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

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## Record

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

## Text

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
ee

. 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

Se

ee

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

ul

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
28

CONCLUSION on cccccccccccsccncsssseusueeennee

ui

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

iv
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

vi
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
Copyright § 8.04(F)(1991) .......... cece eee eeee 10
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

l

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,

v.

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

2

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
Copyright Act favorable to music publishers, to educate the public
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.”

3

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
Copyright Act, allowing courts to balance and resolve the tension
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

ee

4

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

5

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.

6
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
copyright in this song and has met all statutory requirements to
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
Copyright Act in clear focus, we then show how the fair use factors
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).

Ko

7

A. Musical Works Are Given Broad Protection Under the
Copyright Act.

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

8

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,

9

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
copyright owner.' The section provides for payment of a royalty to
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.

10

to protection as a derivative work under this
title, except with the express consent of the
copyright owner.

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
copyright owner. See 17 U.S.C. §115(a)(2); see also 2 Melville B.
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

11

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,

12

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
copyright protection . . . : ‘originality’ ‘and fixation in tangible form.’ ” (Pet.
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.

13

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
copyright owner has the capacity arbitrarily to refuse to license one
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”).

a

14

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
copyright itself to be the engine of free
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

15

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

16

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

17

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.

18

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

19

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

20

copyright owners their royalties from, and their control over,
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.

3
|
i
*

21

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).

22

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’

23

“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

24

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

25

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).

26

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.

27

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
copyright owner, and the balance of § 115 should not be quickly
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
Copyright Act — is the sale of phonorecords (yielding mechanical
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

28

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0382%3A15. Public record. Not legal advice.