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

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October Term, 1992

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

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

ve ROSS a/k/a BROTHER MARQUIS, DAVID HOBBS a/k/a

ar -MR. MIXX; professionally known as THE 2 LIVE CREW;

ae LUKE SKYYWALKER RECORDS,

hs Petitioners,

pe.

- v.

¥. ACUFF-ROSE MUSIC, INC..,

o. Respondent.

e* On Writ of Certiorari to the United States Court of Appeals

E for the Sixth Circuit

5 7 BRIEF OF AMICI CURIAE NATIONAL MUSIC

. PUBLISHERS’ ASSOCIATION, INC., MICHAEL

‘ - JACKSON D/B/A ATV MUSIC, MAC DAVIS, DOLLY

& PARTON, NASHVILLE SONGWRITERS’ ASSOCIATION

INTERNATIONAL, NATIONAL ACADEMY OF

SONGWRITERS AND THE SONGWRITERS GUILD OF ,

AMERICA IN SUPPORT OF RESPONDENT :

Care

MARVIN E. FRANKEL

Counsel of Record —

MICHAEL S. OBERMAN

KRAMER, LEVIN, NAFTALIS,

NESSEN, KAMIN & FRANKEL :

919 Third Avenue

New York, New York 10022 ‘

(212) 715-9100

BEST AVAILABLE COPY \¢

TABLE OF CONTENTS

Page

TABLEOFAUTHORITIES ................00 iii

STATEMENT OFINTEREST .................. 2

SUMMARY OFARGUMENT ...............0 4

ST heehee ev eesscincesesessccclclel... 6

I. AN UNLICENSED MUSICAL PARODY, IF

NOT FOUND TO BE A FAIR USE OF THE

UNDERLYING COPYRIGHTED MUSICAL

WORK, IS AN INFRINGEMENT OF THAT

MUSICAL WORK. ...................... 6

A. Musical Works Are Given Broad Protection

Under the CopyrightAct..............._. 7

B. Parodies Are Not the Subject of Any Unique

Exemption Under the CopyrightAct. ...... 1]

C. The Fair Use Factors Allow a Sensible

Balance Between the Copyright Owner and

WINE Wh iss Radekcccccescc...... 15

1. Purpose and Character of theUse ..... 16

2. Nature of the Copyrighted Work ...... 19

3. Amountand Substantiality of the Use |. 20

Page

4. Effect of the Use Upon the Potential

Market for or Value of the Copyrighted

WOER wcccccccccctecnseennaeneeee 21

Il. 2LIVECREW’S “PRETTY WOMAN” IS NOT A

FAIR USE OF “OH, PRETTY WOMAN.” ..... 25

CONCLUSION on cccccccccccsccncsssseusueeennee

Page

TABLE OF AUTHORITIES

Cases

Acuff-Rose Music, Inc. v. Campbell, 972 F.2d 1429 (6th

Ss 20 n. 4

Berlin v. E.C. Publications, Inc., 329 F.2d 541 (2d Cir.),

cert. denied, 379 U.S.822(1964) ................. 15

Computer Assocs. Int'l, Inc. v. Altai, Inc., 982 F.2d 693 (2d

| be 6

DC Comics, Inc. y. Crazy Eddie, Inc., 205 U.S.P.Q. 1177

TS 23

Elsmere Music, Inc. v. National Broadcasting Co., Inc.

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

a 21,27

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

DT OTTTREESESSbecccocccecece 10, 12, 15, 17, 20, 21, 27

Folsom v. Marsh, 9 F. Cas. 342 (C.C.D. Mass. 1841) (No.

ees ccc ccccccsccces..... 25

Harper & Row, Publishers, Inc. y. Nation Enters., 471 U.S.

TS 11, 12, 14, 16, 17, 18, 19, 20, 21, 26

Harry Fox Agency, Inc. v. Mills Music, Inc., 543 F. Supp.

844 (S.D.N.Y. 1982), rev'd, 720 F.2d 733 (2d Cir. 1983),

rev'd, 469 U.S. 153(1985) ...................... 9

Page

MCA, Inc. v. Wilson, 677 F.2d 180(2d Cir. 1981) ....8, 15, 16,20

Metro-Goldwyn-Mayer, Inc. v. Showcase Atlanta Coop.

Prods., Inc., 479 F. Supp. 351 (N.D.Ga. 1979) ...... 17

Monessen Southwestern Ry. v. Morgan, 486 U.S. 330

SED ce eeccccceeccdéecdenscecdeceseeudesneeses 15

New Line Cinema Corp. v. Bertlesman Music Group, Inc.,

693 F. Supp. 1517(S.D.N.Y. 1988) ................ 14, 16

Pillsbury Co. v. Milky Way Prods., Inc., 215 U.S.P.Q. 124

SR MED dneecdecdeedsesecesceedtueceses 18

Rogers v. Koons, 960 F.2d 301 (2d Cir.), cert. denied, 113

PG OEE ccvcceconseccscncsseecéoss 15, 16, 17,19

Sony Corp. of America v. Universal City Studios, Inc., 464

PED Goccccccccceessececeecesecoecss 8,17,18

Stewart v. Abend, 495 U.S. 207 (1990) .... 2.2.2... 565. 13,14

Twentieth Century Music Corp. v. Aiken, 422 U.S. 151

SUSE ocedececesekudacesatecseséedendsctacees 8

Tin Pan Apple, Inc. v. Miller Brewing Co., Inc., 737 F.

DD CP OUD cccvedccecceccecsecscs 23

Twin Peaks Prods., Inc. v. Publications Int'l, Ltd., Nos. 92-

7933, 92-7985, 1993 U.S. App. LEXIS 13454 (2d Cir.

18,19

SEE cicusénwiatesncesiass neuen

Page

Walt Disney Prods. v. Air Pirates, 581 F.2d 751 (9th Cir.

1978), cert. denied, 439 U.S. 1132 Bae ae 12,20

SD eR

Statutes

POUND sb tons dddbdnunbebevdrsecedesces is 9n.1

PIED was detnviedwéudecctececese: 7

POG SREs can icsdeccerseesuceieecesecn: 7, 23,27

ny, PEERED eC ena 27

WONT siviscuaclaeadgacsvasescste cio ly passim

PUM Whbencnecctusccestescedeccd 9, 19,23, 24, 27

Pe daivendeGiheudsdeeustecescu ai 10

PE Chbkdieutacivebcincdenkecce 0s... 8

EDs penuduttce eS 8

TOGO si sesbveesiccscsseccccvecececes..., 8

17U.S.C.A. §§ 1003-1007... 8

Page

United States Constitution

EPCOT TT TTT TTT TT re 3,4, 11, 12,13

REE BOGS oc cc cccccsccsectcsocess 14

Other Authorities

H.R. Rep. No. 1476, 94th Cong., 2d Sess. (1976) ....... 10, 13

H.R. Rep. No. 836, 102d Cong., 2d Sess.(1992) ........ 20 n. 4

H.R. Rep. No. 873(1), 102d Cong., 2d Sess. (1992)

Shs PUSERRORSHREE NebeRNROSESeaEvEStRsesecess 8

S. Rep. No. 473, 94th Cong., Ist Sess. (1975) ..... 11,12n.2,21

2 Melville B. Nimmer & David Nimmer, Nimmer on

3 Nimmer § 13.05(C) at 13-102.28(16) to 102.28(17)

SE Ceedoccectcccocesucnenedecsseouucssesse 21

Al Kohn & Bob Kohn, The Art of Music Licensing (1992)

Seenseensecoeseeocedesecncenensecdsdsiwdenseta 7,8,9

Charles J. Sanders & Steven R. Gordon, Stranger in

Parodies: Weird Al and the Law of Musical Satire, |

Fordham Ent., Media & Intell. Prop. L. Forum 11

GED SSwecacccendoncerdcescedesdsesecuesoodes 13,22

Joan Mower, UPI, October 14, 1981, available in LEXIS,

PEED sectusccoscseccecsenceoss 13n.3

Vii

Parody Set, by Harvard Lampoon, N.Y. Times, June 23,

1982 at D-16

Page

No, 92-1292

In The

Supreme Court of the Anited States

October Term, 1992

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

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

ROSS a/k/a BROTHER MARQUIS, DAVID HOBBS a/k/a MR.

MIXX; professionally known as THE 2 LIVE CREW; LUKE

SKY YWALKER RECORDS,

Petitioners,

ACUFF-ROSE MUSIC, INC.,

Respondent.

On Writ of Certiorari to the United States Court of Appeals for the

Sixth Circuit

BRIEF OF AMICI CURIAE NATIONAL MUSIC

PUBLISHERS’ ASSOCIATION, INC., MICHAEL

JACKSON D/B/A ATV MUSIC, MAC DAVIS, DOLLY

PARTON, NASHVILLE SONGWRITERS’ ASSOCIATION

INTERNATIONAL, NATIONAL ACADEMY OF

SONGWRITERS AND THE SONGWRITERS GUILD OF

AMERICA IN SUPPORT OF RESPONDENT

National Music Publishers’ Association, Inc., Michael

Jackson d/b/a ATV Music, Mac Davis, Dolly Parton, Nashville

Songwriters’ Association International, National Academy of

Songwriters, and The Songwriters Guild of America (collectively,

the “Songwriter/Publisher amici”) submit this brief as amici

curiae in support of respondent, Acuff-Rose Music, Inc. (“Acuff-

Rose”). Consents of the parties have been lodged with the Clerk.

STATEMENT OF INTEREST

The Songwriter/Publisher amici represent creators of musical

works. National Music Publishers’ Association, Inc. (“NMPA”),

with 514 members, is the principal trade association of music

publishers in the United States. Because the music publishing

business is governed by the Copyright Act, the primary functions

of NMPA are to seek enactment of changes or clarifications in the

on the need for copyright protection and, more generally, to protect

the interest of copyrights in musical works. A wholly owned

subsidiary of NMPA, The Harry Fox Agency, Inc. (“Harry Fox”),

serves as a licensing and collection agent for its 12,000 publisher

clients. NMPA and Harry Fox, in serving the interests of

publishers, frequently bring or facilitate litigation seeking an

interpretation of the Copyright Act and/or relief against copyright

infringers.

Michael Jackson, Mac Davis, and Dolly Parton are among

America’s most popular and successful songwriter-performers.

Mr. Jackson’s songs include “Billie Jean,” “Beat It,” and “Black or

White.” His company, ATV Music, owns a major part of the

catalog of the Beatles’ songs. Mr. Davis wrote three hits for Elvis

Presley, including “In the Ghetto,” and has also written songs for

Kenny Rogers, Bobby Goldsboro, and O.C. Smith, among others.

Ms. Parton has written numerous country classics, including “Coat

of Many Colors,” “Jolene,” “Yellow Roses,” and “I Will Always

Love You.”

Nashville Songwriters’ Association International, established

in 1967, is a not-for-profit trade association working to advance,

promote, and benefit both professional and aspiring songwriters in

all fields of music. Based in Nashville, it represents 3800

songwriters who reside in all fifty states and fourteen countries

around the world.

National Academy of Songwriters is a twenty-year-old non-

profit educational organization committed to advancing the rights

and recognition of songwriters. Based in Los Angeles, it has 3000

members around the country.

The Songwriters Guild of America, founded in 1931, is a

national voluntary songwriters’ protective association with nearly

5000 members. Run by and for songwriters, it has been devoted

exclusively to providing songwriters with the services and

activities they need to succeed in the business of music, including

contract review and royalty collection.

The fair use defense functions as a pressure valve in the

between the interests of copyright owners and the interests of those

wishing to use copyrighted works. As devised by the courts and as

codified by Congress, the four non-exclusive factors of §107 have

served well these competing interests and have allowed each tested

case to be fairly evaluated in its own circumstances. Up to now, no

type of use has been treated as presumptively “fair” or as altogether

shielded by the First Amendment from fair use analysis.

The Court is now asked by petitioners and their amici to adjust

the valve measurably for parody, and lift it to its own plane of

protection. The adverse consequences of this adjustment to owners

of copyrights in musical works would be immediate and extreme:

they would stand to lose millions of dollars in revenues from their

works that Congress intended them to receive as a reward and

incentive for creativity. The Songwriter/Publisher amici submit

this brief to present the interests of owners of copyrights in musical

works and to urge the Court to preserve in their essentials the well-

calibrated standards of fair use.

SUMMARY OF ARGUMENT

This case implicates not only the interests of parodists but at

least as much the interests of copyright owners. Congress has given

broad protection and a bundle of exclusive rights to the owners of

copyrights in musical works intending that, through exploitation of

their rights, they will be rewarded for their creativity and

motivated to compose and publish additional musical works. In

ruling on the affirmative defense of fair use in a musical parody

case, a court must give full weight to the rights of the owner of the

parodied work.

Parody is accorded no unique exemption under the Copyright

Act, nor did Congress make parody presumptively a fair use of a

copyrighted work. Instead, an unlicensed parody of a musical

work, under the structure Congress enacted, is an infringement

unless the parody is found to be a fair use under the criteria of § 107

of the Copyright Act. The First Amendment does not preclude a

finding of infringement; the Copyright Act already embodies First

Amendment protection in the idea/expression dichotomy and the

fair use defense.~

There is no occasion to abandon the fair use test for parody;

the non-exclusive factors codified in § 107 have provided a

sensible balance when applied by the lower courts in numerous

parody cases. As petitioners’ amici report, parody is flourishing in

the setting of these decisions. Under § 107, some works that are

claimed to be parodies will be treated as fair uses, so that the

parodists may exploit their own works without license from or

payment to the owners of the parodied works. Other parodies will

be held to exceed the limits of §107, and — absent licenses from

the copyright owners — will be infringing uses. In drawing the

line, a court should consider, inter alia, the target of the parody, the

degree of commercial exploitation, the amount taken to conjure up

the parodied work, and the likelihvod of harm to any of the

potential markets for an original song.

If the Court were to unleash a sweeping privilege to use

copyrighted musical works in favor of parodists, customary

practices in the songwriting and music publishing industries would

be totally disrupted and songwriters and music publishers would

suffer severe economic harm. A shift in law that converts a

licensed use into a fair use automatically results in the forfeiture of

a portion of the livelihoods of creators of music. The stakes are

high: songwriters and music publishers are presently entitled to

receive millions of dollars per year from licensed parodies,

licensed full lyric substitutions, licensed ads, and licensed rap

versions of songs. The magnitude of what is at risk in this case is

much greater, because copyright owners are entitled to royalties

not merely for one year but for the full terms of their copyrights. A

fundamental change in the law of fair use would also hamper

owners of copyrights in musical works in their efforts fully to

exploit these works in sound recordings and in other media.

The Sixth Circuit’s decision is amply supported by the record.

In particular, 2 Live Crew’s “Pretty Woman” is at the height of

commercial exploitation: an expansive use of “Oh, Pretty Woman”

conceived for a mass market by a best selling musical group that

utilizes the copyright system to protect its own right to revenues

from album sales.

ARGUMENT

I AN UNLICENSED MUSICAL PARODY, IF NOT

FOUND TO BE A FAIR USE OF THE UNDERLYING

COPYRIGHTED MUSICAL WORK, IS AN INFRINGE-

MENT OF THAT MUSICAL WORK.

Acuff-Rose has, without question, established the elements of

a copyright infringement claim: “Oh, Pretty Woman” is a

copyrightable original musical work; Acuff-Rose owns the

protect its copyright and to bring suit; and 2 Live Crew, with access

to “Oh, Pretty Woman,” has made an unauthorized derivative work

that is substantially similar to “Oh, Pretty Woman.” See generally

Computer Assocs. Int'l, Inc. v. Altai, Inc., 982 F.2d 693, 701 (2d

Cir. 1992) (stating the elements of an infringement claim). The

sole issue is whether 2 Live Crew has met its burden on the defense

of fair use.

Petitioners and their amici have addressed almost exclusively

the purported parody by 2 Live Crew and the place of parody under

the fair use defense. The Songwriter/Publisher amici urge that to

apply properly the “equitable rule of reason” in this or in any other

parody case, a court must give full account to the rights and

protections granted by Congress to the owners of the parodied

work. We, therefore, first review the statutory framework

governing the use of musical works (Point IA). We next turn to the

treatment of parody under the Copyright Act (Point IB). With the

positions of a copyrighted musical work and a parody under the

as applied by lower courts permit the intended balance between the

interests of copyright owners and the interests of parodists, and

how a fundamental shift in fair use law to favor parodists would

cause substantial economic harm to songwriters and music

publishers (Point IC).

A. Musical Works Are Given Broad Protection Under the

Musical works are expressly recognized under the Copyright

Act as protectable works of authorship. See 17 U.S.C. § 102(a)(2)

(1988). The owner of the copyright in a musical work enjoys the

bundle of rights enumerated in § 106 — that is, the

exclusive rights to do and to authorize any of

the following:

(1) to reproduce the copyrighted work in

copies or phonorecords;

(2) to prepare derivative works based upon the

copyrighted work;

(3) to distribute copies or phonorecords of the

copyrighted work to the public by sale or other

transfer of ownership, or by rental, lease or

lending;

(4) ... to perform the copyrighted work

publicly; and

(5)... to display the copyrighted work

publicly.

17 U.S.C. § 106 (1988). Within the songwriting and music

publishing industries, the statute gives a copyright owner

exclusive control, inter alia, over licensing the distribution of

Phonorecords of a musical work (the “mechanical right’); the use

of a musical work in a motion picture or television show (the

“synchronization right”); and the performance of a musical work

over the air or in public (the “performance right”). See generally

Al Kohn & Bob Kohn, The Art of Music Licensing (1992).

Congress intended that, through exploitation of their rights,

owners of copyrights in musical works would be rewarded for their

creativity and thereby motivated to compose and publish

additional musical works. See Twentieth Century Music Corp. vy.

Aiken, 422 U.S. 151, 156 (1975).

The bundle of exclusive rights is backed by the remedies for

infringement of a copyright in a musical work. See 17 U.S.C. § 501

(1988 & Supp. III 1991); see also id. §§ 502-505 (delineating the

remedies available for copyright infringement); id. § 506

(describing the criminal offenses). Courts have time and again

issued injunctions and awarded damages against persons who

copied a copyrighted musical work — that is, persons who created

a substantially similar work having access to the original musical

work but without having a license for this use. See, e.g., MCA, Inc.

v. Wilson, 677 F.2d 180, 187 (2d Cir. 1981).

Congress last year gave added protection to musical works in

order to ensure further that copyright owners will be justly

compensated. In Sony Corp. of America v. Universal City Studios,

Inc., 464 U.S. 417 (1984), this Court held that time shifting of

broadcast television shows for non-commercial purposes was a

fair use of the copyrighted programs and films. See id. at 456.

Nonetheless, in recognition of the phonorecord sales income that

will be lost through home taping of copyrighted musical works on

digital audio equipment, Congress created a new royalty fund

derived from the sale of digital equipment and recording media,

with the royalties to be allocated among creators of music. See 17

U.S.C.A. §§ 1003-1007 (Supp. 1993); see also House Comm. on

the Judiciary, Audio Home Recording Act of 1992, H.R. Rep. No.

873(1), 102d Cong., 2d Sess. 11-12 (1992), reprinted in 1992

U.S.C.C.A.N. 3578, 3581-82.

One statutory exemption is specifically applicable to musical

~All ti ea ct,

works: the compulsory license of § 115. Under this provision, once

phonorecords of a sound recording have been publicly distributed

in the United States with the consent of the copyright owner,

anyone else, subject to the express conditions of § 115, may make

and distribute phonorecords of a new sound recording of the

copyrighted musical work without express permission from the

the copyright owner for each Phonorecord made and distributed

under the compulsory license. See 17 U.S.C. § 115 (1988). In

common practice, Harry Fox, as licensing and collection agent for

its music publishing clients, grants licenses (which are written

variations of the compulsory license under § 115) directly to record

companies. See Harry Fox Agency, Inc. v. Mills Music, Inc., 543 F.

Supp. 844, 848 (S.D.N.Y. 1982), rev'd, 720 F.2d 733 (2d Cir.

1983), rev'd, 469 U.S. 153 (1985): Al Kohn & Bob Kohn, The Art

of Music Licensing 319-20 (1992).

The Copyright Act of 1976 added an important qualification

to the compulsory license provision. A person seeking to make a

new sound recording may not materially alter the musical work. In

the words of the statute:

A compulsory license includes the privilege of

making a musical arrangement of the work to

the extent necessary to conform it to the Style or

manner of interpretation of the performance

involved, but the arrangement shall not

change the basic melody or fundamental

character of the work, and shall not be subject

1. Inthe terminology of the Act, “sound recordings” are works that “result

from the fixation of musical or other sounds, but not including the sounds

accompanying a motion picture or other audio-visual work” — that is, versions

or renditions of musical works. 17 U.S.C. § 101 (1988). “Phonorecords” are the

material objects in which sound recordings are fixed and include vinyl! records,

pre-recorded cassettes and compact discs. /d.

to protection as a derivative work under this

title, except with the express consent of the

17 U.S.C. § 115(a)(2) (emphasis added). By this qualification,

Congress intended “to recognize the practical need for a limited

privilege to make arrangements of music being used under a

compulsory license, but without allowing the music to be

perverted, distorted or travestied.” H.R. Rep. No. 1476, 94th

Cong., 2d Sess. 109 (1976), reprinted in 1976 U.S.C.C.A.N. 5659,

5724. Asa result, any person seeking to “change the basic melody

or fundamental character of the work” requires a license from the

Nimmer & David Nimmer, Nimmer on Copyright § 8.04[F] (1991)

[hereinafter Nimmer].

Congress, in sum, has given a broad array of exclusive rights

to the owners of copyrights in musical works, including the right

preserved under § 115(a)(2) to control fundamental changes to

their works. These rights are, of course, subject to the fair use

defense of § 107. See 17 U.S.C. § 107 (1988); 17 U.S.C.A. § 107

(Supp. 1993). The central issue is thus framed. Where no fair use

is found, the copyright owner of a musical work can control the

creation of a sound recording that fundamentally changes the

work, can exclusively license the musical work and can obtain

damages and other remedies for an infringing use. In contrast,

where fair use is found, the copyright owner has no control over

that use and is not compensated for it. Weighing the broad

protections Congress intended for owners of musical works, fair

use is properly viewed as “a limited privilege in those other than

the owner of a copyright to use the copyrighted material in a

reasonable manner without the owner's consent.” Fisher v. Dees.

794 F.2d 432, 435 (9th Cir. 1986) (emphasis added).

Fe et dent. Be

B. Parodies Are Not the Subject of Any Unique Exemption

Under the Copyright Act.

This Court is urged by petitioners and several amici to rewrite

fundamental principles of copyright law in order to give enhanced

insulation to parodies. Some propose that parody be declared

presumptively a fair use; others propose that parody be freed by the

First Amendment from at least some of the fair use criteria that

apply to news gatherers, scholars, social critics and everyone else.

These proposals are entirely at odds with the statute Congress

enacted and with prior decisions of this Court.

Parody does not stand alone on a pinnacle of protected speech.

There is no unique exemption for parody under the Copyright Act.

Congress did refer in its legislative reports to the “use in a parody

of some of the content of the work parodied” among “the sort of

activities the courts might regard as fair use under the

circumstances,” see, e.g.,S. Rep. No. 473, 94th Cong., Ist Sess. 61

(1975) — although, in the Act itself, Congress did not specifically

include parody among the examples of possible fair uses. See 17

U.S.C. § 107. Parody is unquestionably eligible for fair use

treatment but, for a particular parody to be held to be a fair use, a

court must apply the criteria of § 107. Parody cannot be

presumptively viewed as fair use. As this Court has held, Congress

did not intend

to single out any particular use as

presumptively a “fair” use. The drafters

resisted pressures from special interest groups

to create presumptive categories of fair use, but

structured the provision as an affirmative

defense requiring a case-by-case analysis.

Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539,

561 (1985); see also Fisher v. Dees, 794 F.2d at 435 (refusing to

classify parody as presumptively fair use).

In Harper & Row, the Court explained why the First

Amendment, a part of the same Constitution that created the power

to grant copyrights, does not override the limitations on use of

copyrighted works enacted by Congress. The Copyright Act

already embodies First Amendment protection in its “distinction

between copyrightable expression and uncopyrightable facts and

ideas, and the latitude for scholarship and comment traditionally

afforded by fair use.” Harper & Row, 471 U.S. at 560: see also

Walt Disney Prods. v. Air Pirates, 581 F.2d 751, 758-59 (9th Cir.

1978) (stating that the idea-expression dichotomy adequately

balances copyright and free speech interests), cert. denied, 439

U.S. 1132 (1979); ef. Zacchini v. Scripps-Howard Broadcasting

Co., 433 U.S. 562, 578-79 (1977) (sustaining a right of publicity

2. The Court's attention is drawn by petitioners and certain amici to a

passing reference in the legislative reports that “[w ith 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.” See, ¢.g., S. Rep. No. 473, 94th

Cong., Ist Sess. 65 (1975). The operative word in this sentence is “might.” The

Congressional reports did not suggest that all parodies can supplant the norma!

markets for copyrighted works and still be considered fair use. Instead, each

parody must be judged under the criteria of §107 in its own circumstances.

Petitioners argue that their “creative derivative work” should be treated as

a presumptively fair use because it “possesses the two fundamental criteria for

Br. 12-13). If the fact that a parody qualifies as a copyrightable derivative work

gave rise to a presumption of fair use, the defense would eliminate copyright

protection for parodied works. In the typical parody case — as in countless

infringement cases involving uses other than parody — the allegedly infringing

work will qualify as a copyrightable derivative work. Cf. Harper & Row, 471

U.S. at 563-64.

a gl PG et ly.

claim against First Amendment defense where broadcasters had

transmitted the entire act of a “human cannonball”). The idea-

expression dichotomy and the fair use defense were initially

crafted by courts, before being codified in the Copyright Act, see

H.R. Rep. No. 1476, 94th Cong., 2d Sess. 65-66 (1976), reprinted

in 1976 U.S.C.C.A.N. 5659, 5680; these judicially developed

doctrines have permitted our nation’s copyright statutes and the

First Amendment to coexist comfortably for two centuries.

In this balance between copyright and free speech interests,

and under the Copyright Act, a parodist might be unable to meet the

fair use criteria as grounds for copying a particular copyrighted

musical work without permission. He or she could, as an

alternative, seek a license to use the musical work: copyright

owners often do license their musical works to parodists. See, e. g.,

Charles J. Sanders & Steven R. Gordon, Stranger in Parodies:

Weird Al and the Law of Musical Satire, 1 Fordham Ent., Media &

Intell. Prop. L. Forum 11, 34-36 (1990) (noting that Weird Al

Yankovic obtains licenses to use near verbatim copies of

copyrighted music with his original parody lyrics).? Consent to a

license, however, can be denied. “In fact, this Court has held that a

who seeks to exploit the work.” Stewart v. Abend, 495 U.S. 207,

3. The Harvard Lampoon's several magazine parodies are examples of

works that not only have authorization, but also cooperation, from the creators

of the parodied works. See, ¢.g-, Scott Donation, Advertising Age, July 24, 1989,

at 52 (noting that the Forbes Magazine parody was developed “with the

cooperation and enthusiasm of Forbes Inc. Chairman Malcolm Forbes”); Joan

Mower, UPI, October 14, 1981, available in LEXIS, Nexis Library, UPI File

(“ ‘People’ magazine . . . gave permission for the Lampoon to imitate its style.

...Amemo from ‘People’ saying: ‘To: The Harvard Lampoon — Compliments

from the real thing,’ was printed in the parody.”); Parody Set, By Harvard

Lampoon, N.Y. Times, June 23, 1982, at D-16 (discussing the Newsweek parody

and noting that “the concept was . . . greeted at the real Newsweek with, if not

outright enthusiasm, at least with much cooperation”).

229 (1990) (holding that the owner of the copyright in the motion

picture “Rear Window” infringed the copyright in the underlying

story where the movie was re-released after the grant of rights in

the story had lapsed).

Denied a license, a parodist might, among other possible

options, seek a license for a different song; use a public domain

song, COMpose a new song to parody another song or some other

subject; or alter the planned use of the copyrighted musical work to

fit within the confines of fair use. If the parodist elects instead to

use the copyrighted musical work without license and is outside

the reach of fair use, he or she will, and should, be subject to a

finding of infringement. See, ¢.g., New Line Cinema Corp. v.

Bertlesman Music Group, Inc., 693 F. Supp. 1517, 1524(S.D.N.Y.

1988).

That is the precise lesson of the Harper & Row case, in which

this Court found a news report on President Ford’s pardon of

President Nixon to be a copyright infringement because the

magazine excessively appropriated President Ford’s unpublished

memoirs. Inherent in the copyright monopoly recognized by

Article I, Section 8, Clause 8 of the Constitution and enacted by

Congress is a restriction on the use of copyrighted works:

In our haste to disseminate news, it should

not be forgotten that the Framers intended

expression. By establishing a marketable right

to the use of one’s expression, copyright

supplies the economic incentive to create and

disseminate ideas.

Harper & Row, 471 U.S. at 558. This Court achieved in Harper &

Row the balance of interests intended by Congress. Notably, after

the Harper & Row case, Congress amended § 107 solely to state

~~ _—_— j—_,

4 et) oe at oe

that an unpublished work is subject to the fair use defense, see 17

U.S.C.A. § 107 (Supp. 1993); Congress did not alter § 107 to give

presumptive fair use treatment to any type of work. The balance

struck by the Court has thus been revisited by Congress and found

just. There is no sound basis for the logic of several amici that the

Court should now reverse course and permit any author of a parody

to make totally unrestricted use of copyrighted works, subject only

to whether the parody fulfills the demand for the parodied work.

See Monessen Southwestern Ry. v. Morgan, 486 U.S. 330, 338-39

(1988) (recognizing that Congress’ failure to disturb a judicial

interpretation of a statute that has been otherwise amended

provides “some indication that ‘Congress at least acquiesces in,

and apparently affirms, that (interpretation].’ ” (quoting Cannon v.

University of Chicago, 441 U.S. 677, 703 (1979)).

C. The Fair Use Factors Allow a Sensible Balance Between

the Copyright Owner and the Parodist.

There is no cause for a sea change in the law of fair use. Both

before and after enactment of the Copyright Act, the lower courts

have applied the fair use factors now codified in § 107 to claimed

parodies. There appears to be no conflict among the circuits.

Reflecting the exercise of an equitable rule of reason, courts over

the last thirty years have found some claimed parodies to be

infringing works, see, e.g., Rogers v. Koons, 960 F.2d 301 , 309 (2d

Cir.), cert. denied, 113 S. Ct. 365 (1992); MCA, Inc. v. Wilson, 677

F.2d at 185; and others to meet the fair use defense, see, e.g., Fisher

v. Dees, 794 F.2d at 440; Berlin v. E.C. Publications, Inc. , 329 F.2d

541, 545 (2d Cir.), cert. denied, 379 U.S, 822 (1964). In the

meantime, parody has been alive and well in the United States —

indeed, as recounted in detail by petitioners’ amici, parody has

been flourishing.

As the law has developed, courts have added nuances to the

fair use factors that are especially relevant when a claimed parody

is present. The Songwriter/Publisher amici urge that the Court

include these nuances, to which we now turn, in ruling on fair use

in this case.

1. Purpose and Character of the Use

The threshold question in a fair use parody case is whether the

defendant actually intended to, and did, create a parody. Because

invocation of the word “parody” can potentially turn an

infringement into a protected use, the courts have properly

scrutinized the true purpose of the defendant’s work. See, e.g.,

New Line Cinema, 693 F. Supp. at 1525 (expressing “serious

doubts” whether defendant’s video was a parody). As the Second

Circuit has aptly observed:

We are not prepared to hold that a commercial

composer can plagiarize a competitor’s

copyrighted song, substitute dirty lyrics of his

own, perform it for commercial gain, and then

escape liability by calling the end result a

parody or satire on the mores of society. Such a

holding would be an open-ended invitation to

musical plagiarism.

MCA, Inc. v. Wilson, 677 F.2d at 185; cf. Harper & Row, 471 U.S. at

557 (“The promise of copyright would be an empty one if it could

be avoided merely by dubbing the infringement a fair use ‘news

report’ of the book.”).

A vital aspect of the inquiry is to determine the target of the

claimed parody; there is no need to draw upon a copyrighted work

if the parodist has nothing to say about that work itself. Thus, in

Rogers v. Koons, the Second Circuit held that the “purpose and

character of the use” factor cut against a finding of fair use because

the defendant’s sculpture, which was slavishly copied from

plaintiff’s photograph, sought only to parody society at large and

not the photograph itself. See Rogers v. Koons, 960 F.2d at 310.

The court stated:

It is the rule in this Circuit that though the satire

need not be only of the copied work and may

... also be a parody of modern society, the

copied work must be, at least in part, an object

of the parody, otherwise there would be no

need to conjure up the original work.

Id.; see also Fisher v. Dees, 794 F.2d at 436 (holding that the

defendant’s song “intended to poke fun” at the copyrighted song,

and was not “used merely as a vehicle to achieve a comedic

objective unrelated to the song, its place and time”); Metro-

Goldwyn-Mayer, Inc v. Showcase Atlanta Coop. Prods., Inc., 479

F. Supp. 351, 357 (N.D. Ga. 1979) (holding that, in order for a

parody to receive fair use protection, it must “make some critical

comment or statement about the original work which reflects the

original perspective of the parodist — thereby giving the parody

social value beyond its entertainment function”).

In addition to the purpose, courts look to the commercial or

non-commercial character of the use. In Sony, this Court stated

that “every commercial use of copyrighted material is

presumptively an unfair exploitation of the monopoly privilege

that belongs to the owner of the copyright.” 464 U.S at 451.

Quoting this language in Harper & Row, the Court added that a

desire for monetary gain does not alone tilt this factor against a

finding of fair use; rather, the focus is on the degree of exploitation:

The crux of the profit/nonprofit distinction is

not whether the sole motive of the use is

monetary gain but whether the user stands to

profit from exploitation of the copyrighted

material without paying the customary price.

Harper & Row, 471 U.S. at 562. Put another way, if the intended

exploitation unfairly deprives the copyright owner of

compensation, the use is not likely to survive as a defense under an

equitable rule of reason.

There is a range of commercial exploitation in the area of

parody. One important element is how ephemeral a use is made of

a work. As certain of petitioners’ amici recount, parodists who

specialize in political humor are constantly changing their material

with events of the day. The use of a given song might be only a

snippet of one performance, a small part of a show soon replaced

by other parodies.

Another important element of fair use analysis is the context

of the use; a parody included in a textbook or newspaper, even if

the publisher seeks a profit, is part of an educative work. See Twin

Peaks Prods., Inc. v. Publications Int’l, Ltd., Nos. 92-7933, 92-

7985, 1993 U.S. App. LEXIS 13454, at *17 (2d Cir. June 7, 1993)

(“Most publishers of traditional ‘educational’ works hope to make

a profit, and in many cases ... publishers of traditional

‘commercial’ work have at least the pretense and often the reality

of enlightening the public.”); Pillsbury Co. v. Milky Way Prods.,

Inc.,215 U.S.P.Q. 124, 131 (N.D. Ga. 1981) (“Social commentary

placed in a newspaper or magazine is not put to acommer{cial] use

simply because the publication is sold rather than given to the

public.”). Indeed, some persons who are paid for their work

display a greater concern for its wide dissemination than for

potential royalties. Cf. Sony, 464 U.S. at 445 (noting that, in his

testimony, television educator Fred Rogers “expressed the opinion

that it is a real service to families to be able to record children’s

programs and to show them at appropriate times”).

The opposite extreme is what most concerns the Songwriter/

Publisher amici: permanent recordings that are sold for a profit,

with the degree of concern rising with the level of mass marketing

——— >

UR AMBRs cak 4M. we Ais

activity. Parodists in this category are profit motivated; they are

not giving their albums away or waiving their own copyright

interests. The mechanical right — and the corollary mechanical

royalties it produces upon the distribution of phonorecords — is a

critical element in the livelihoods of songwriters and publishers. A

use of a copyrighted musical work in a mass-marketed parody

recording should be treated as presumptively unfair, since the

parodist is seeking to exploit the copyrighted musical work for

substantial income “without paying the customary price.” Harper

& Row, 471 U.S. at 562; see also Twin Peaks, 1993 U.S. App.

LEXIS 13454, at *19 (“We have been more solicitous of the fair

use defense in works, which though intended to be profitable,

aspired to serve broader public purposes.”).

2. Nature of the Copyrighted Work

The second factor should, in parody cases, almost invariably

weigh against a finding of fair use. Parodied works are typically

creative, not factual, and are given greater protection from

infringement. See, e.g., Rogers v. Koons, 960 F.2d at 310. Courts

also consider whether the original work was made in anticipation

of a financial return, see id. at 312; more often than not, parodied

works have been created and published with a view to exploiting

the panoply of exclusive rights Congress provided.

This second factor should weigh heavily against a finding of

fair use in musical parody cases. Under § 115, Congress has

assured access to copyrighted musical works for those who wish to

make new versions of them — provided the mechanical royalty is

paid and the user does not fundamentally alter the musical work.

The fair use defense, where sustained, excuses a user from the

statutory fee and the restrictions against alteration of the musical

work. In view of the balance Congress has already struck in § 115

between copyright owners and prospective users of musical works,

courts should, under this second factor, lean away from denying

musical works.*

3. Amount and Substantiality of the Use

Extensive appropriation of a copyrighted work is generally

inconsistent with a finding of fair use. See MCA, Inc. v. Wilson,

677 F.2d at 183. Courts do not permit parodists “to take as much of

a component part [of the copyrighted work] as they need to make

the ‘best parody.’ Instead, their desire to make the ‘best parody’ is

balanced against the rights of the copyright owner in his original

expressions.” Walt Disney Prods. v. Air Pirates, 581 F.2d at 758;

see also Harper & Row, 471 U.S. at 560-69 (refusing to allow a

magazine to publish the best news report where it appropriated

excessive portions of the copyrighted work).

The Ninth Circuit has fashioned three helpful considerations

for “determining whether a taking is excessive under the

circumstances — the degree of public recognition of the original

work, the ease of conjuring up the original work in the chosen

medium, and the focus of the parody.” Fisher v. Dees, 794 F.2d at

439. As in both the Second and Ninth Circuits, courts should

4. Relying on this Court's observation in Harper & Row that “the scope of

fair use is narrower with respect to unpublished works,” 471 U.S. at 564, the

dissent below concluded that the fact that “Oh, Pretty Woman” is a published

musical work should tip this second fair use factor in favor of 2 Live Crew. See

972 F.2d at 1144. In the face of certain cases after Harper v. Row that suggested

an unpublished work was never subject to the fair use defense, Congress

amended § 107 to provide expressly that the defense is applicable to unpublished

works. See 17 U.S.C.A. § 107 (Supp. 1993); H.R. Rep. No. 836, 102d Cong., 2d

Sess. 4-5 (1992). This Court should nip in the bud the notion that the fact of

publication can somehow be scored against the copyright owner of the copied

work in applying the second fair use factor. The concept advanced by the dissent

would expose the vast majority of copyrighted works to an unjustifiably

expanded defense of fair use.

examine whether the defendant took more than is required to recall

or conjure up the original work. See 3 Nimmer § 13.05(C), at 13-

102.28(16) to -102.28(17) (1992); see also S. Rep. No. 473, 94th

Cong., Ist Sess. 61 (1975) (stating that “use in a parody of some of

the content of the work parodied” might be among “the sort of

activities” treated as fair use (emphasis added)).

Brevity weighs in favor of a finding of fair use. The defense

was sustained in a musical parody case where the parody of a full

length song ran only twenty-nine seconds, see Fisher v. Dees, 794

F.2d at 438, and in another case where the parody lasted only

eighteen seconds, see Elsmere Music, Inc. v. National

Broadcasting Co., Inc., 482 F. Supp. 741, 747 (S.D.N.Y.), aff'd per

curiam, 623 F.2d 252 (2d Cir. 1980). In contrast, a full length

parody typically involves a substantial taking of the copyrighted

musical work, which should tilt this third factor against a finding of

fair use.

4. Effect of the Use Upon the Potential Market for or Value of

the Copyrighted Work

This Court has already framed the governing standards for the

fourth fair use factor. “[T]o negate fair use one need only show that

if the challenged use ‘should become widespread, it would

adversely affect the potential market for the copyrighted work.’ ”

Harper & Row, 471 U.S. at 568 (quoting Sony, 464 U.S. at 451

(emphasis added)). “This inquiry must take account not only of

harm to the original but also of harm to the market for derivative

works.” Jd. An adverse effect on any of the bundle of rights

provided to copyright owners should tilt this factor against a

finding of fair use. See id. “What is necessary is a showing by a

preponderance of the evidence that some meaningful likelihood of

future harm exists. If the intended use is for commercial gain, that

likelihood may be presumed.” Sony, 464 U.S. at 451 (emphasis in

Original).

The Court is urged by several amici to find that a parody will

not disturb the market of an original music work; it is said that

parody reaches a different target audience. The Songwriter/

Publisher amici dispute this proposition. The pertinent issue is

whether there is some meaningful likelihood of harm to any of the

potential markets for an original song. If the Court were to reverse

the Sixth Circuit opinion and in doing so alter the fair use standard,

songwriters and music publishers would potentially suffer at least

five types of harm.

First, despite the assertions of petitioners’ amici, substantial

numbers of parodies are licensed (325a). For example, the Sixth

Circuit observed that Weird Al Yankovic — a parodist who records

and markets derivative works substituting comedic lyrics while

making near verbatim use of copyrighted music — secures licenses

from copyright owners. See 972 F.2d at 1432-33 n.3. Petitioners

themselves equated “Pretty Woman” to Yankovic parodies (87a).

Yankovic has released at least five albums to date containing

dozens of licensed parodies, generating substantial royalty income

for copyright owners. See Sanders & Gordon, supra, at 36. He has

taken licenses of the songs of such composers as Michael Jackson

and Billy Joel. Other parodists who have obtained licenses from

Harry Fox, acting on behalf of its clients, are Joe Piscopo, Dickie

Goodman, Spike Jones, Sheb Wooley, and the producers of

“Forbidden Broadway,” an off-Broadway review. If parodists are

told they may avoid the customary price by invoking the words

“fair use,” there will be no incentive for them to pay copyright

owners.

Second, an expansion of the fair use defense for parody might

also interfere with licensing of full lyric substitutions. Harry Fox

has issued licenses on behalf of its publisher clients for derivative

works which, though not described as parodies, completely

substitute a new set of lyrics for use with a copyrighted musical

work. One of the most successful examples is the Beach Boys’

“Surfin’ U.S.A.,” which was a licensed use of the music of Chuck

Berry’s “Sweet Little 16.” “Surfin’ U.S.A.” has earned millions of

dollars in mechanical royalties and continues to be actively

licensed some thirty years after release. The derivative work was

not treated as a parody when licensed. If all that is required to

avoid the need for a license and the obligation to make payments is

to say that the new lyrics poke fun at something — like the

California lifestyle — there will be a major breach in the

protections intended for copyright owners under the Copyright

Act.

Third, a revision of the boundary between a fair use parody

and an infringing parody might embolden advertisers to claim fair

use when copyrighted songs are incorporated into ad campaigns.

Sometimes a musical work is simply used in an ad, but often the ad

writer makes a parody use of a song. Harry Fox and its publisher

clients have issued hundreds of licenses annually for parody uses

of musical works in ads. For 1992 alone, Harry Fox collected for

its publisher clients almost $4 million from licensed ads, of which

half was from licensed ad parodies; these collections represent

about 20% of licensed ads using musical works. Unlicensed use of

musical works in the promotion of products under current case law

is typically not fair use. See, e.g., Tin Pan Apple, Inc. v. Miller

Brewing Co., Inc., 737 F. Supp. 826, 831 (S.D.N.Y. 1990); DC

Comics, Inc. v. Crazy Eddie, Inc., 205 U.S.P.Q. 1177, 1178

(S.D.N.Y. 1979). It should not be transformed into a free use under

the rubric of “parody.”

Fourth, an expansion of fair use for parody would jeopardize

the ability of copyright owners to license rap versions of their

music. While many rap songs are original compositions, others are

derivative versions of copyrighted musical works. It is in the

nature of rap music that the basic elements of songs are altered (34a

at{ 15). These changes are often fundamental alterations, and thus

require licenses from copyright owners under §§ 106 and 115. For

example, Markey Mark & the Funky Bunch have made a licensed

rap version of the rock song, “Take a Walk on the Wild Side,” and

Run DMC of the rock song, “Walk This Way.” If the rap approach

to a popular song is treated as “parody” because some changes

might be seen as satirizing the original musical work and its

underlying values — or, worse, is treated as “parody” because the

changes make a social commentary without ridiculing the

copyrighted work itself — the royalty income due the copyright

owner will be forfeited. Moreover, the release of a “parody” rap

version of a song might discourage other rap groups from making

licensed rap versions of that song. At stake is a vast market, now

separately charted in Billboard and representing some 10% of all

album sales. Congress did not intend in §§ 107 and 115 of the Act to

make traditional versions of a copyrighted work subject to the

mechanical royalty while exempting an entire category of music

from the customary price.

Fifth, a full length version of a song that is widely distributed

can saturate the market and discourage other users. This is

especially true of a derivative work that takes the melody of an

original song but substitutes a different set of lyrics. Careful

exploitation of a musical work is an important part of the

marketing program of the music publisher (324a). A song

originally released in one style (e.g., pop) has the potential for

adaptation to sound recordings in other styles (e.g., country or rap).

Musical works are also licensed for other types of uses, such as

motion pictures. For example, Dolly Parton’s “I Will Always Love

You” was initially released in 1974 as a country music song and

became a #1 hit; was revived in the movie “The Best Little

Whorehouse in Texas” in 1984 and became a #1 hit again; and was

covered once more in the Whitney Houston rhythm and blues

version featured in the film “The Bodyguard” and went on to sell in

excess of four million copies. When licenses are issued for parody

versions of songs, restrictions are often placed on the uses to be

made in order to avoid undermining other potential uses. A

redefinition of fair use to widen free copying for parodies would

deprive copyright holders of this ability to maximize the

exploitation of their works.

The likelihood of harm in any given parody case will vary; the

fair use test of §107 is a sensitive barometer. Certain parodies of

musical works will qualify as fair uses, with the consequence that

the copyright owners of those works are not entitled to royalties

from the parodists or other compensation for economic harm. It is

no less true that other parodies of musical works will not constitute

fair uses, so that the parodists using those works must have licenses

to be shielded from infringement liability. This demarcation does

not mean courts are being called upon to censor parodies. Instead,

courts are required — as they have been since Justice Story’s

opinion in Folsom v. Marsh, 9 F. Cas. 342 (C.C.D. Mass. 1841)

(No. 4901) — to test each chalienged use under the factors of

§ 107, looking at objective aspects such as amount taken and

potential economic harm and not at aesthetic value. What seems

clear beyond question is that the Court should decline the

invitation to jettison the carefully evolved fair use factors in order

to unleash a sweeping privilege to copy in favor of parodists.

Il. 2 LIVE CREW’S “PRETTY WOMAN?” IS NOTA FAIR

USE OF “OH, PRETTY WOMAN.”

Under the terms of § 107, as enacted by Congress and applied

by the courts, 2 Live Crew has infringed Acuff-Rose’s copyright in

“Oh, Pretty Woman.” The determination of the Sixth Circuit

should be affirmed. Acuff-Rose will undoubtedly present to the

Court, in broad strokes and in close detail, the reasons why an

affirmance is warranted. The Songwriter/Publisher amici set forth

below key facts that compel a finding of infringement. Put another

way, we highlight the concern that allowing the defense of fair use

in this case would threaten to bring about the adverse

consequences for songwriters and music publishers described

above (Point IC).

Within the range of commercial exploitation in the area of

parody, 2 Live Crew’s “Pretty Woman” is at the height; a more

commercial use would be hard to imagine. At the time the album

As Clean As They Wanna Be was about to be released, 2 Live Crew

had already released two albums that had “gone Gold” (87a) —

that is, sold more than 500,000 units (324a). The new album

containing “Pretty Woman” was conceived for the mass market; it

was predicted by petitioners’ agent that the album “will be heard

by hundreds of thousands” of persons (88a). By the time of the

district court proceedings, this goal had been achieved; 248,000

copies had been sold (85a).

There is no indication in the record that petitioners intended to

waive the income that would come to them through the sale of the

album. Quite to the contrary, the disc label states

“UNAUTHORIZED DUPLICATION WILL GET YOU MESSED

UP” (90a). That colloquial formulation, together with the more

traditional copyright notice on the album, confirms that petitioners

were themselves seeking the protections of the Copyright Act that

they now wish to deny to Acuff-Rose. See also Pet. Br. 37-38.

Petitioners did not always hold this position. At or about the time

that the album was released, petitioners understood that they were

engaged in a commercial venture and that Acuff-Rose should be

entitled to at least the compulsory license fee (85a).

Petitioners and their amici express concern about this Court’s

repeated statement that “every commercial use of copyrighted

material is presumptively an unfair exploitation of the monopoly

privilege that belongs to the owner of the copyright.” Harper &

Row, 471 U.S. at 562; Sony, 464 U.S. at 451. This concern, against

the present record, is wholly misplaced. The first factor must

weigh strongly against a finding of fair use. If the Court were to

find in favor of 2 Live Crew, petitioners could justifiably call their

next album As Commercial As They Wanna Be.

The second factor also weighs heavily in Acuff-Rose’s favor.

“Oh, Pretty Woman” is a creative work. Because it is a musical

work, the compulsory license of § 115 is applicable, permitting a

user to make a sound recording of the work subject to the statutory

royalty and other provisions of that section. To make a version of

this musical work that fundamentally changes its character,

however, ordinarily requires express authorization from the

disturbed.

The third fair use factor adds markedly to the case against the

fair use defense. There is little doubt that 2 Live Crew took a

qualitatively substantial amount of “Oh, Pretty Woman,” including

repeated use of the most familiar musical passage of the song (32a,

139-40a). There was no need for such a substantial taking to

conjure up the well-known “Oh, Pretty Woman”: the song was a hit

upon its release and has long been a “standard” that generates

significant mechanical royalties (143-44a). Petitioners’ full length

song, drawing substantially from the original quantitatively in

addition to qualitatively, is far different from the twenty-nine

second parody accorded fair use treatment in Fisher v. Dees or the

eighteen second parody accorded fair use treatment in Elsmere.

Finally, 2 Live Crew is in the business of making and

distributing phonorecords. A major aspect of the exploitation of

“Oh, Pretty Woman” — as expressly provided under §106 of the

royalties). See 17 U.S.C. § 106(3). While 2 Live Crew has asserted

a parody defense, that is not how it positioned its album in the mass

market. Nowhere on the album is there a reference to “parody”; on

the contrary, the album gives credit to the composers of “Oh, Pretty

Woman” and acknowledges copyright ownership by Acuff-Rose

(90a). This album should be viewed as in direct competition with

licensed recordings of the original work. Moreover, this version

clearly presents competition for prospective rap versions of the

song and for prospective parodies of “Oh, Pretty Woman.” Other

parodists have shown an interest in the song, making unauthorized

versions in the wake of the district court’s finding that “Pretty

Woman” was not an infringement (326a). A full length, mass-

marketed recording of a musical work by a best selling group —

especially where, as here, any listener would be able to identify the

recording as a version of the original! (140a) — is bound to affect

potential markets for derivative works of the original copyrighted

song. In sum, the fourth fair use factor also weighs heavily against

a finding of fair use.

This case could, but need not, be decided largely on the

presumption arising from commercial use. There is also ample

supporting detail to tilt all factors of the fair use analysis strongly

against a finding of fair use.

CONCLUSION

The Court should affirm the judgment of the court below.

Dated: June 28, 1993

Respectfully submitted,

MARVIN E. FRANKEL

Counsel of Record

MICHAEL S. OBERMAN

KRAMER, LEVIN, NAFTALIS,

NESSEN, KAMIN & FRANKEL

919 Third Avenue

New York, New York 10022

(212) 715-9100

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.