent hours in the studio, and over $1,200

cutting the twelve songs, but the difficulties of obtaining

“written permission” became increasingly painful and dis-

illusioning. Two songs were refused outright, even after

tapes of our recorded parody were sent for approval.

Two oher songs were initially refused by the publisher,

but later approved when I contacted the agent for the

writers directly. Two others were approved by the pub-

lisher after several contacts. All four of these approvals

were accompanied by a requirement that we sign over all

right for the lyrics to the publisher for $1, and agree

never to claim authorship of the lyrics in writing or ver-

bally. The final tally: one immediate approval, four de-

layed and conditional approvals, and two refusals. Five

of our requests have been ignored entirely.

7. One of the songs for which we were denied permis-

sion was “Phantom of the Clarion,” a parody version of

“Phantom of the Opera.” Our version satirizes a hotel

which was supposed to be built adjacent to the Bakers-

field convention center, but which remains nothing but a

steel skeleton after the expenditure of millions of dollars

in public and private funds. Because this is probably

33a

our most popular song, | made multiple attempts to ob-

tain approval, but to no avail.

8. Christmas 1992 came and went, and the album still

sits on the shelf. At one point, the group nearly split up

over this album mess. Two partners (including myself)

wanted to proceed under the “fair use” doctrine, despite

the refusals. The other two members refused over fear of

a lawsuit. They contended that even the successful de-

fense of a copyright lawsuit would destroy the group

financially. We remain in limbo as the songs age and

lose their topicality.

9. Our experience leads me to several conclusions.

First, I do not see how our song parodies could possibly

hurt the copyright holder. Our most popular songs are

those we write about local political issues and personali-

ties. I do not see how anyone could believe that “Who

Wants to Buy Gosford and Ming,” a song about the diffi-

culties faced by a local developer at a particular Bakers-

field intersection (not on the “album’’), could take reve-

nue away from “Who Wants to Buy this Diamond Ring,”

an old Gary Lewis and the Playboys hit from the 1960's.

Yet, even though we offered to pay royalties on every

song, seven of the twelve publishers we approached either

turned us down or ignored our request for permission.

10. Second, re process of obtaining permissions is so

drawn out and problematic that it is impossible to do

parody recordings of songs about controversial political

issues if permission is required. For example, our check

writing song is now old news.

11. Finally, social and political song parody is an

American art form with over two centuries of history.

Our experience demonstrates to me that puting it into

the shackles of a copyright licensing process would ef-

fectively eliminate it as an art form, except when per-

formed at such a small scale that it escapes notice by the

avenue for the free flow of ideas and opinions that has

always characterized American life.

34a

1 declare that the foregoing is true, to the best of my

knowledge and belief, under penalty of perjury, this 4th

day of May, 1993.

s/ Michael Huey, M.D.

MICHAEL Huey, M.D.

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