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

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——

LUTHER R. CAMPBELL A/K/A LUKE SKYYWALKER, et al.,

Petitioners,

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ACUFF-ROSE MUSIC, INC.,

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Respondent.

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tala ge lit Wace oa Hie

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

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Counsel of Record

CHARLES S. SIMS

JON A. BAUMGARTEN

PAUL H. EPSTEIN

PROSKAUER ROSE GOETZ

& MENDELSSOHN

1585 Broadway

New York, New York 10036

(212) 969-3000

Attomeys for Amici Curiae

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ellen a

TABLE OF CONTENTS

Page

pe ili

INTEREST OF AMICI CURIAE .................004.5. l

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

gt Ee 3

I. COPYRIGHT LAW, THE ENGINE OF CREATIVITY

AND FREE EXPRESSION, GRANTS COPYRIGHT

OWNERS FOR A LIMITED PERIOD THE RIGHT

TO DECIDE HOW AND IN WHAT MANNER TO

EXPLOIT THEIR WORKS — SUBJECT TO A

NARROW FAIR USE DEFENSE ........... coer §

A. Fair Use Is A Limited Defense To A Copyright

Owner’s Statutory Rights of Exclusivity

in Copyrighted Expression.................. 5

B. Congress Refused to Subject Songwriters to

Compulsory Licenses for Phonorecords That Would

Impair Their Creative Control or the Integrity of

I so eso eb ee 8 0 8 6

Il. PARODIC, SATIRICAL OR HUMOROUS USES

ARE ELIGIBLE FOR FAIR USE ONLY UPON

TRADITIONAL FACT-INTENSIVE, CASE-BY-CASE

ANALYSIS, NOT ON A CATEGORICAL BASIS .... 10

A. Case-By-Case Consideration, Required For Fair Use

Determinations Generally, Is Mandated By The

Variety Of and Differences Among Works Considered

ease Ok ei a pe a 6 ee 8 10

B. Parodies Are Not Entitled to Generic Special

Treatment Denied to Other Categories of Speech

Eligivie to be Fair Uses .... wc ee eee 15

Page

Ill. STATUTORY FOUR FACTOR ANALYSIS AND

RELEVANT EQUITABLE CONSIDERATIONS

COMPEL REJECTION OF ANY PRESUMPTION

FAVORING PARODIES OR SATIRES AS A FAIR USE 18

A. First Factor — Purpose and Character of the Use .. 18

1. A Profit-Motivated Commercial Use For

Entertainment Purposes Disfavors Fair Use ... 18

2. First Amendment Considerations Do Not

Categorically Favor Fair Use for Parodies,

Satires or Humorous Uses .............. 19

3. The Extent of Any Productive and Transform-

ative Use is Part of First Factor Analysis.... . 20

B. Second Factor — The Nature of the Copyrighted

Work ....000000050 6 6 ee 21

C. Third Factor — The Amount and Substantiality of the

Postion Uses ....50008086 655 ee 21

D. Fourth Factor — Harm to the Potential Market For or

Value of the Week .... 2s cs0e ee ee eee 23

1. Users Have the Burden of Showing that

Widespread Uses Like Theirs Would Be Unlikely

To Deprive Owners of Potential Licensing

Revenues... seo een be eee 23

2. Tarnishment of the Work and Satiation of Its

Potential Audience Can Have a Serious Adverse

Effect on the Copyright Owner’s Ability to

License Future Uses...» ecees neues eee 25

E. Summing Up the Factors And Deciding the Case .. 28

CONCLUSION ....0000000e8 6 5 6 ee 29

ADDENDUM A

EXAMPLES OF LICENSING BY AMICI CURIAE .... A-1

ADDENDUM B

PARODIES IDENTIFIED BY PETITIONERS AND

THEIR AMICI THAT WOULD NOT HAVE NEEDED

TO RELY ON A FAIR USE DEFENSE .......... B-1

ill

TABLE OF AUTHORITIES

Cases Page

Association of Am. Med. Coll. v. Cuomo,

928 F.2d 519 (2d Cir.),

cert. denied, 112 S.Ct. 184(1991) ............... 24

Berlin v. E.C. Publications, Inc.,

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

Gee. Gee, Bee wm. Gas (ISGS) ww wt es 23

D.C. Comics, Inc. v. Unlimited Monkey Bus., Inc.,

598 F. Supp. 110 (N.D. Ga. 1984) ............ 13, 21

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

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

EE, UD ow te oe 12, 22, 23

Feist Pub., Inc. v. Rural Tel. Serv. Co..,

EE 20

Financial Info., Inc. v. Moody’s Investors

Serv., Inc., 751 F.2d 501 (2d Cir. 1984),

cert. denied, 484 U.S. 820 (1987) ................. 24

Fisher v. Dees,

794 F.2d 432 (9th Cir. 1986) .............. 11, 12, 23

Gilliam v. American Broadcasting Co.,

ES Ee 3

Harper & Row, Publishers, Inc. v. Nation

ER passim

In re Capital Cities/ABC, Inc.,

Ee 20

Page

Maxtone-Graham v. Burtchaell,

803 F.2d 1253 (2d Cir. 1986),

cert. denied, 481 U.S. 1059 (1987) ..............4.. 5

Mazer v. Stein,

4) & | Peevrerrecrere cer TTT. 5

MCA, Inc. v. Wilson,

677 F.2d 180 (2d Cir. 1981) ...........245.. passim

Narell v. Freeman,

tS | ff 1. Ferrer rrr rrr er 24

New Era Pub. Int'l ApS v. Carol Pub. Group,

904 F.2d 152 (2d Cir.), cert. denied,

— | 8 fd APPT ee TP TCE TEP 23

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

693 F. Supp. 1517 (S.D.N.Y. 1988) ............-.. 27

Rogers v. Koons,

960 F.2d 301 (2d Cir.), cert. denied,

SG, DED s és ba deweceveeeesiewnons 11

Schnapper v. Foley,

667 F.2d 102 (D.C. Cir. 1981),

cert. denied, 455 U.S. 948 (1982)... ........... 6, 20

Sony Corp. v. Universal City Studios, Inc.,

ee ee ae ee ae ee passim

Stewart v. Abend,

ff |) es | PPV TT ETT TELE passim

Twin Peaks Productions, Inc. v. Publications

Int'l, Lid., No. 92-7933, 1993 U.S. App.

LEXIS 13454 (2d Cir. June 7, 1993) .............: 19

Page

Walt Disney Prods. v. Air Pirates,

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

cert. denied, 439 U.S. 1132 (1979) ............... 22

Warner Bros. v. American Broadcasting Cos. ,

en a a bie bo eee een 22

Young v. American Mini-Theatres, Inc,

ne ee ia Sa de race tea 26

Statutes, Rules and Regulations

The 1976 Copyright Act:

te 4k eat anal Dik pinata a Sarna 7

I a a ga a tel nate eter Sra aie 5-7, 27

ee” 14

EES EEA Meret Sew et hela pay 5 passim

if 4 | Ae Perey rr ee 5

fh Xs A PrrTerrrrr TT ere es passim

Legislative Materials

H.R. Rep. No. 90-83,

Ss CG, GED occ st ede ete s ee eee 24

H.R. Rep. No. 94-1476,

PG MU OED oo weutceeeeceeces 8, 17

S. Rep. No. 94-473,

Sees CU GEE pe cbedWececeuaces 8, 15

Page

Other Authorities

David Broder, What A New Justice Needs:

Intellect Seasoned With Street Smarts,

Pe CME beccéeeceuesecceseeses 12

J. Thomas McCarthy, McCarthy on Trademarks

and Unfair Competition (3rd ed. 1992) ............. 26

M. and D. Nimmer, Nimmer on

DEED. senbeceneaceceoenrens 8, 20, 22, 24

Note, An Author's Artistic Reputation

Under the Copyright Act of 1976,

ee tt eee eeeeeeees 3

Oxford English Dictionary, Vol. Il (1978) .............. 18

Oxford English Dictionary

CED .csaccesseceecenseceont 10

Paul Goldstein, Copyright (1989) ............... 8, 13, 20

The American Heritage Dictionary,

Second College Edition (1991) ............... 11, 18

Webster's Third New International Dictionary (1976) .... 11, 18

Wendy J. Gordon, A Property Right in Self-Expression:

Equality and Individualism in the Natural

Law of Intellectual Property,

ee ccc ec dee erseceoeececs 11

Wendy J. Gordon, Fair Use as Market Failure:

A Structural and Economic Analysis of the

Betamax Case and its Predecessors,

Se ie ED 6. 0s asesececocns 10, 16

INTEREST OF AMICI CURIAE

This brief supporting respondent is submitted in opposition to

the misplaced efforts of petitioners and their supporters to persuade

this Court to carve out a special presumption favoring commercial

parody as a fair use. That presumption would be contrary to the

Statutory fair use scheme and principles authoritatively expressed in

prior decisions.

This brief is filed, with consent of the parties, on behalf of

writers and composers (or their heirs) of many of the most well-

known, celebrated and prized works of 20th century American music,

who believe that their experience and perceptions may be helpful to

this Court’s further articulation of fair use principles in the context of

this case. This amici group consists of songwriters and composers

Fred Ebb, John Kander, Jerry Leiber, Alan Menken, and Mike

Stoller, and the estates or trusts of such luminaries as Irving Berlin,

Leonard Bernstein, George Gershwin, Ira Gershwin, Oscar

Hammerstein, Lorenz Hart, Dorothy and DuBose Heyward, Jerome

Kern, Alan Jay Lerner, Frederick Loewe, Cole Porter and Richard

Rodgers, whose musical works are so numerous and well-known that

they need no further identification.

SUMMARY OF ARGUMENT

1. There is no more reason for according commercial or

other parodies and satirical uses a favorable presumption of fair use

than there was in Harper & Row, Publishers, Inc. v. Nation Enter.,

471 U.S. 539 (1985) (“Harper & Row”), where this Court rejected

a similar plea for special treatment of news reporting uses. Whether

a given use of copyrighted expression claimed to be a parody or

Satirical use is fair use should be governed by the statutory factors

and equitable considerations whose application Congress directed on

the facts of each case, and that guided this Court’s fair use analysis

in Harper & Row, Sony Corp. v. Universal City Studios, Inc., 464

U.S. 417 (1984) (“Sony”), and Stewart v. Abend, 495 U.S. 207

(1990) (“Stewart”). See pp. 5-6, 10-28. On the facts of this case,

such fair use analysis should result in affirmance of the judgment

below. See p. 29.

2. Amici and the many others like them are the intended

beneficiaries of Section 115 of the 1976 Copyright Act (17 U.S.C.

§ 115), which — in a key provision inexplicably omitted from

discussion in the briefs of petitioners and most of their amici —

excludes from its statutory compulsory license the making and

distribution of recorded performances that pervert, distort, travesty or

otherwise alter the “fundamental character” of a copyrighted song.

This exclusion was intended and has the effect of granting songwriters

and their heirs enforceable rights of creative control and the means to

protect the artistic integrity of their works. Copyright owners may

choose to grant others permission to make fundamental changes of the

song, and to exploit the market in that way, but they may also decline

to do so. If parodies are presumptively fair use, however, then the

control provided by § 115 is purely illusory and amici’s songs and

music may generally be perverted, distorted and travestied or

otherwise altered in the name of parody or satire. See pp. 6-9.

3. It is easy to claim that a work is a parody or a satire, and

if the judgment below were reversed the number of those who would

use the songs of the amici and other successful writers and composers

for commercially exploitative purposes (whether for travesty, or to

free-ride on the original’s creativity or popularity), without asking for

permission, would promptly and substantially harm the value of their

works. A use like petitioners’ copying of the central musical theme

of “Oh, Pretty Woman,” on recordings of which more than 248,000

copies were sold, is not a fair use, and differs in decisive respects

from other particular uses that might, in given circumstances, qualify

as fair use in accordance with traditional fair use doctrine. See

pp. 23-28.

ao.

ARGUMENT

Amici have earned great artistic success by their many

creative achievements, and they continue actively to reap the

economic rewards of those efforts both by licensing performance and

recording of their works and by authorizing the creation, performance

and recording of derivative works. They have, for example,

extensively licensed their songs for performance in theaters and

cabarets, for use in films, radio and television, and for recordings,

and have authorized the creation, performance and recording of

parodies, satires, advertising themes and other derivative works based

on those songs. Examples of such licensed uses, including parodies

of amici’s works, are provided in Addendum A below.

In often agreeing to requests for such licensing or author-

ization, amici have, to their own economic benefit, disseminated their

works even more widely throughout the nation and indeed around the

world. When declining such requests, amici have often acted in the

belief that from an economic standpoint the proposed uses would

adversely affect the potential market for future performances of the

original work or of previously licensed derivative works, or

performances or licensing of new derivative works. On other

occasions, amici have declined such requests, with equal legitimacy,

on grounds of artistic integrity and creative control. '

See Harper & Row, 471 U.S. at 555, 564 (recognizing that copyright

protects artistic interest in creative control through, inter alia, strong

right of first publication); Stewart, 495 U.S. at 228 (“although

dissemination of creative works is a goal of the Copyright Act, the Act

creates a balance between the artist's right to control the work during

the term of the copyright protection and the public’s need for access to

creative works”) (emphasis added); Gilliam v. American Broadcasting

Co., 538 F.2d 14, 23 (2d Cir. 1976) (copyright, including exclusive

right to license derivative works, necessarily provides artists with right

to control artistic creation). See also Note, An Author's Artistic

Reputation Under the Copyright Act of 1976, 92 Harv. L. Rev. 1490,

(continued...)

A producer seeking a license for My Fair Lady might have a

reputation for mounting dreadful productions; or a proposed singer

might be thought incompetent; or a production at the Kennedy Center

might be deemed more “prestigious” than a production elsewhere; or

a production might alter or travesty the work and make it less

valuable in the long run, such as a recently proposed homosexual

production of Oklahoma under the title Oklahomo, for which a license

was denied. (Characterizing that production as a parody would not,

amici believe, make it fair use.)

When amici deny licenses to protect against tarnishment they

are not muzzling critical reviews. Criticism is not the same thing as

perversion, travesty or distortion, or other alteration of a copyrighted

melody or its lyrics seeking to hitchhike on its popularity. Neither

fair use nor the First Amendment provides an easy shelter for the

piggybacking use of a famous melody or its lyrics, in a substantially

altered form, where the purpose of that unauthorized use, however

characterized, is primarily for commercial gain. Neither do they

provide an easement authorizing third parties to take the heart or

essence of a copyrighted song, to substitute, for example, coarse or

vulgar lyrics, and to justify the distortion by calling it parody, satire

or social commentary.

Petitioners and their amici contend, in doomsday fashion, that

affirmance here would produce censorship antithetical to First

Amendment values that would immediately halt the further

distribution of socially important criticism and comment, and

therefore commercial parody should be given a preeminent favored

position in fair use doctrine. As a matter of precedent, experience

and public policy, both the premise and the conclusion of the

argument are wrong and should be rejected.

'(...continued)

1502-04 (1979) (describing how the Act enhanced rights of creative

control).

I. COPYRIGHT LAW, THE ENGINE OF CREATIVITY

AND FREE EXPRESSION, GRANTS COPYRIGHT

OWNERS FOR A LIMITED PERIOD THE RIGHT

TO DECIDE HOW AND IN WHAT MANNER TO

EXPLOIT THEIR WORKS — SUBJECT TO A

NARROW FAIR USE DEFENSE

A. Fair Use Is A Limited Defense To A Copyright Owner’s

Statutory Rights of Exclusivity in Copyrighted

Expression

Section 106 of the Copyright Act of 1976 (17 U.S.C. § 106)

grants the copyright owner of a song or other musical work, subject

to fair use under § 107 and other exceptions in §§ 108-120, the

exclusive right to engage in and authorize others to engage in the

following activities: “to reproduce the copyrighted work in copies or

phonorecords;” to “prepare derivative works based upon the

copyrighted work;” to publicly distribute copies or phonorecords of

the musical work; and to publicly perform the musical work. By

granting such exclusive rights, § 106 establishes marketable property

rights in accordance with the constitutional concept underlying

disseminate ideas.” Harper & Row, 471 U.S. at 558 (“the Framers

intended copyright itself to be the engine of free expression”); Mazer

v. Stein, 347 U.S. 201, 219 (1954).

By contrast, fair use under § 107 is a “limited exception” to

the property rights conferred by the Copyright Act, Maxtone-Graham

v. Burtchaell, 803 F.2d 1253, 1255 (2d Cir. 1986), cert. denied, 481

U.S. 1059 (1987). It is a “privilege” allowing the abridgment or

copying of copyrighted material in special circumstances without

obtaining permission from or compensating the copyright owner, thus

depriving the owner of the usual benefits of copyright protection.

Harper & Row, 471 U.S. at 549. It is an “affirmative defense re-

quiring a case-by-case analysis,” whose touchstone, as revealed by

such core fair uses as small quotations in reviews, critical articles,

news reporting and scholarship, is: “would the reasonable copyright

owner have consented to the use?” Harper & Row, 471 U.S. at 561,

550.

The fair use defense is equitable at its core. It requires

courts, on the particular facts of each case, to focus on and weigh all

of the statutory and other relevant considerations either favoring or

disfavoring a fair use in determining whether, on balance, there are

compelling equitable reasons to deprive the copyright owner of the

exclusive property rights granted in § 106. See Sony, 464 U.S. at

448; Harper & Row, 471 U.S. at 560.

Notwithstanding the limited and exceptional nature of the fair

use defense, exclusive rights of copyright are not antithetical to First

Amendment values, but are a central element of a legal structure that

fosters the creation of valuable works. Harper & Row, 471 U.S. at

546, 558; Schnapper v. Foley, 667 F.2d 102, 114 (D.C. Cir. 1981),

cert. denied, 455 U.S. 948 (1982). Copyright serves that purpose by

providing protections and sufficient inducements, most but not all of

which are economic, to that creative process. Copyright does not

hamper the free discussion of ideas or criticism of works, because the

“definitional balance” struck by the idea and facts-expression

dichotomy permits the presentation and use of ideas and facts without

restriction; only the form of expression is protected. Harper & Row,

471 U.S. at 556.

B. Congress Refused to Subject Songwriters to

Compulsory Licenses for Phonorecords That

Would Impair Their Creative Control or the

Integrity of Their Compositions

Any presumption that song parodies may be recorded and

distributed under the fair use doctrine would be incompatible with

Congress’s limitation on the scope of permitted use in § 115 of the

Section 115 is the statutory compulsory license that, where it

applies, authorizes any person to make and distribute phonorecords

of any previously recorded nondramatic musical work such as “Oh,

Pretty Woman” and the thousands of songs written and composed by

amici.’ That provision is relevant in analyzing the extent to which

parodies of songs are protectable as fair use because Congress

specifically excluded from the compulsory license any arrangement or

derivative work (which would include parody or satire’) that would

“change the . . . fundamental character of the work . . . except with

the express consent of the copyright owner.” 17 U.S.C. § 115(a)(2)

(emphasis added).

As explained by the House and Senate reports accompanying

passage of the 1976 Copyright Act, the statutory license provisions

and limitations of § 115 were

intended to recognize the practical need for a limited

privilege to make arrangements of music being used

> Section 115 provides, in pertinent part:

In the case of nondramatic musical works, the exclusive rights

provided by clauses (1) and (3) of section 106, to make and

distribute phonorecords of such works, are subject to compulsory

licensing under the conditions specified by this section.

(a) AVAILABILITY AND SCOPE OF COMPULSORY

LICENSE. — . « « »«

(2) 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 to protection as a derivative

work under this title, except with the express consent of

the copyright owner.

* Although not all parodies are derivative works (see n.8 and Addendum

B, infra), any parody that is “based on” a copyrighted work is, ipso

facto, a derivative work of that work. See 17 U.S.C. § 101 (defining

“derivative work” as “a work based upon one or more preexisting

works”); Stewart, 495 U.S. at 213 n.1 (same).

under a compulsory license, but without allowing the

music to be perverted, distorted, or travestied.*

Congress limited the compulsory license to recordings that do not

make “fundamental” alterations of the original music because of its

“strong concern for the original artist’s reputation,”* and

respect for the integrity of a musical composition

[that] evinces Congressional regard for the moral

rights of composers, the sole explicit recognition of

moral rights in the entire Copyright Act until passage

of the Visual Artists Rights Act of 1990.°

Amici do not contend that a derivative work that is ineligible

for a compulsory license because it perverts, distorts, travesties or

otherwise alters the fundamental character of a copyrighted song is

thereby, ipso facto, rendered ineligible for fair use as well. Amici do

suggest that the provisions and purposes of § 115 are very important

in fair use analysis of song or musical recordings and, as an

expression of congressional policy, should be considered a significant

factor disfavoring fair use in cases where the fundamental character

of a work has been altered, distorted, perverted or tarnished.

First, § 115 embodies into law a legislative judgment that

composers (and their heirs or assignees) have legitimate interests in

* H.R. Rep. No. 94-1476, 94th Cong., 2d Sess. at 109 (1976) (emphasis

added); S. Rep. No. 94-473, 94th Cong., Ist Sess. at 89 (1975).

Congress imposed a similar limitation in the “Guidelines for Educational

Uses of Music” which the House Judiciary Committee endorsed and

inserted into the report accompanying the bill enacted as the 1976

simplifying music purchased for classroom use is fair use “provided that

the fundamental character of the work is not distorted or the lyrics, if

any, altered”).

* | Paul Goldstein, Copyright, § 5.4.2, at 581 (1989).

®* 2M. and D. Nimmer, Nimmer on Copyright, § 8.04(F] (1992).

protecting the artistic integrity and creative control of their works.

Second, § 115 reflects congressional confidence that courts have the

competence to distinguish between song recordings that do and do not

change the fundamental character of the original, whether by

pervasion, distortion, travesty, or other means. Third, and most

importantly, any rule presuming that commercially distributed song

parodies are presumptive fair use, as suggested by petitioners and

their amici, would flout the command of § 115 and its underlying

policies. Such a rule, in the guise of fair use under § 107, would

allow unauthorized alterations of copyrighted material to be made,

performed and widely distributed without the permission of or

compensation to the copyrighted owner, when concurrently Congress

denied such unauthorized alterations any § 115 privilege of a

compulsory license, even on the proffer of the statutory fee (as here,

see JA 87).

It is therefore difficult to imagine, in the name of parody,

Satire or social commentary, extending any presumptive fair use rule

to changes of lyrics and music such as those made primarily for

commercial gain, when those changes alter, distort or degrade the

lyrics and the music of the original work and have, in any event, no

greater creativity or benefit to society than either the original or

licensed derivative works that obtain permission and pay their way.

(John Coltrane’s celebrated version of Rodgers and Hammerstein’s

“My Favorite Things” is a well-known example of a licensed

alteration of a copyrighted song. What policy is served by requiring

payment for his use of “My Favorite Things” but giving The 2 Live

Crew a free ride?)

Because the limitation of the § 115 compulsory ' -ense to

close arrangements was intended to require those who would alter

songs to the extent that The 2 Live Crew altered “Oh, Pretty

Woman” to obtain the copyright owner’s “express consent,” any

result that presumptively frees them from both the owner’s discretion

and payment of any required license fees violates the congressional

plan.

II. PARODIC, SATIRICAL OR HUMOROUS USES

ARE ELIGIBLE FOR FAIR USE ONLY UPON

TRADITIONAL FACT-INTENSIVE, CASE-BY-CASE

ANALYSIS, NOT ON A CATEGORICAL BASIS

A. Case-By-Case Consideration, Required For Fair

Use Determinations Generally, Is Mandated By

The Variety Of and Differences Among Works

Considered to be Parodies

It is well settled that fair use cannot be determined other than

on a case-by-case, fact-intensive basis, and is not susceptible to broad,

outcome-determinative generalization. Despite their concentrated

attention, able judges since Justice Story, leading commentators, and

even Congress itself have been unable to devise any mechanical test

or standard that can be applied without focused concentration on and

weighing of a variety of relevant factors grounded in the concrete

particulars of any particular case. This Court’s opinions in Harper

& Row and Sony repeatedly stressed that Congress insisted upon the

essential requirement of case-by-case equitable analysis.’

Concerning the boundaries of “parody” as it is discussed in

demonstrated, there is no agreement among the courts or

commentators. Proper usage, however, limits a parody to a work that

ridicules the work which it mimics.* More importantly, for present

’ See Harper & Row, 471 U.S. at 549, 561, and Sony, 464 U.S. at 448

& n. 31. See also Wendy J. Gordon, Fair Use as Market Failure: A

Structural and Economic Analysis of the Betamax Case and its

Predecessors, 82 Col. L. Rev. 1600, 1601-03 (1982).

* A “parody,” according to the Oxford English Dictionsry (1933,

reprinted 1978) (emphasis added), is

1. A composition in prose or verse in which the characteristic

turn of thought and phrase of an author or class of authors

are imitated in such a way as to make them appear

(continued. ..)

purposes, the huge variety of works that petitioners and their

supporters consider to be “parodies” and for which they seek

expanded and presumptive protection differ among themselves |

according to a panoply of factors that are relevant to fair use analysis.

Those factors lie along at least four separate axes:

¢ What is the extent of appropriation? Many song “parodies,”

including a great many cited by petitioners and their amici,

take no copyrightable expression, mimicking only “style” at

a level of generality well beyond that to which copyright ex-

*(...continued)

ridiculous, especially by applying them to ludicrously

inappropriate subjects; an imitation of a work more or less

closely modeled on the original, but so turned so as to

produce a ridiculous effect... .

2. transf. and fig. A poor or feeble imitation, a travesty.

See also The American Heritage Dictionary, Second College Edition

(1991); Webster's Third New International Dictionary (1976). A

parody, whatever its form, need not involve any copying, taking or

close paraphrasing of the original work, but it must at a minimum make

ridiculous what it is modelled on, not some other person or institution.

Fishes v. Dees, 794 F.2d 432, 436 (9th Cir. 1986); Rogers v. Koons,

960 F.2d 301, 310 (2d Cir.), cert. denied, 113 S.Ct. 365 (1992); MCA,

Inc. v. Wilson, 677 F.2d 180, 185 (2d Cir. 1981). Commentators have

made the same distinction, e.g., Wendy J. Gordon, A Property Right in

Self-Expression: Equality and Individualism in the Natural Law of

Intellectual Property, 102 Yale L.J. 1533, 1601-02 (1993)

(distinguishing and finding important differences between uses where

work mimicked “is itself the object of the parody” from uses referred

to as satire that use the original work as vehicles to ridicule public

figures or other aspects of society or politics). The works cited as

parodies by many of the amici — including most of the songs of Mark

Russell and the Capitol Steps, for example — are not “parodies” at all

under correct usage (although they may or may not be fair use, which

is quite a different question). In any event, this case does not present

any fair use issue concerning such political satires.

tends and therefore raising no fair use issue;’ some parodies

take copyrightable expression but no more than necessary to

“conjure up” a parodied original;"® some take more (and

some far more) than that.

¢ How “commerciai” is the planned distribution? Some

“parodies” are created and distributed pursuant to methodical

commercial plans to exploit the mass market for recorded

popular music (The 2 Live Crew’s album containing “Pretty

Woman” sold 248,000 copies by August 1990); others for

small cabaret or private performances (the Capitol Steps’

“I'm Just Wild About Harry”, or “Scalia,” which was

composed and sung to the melody of Bernstein’s Maria by

reporters at a recent Gridiron Club dinner in Washington,

D.C.").

e Is there a parody or satire at all, and if so, how creative and

productive is it — where does the work fall on a line from

comment or criticism or political satire, on the one hand, to

simple free-riding on a recognizable melody, perhaps with the

substitution of dirty or offensive lyrics, on the other? Courts

are able to determine relevant differences between, on the one

hand, The Capitol Steps’ “Why Not Take Al and Me,” to the

tune of “All of Me,” or Tom Stoppard’s Rosencrantz &

Beerbohm’s parody of Henry James is a classic example. See also,

e.g., some of Peter Schickele’s works, which mimic the style but not

original content of works by Bach and others. See generally Addendum

B infra, identifying many examples of parodies mentioned in the briefs

of petitioners and their amici that do not appropriate copyrightable

expression.

See, e.g., Elsmere Music, Inc. v. National Broadcasting Co., 482 F.

Supp. 741 (S.D.N.Y.), aff'd, 623 F.2d 252 (2d Cir. 1980); Fisher v.

Dees, 794 F.2d 432.

See David Broder, What A New Justice Needs: Intellect Seasoned With

Street Smarts, Chi. Trib., April 1, 1993 at N 23.

ae --

Guildenstern Are Dead, and, on the other hand, “The

Cunnilingus Champion of Company C,”” or a singing

telegram franchiser’s travesty of Superman and Wonder

Woman featuring “Super Stud” and “Wonder Wench.”"

¢ Who or what is the target? Some works aim at a particular

work or author (e.g., Beerbohm’s famous parody of Henry

James), others aim at genres (Mel Brooks’ Blazing Saddles),

while satire usually ridicules or lampoons exclusively, or

largely, some third party or social institution. There is no

reason to suspect broad “market failure” in licenses for

satires.'* Amici have licensed their songs for satires. See

MCA v. Wilson, 677 F.2d 180.

D.C. Comics, Inc. v. Unlimited Monkey Bus., Inc., 598 F. Supp. 110

(N.D. Ga. 1984).

Summarizing the extensive case law distinguishing between parodies

(works that purport to ridicule the works they mimic) and satires,

Professor Goldstein notes that satires are entitled to little fair use

consideration:

One reason is that the copyright owner who is not willing to

license a parody of his work may be more than willing, at a

reasonable price, to license use of his work as a vehicle for

social comment. Since negotiations will not inevitably be

fruitless, the satirist should be required to go to the bargaining

table with the copyright owner . . . even if the copyright owner

refuses to license the proposed satirical use, no good reason

exists for the satirist to get a free ride on the plaintiff's work.

There will rarely be a shortage of other works . . . that, with

some ingenuity, can be made to serve as equally effective

vehicles for the intended satire. The importance of this last

point is underscored by the rule, applied in fair use cases

generally, that, for the fair use defense to apply, the

defendant's work must by its nature require defendant to use

plaintiff's work.

Il Paul Goldstein, Copyright §10.2.1, pp. 211-12 (1989) (footnotes

omitted).

Addendum A. The generalized assertion that licenses are not

available for parodies is also incorrect. Amici have granted

licenses for parodies (see Addendum A), and Weird Al

Yankovic’s parodies, which sell in the millions of copies, are

licensed as well (see JA 325 and Brief of Amici Curiae

Capitol Steps Production, Inc. et al., at 16a).

Because the proper identification and weighing of all these

factors on the facts of any case is plainly relevant to a fair use

determination, identification of a work by its creator as a “parody,”

or even judicial characterization of a work as a genuine parody,

cannot conceivably be dispositive or weigh presumptively in favor of

fair use.

The suggestion that it is not for courts to assess these factors

in the case of works claimed to be parody or satire is meritless. The

putative infringer who defends by asserting fair use is necessarily

asking the court to make that determination (to the extent that whether

a work is a parody is relevant at all), just as those asserting fair use

often require courts to determine whether a work is “criticism” or

“comment” and to assess its “character.” 17 U.S.C. § 107. Other

provisions of the Copyright Act require courts to make comparably

difficult judgments. See, e.g., 17 U.S.C. § 106A (requiring courts

to assess, inter alia, whether a defendant has or is about to make

“any intentional distortion, mutilation, or other modification” of a

work, and whether a work has “recognized stature”); 17 U.S.C.

§ 115 (requiring courts to assess whether a recording has changed the

“fundamental character” of the recorded work).

It is unavoidable that in determining whether there is

compelling equitable justification for the fair use exception in a

particular case, the court must assess the nature of the use (including

whether a particular work mocks or ridicules the work it copies) and

its purpose (e.g., to communicate political satire, or merely to use a

familiar tune as the vehicle to attract attention with the familiar or for

the coarse and vulgar, as in MCA v. Wilson). The putative infringer

cannot, at the same time, ask a court for a ruling that the work is fair

use and then complain that the court may not make a determination

of the purpose and character of the work.

B. Parodies Are Not Entitled to Generic Special

Treatment Denied to Other Categories of Speech ~

Eligible to be Fair Uses

There is no warrant for making parodies presumptively fair

Although § 107 designates a number of categories of purposes

or uses as candidates for fair use, including “criticism, comment,

news reporting, teaching ... , scholarship, or research,”"* those

categories are only eligible for the fair use “defense,” and are not

presumptively entitled to it. Any judicial determination concerning

the fair use issue requires the full analysis that § 107 commands.

Congress insisted, as this Court held in Harper & Row, that the § 107

categories were

not intended . . . to single out any particular use as

presumptively a “fair” use.... [and] resisted

pressures from special interest groups to create

presumptive categories of fair use, but structured the

provision as ai) affirmative defense requiring a case-

by-case analysis.

Harper & Row, 471 U.S. at 561.

The principal basis advanced by petitioners and their amici for

holding parodies to be presumptively fair use — that parodies are

“criticism” and “comment” specifically mentioned in § 107,

categories of speech which are particularly valuable — cannot be

squared with Harper & Row or with the text of § 107. There is no

basis for concluding that parody is more important than, for example,

'S Those categories are not the only candidates for fair use; the list in the

first sentence of § 107 is non-exclusive. See Harper & Row, 471 U.S.

at 561 (citing S. Rep. No. 94-473 at 61).

the news reporting that this Court held in Harper & Row was not

presumptively entitled (and, on the facts of that case, not entitled at

all) to fair use.

Nor is their any basis for concluding that the broad range of

works that could arguably be termed “parodies” are in fact comment

or criticism. Some works meeting the dictionary definition of parody

— that is, works that take aim at the work copied — may be. Some

satires (using the melody of one work to poke fun of some unrelated

person or institution) may use the work copied for comment or

criticism. But many humorous settings of new words to old melodies

are neither comment nor criticism — for example, the “Cunnilingus

Champion of Company C” is not. As Professor Gordon observes at

pp. 1601-02 of her recent article (supra, p. 11, n.8),

when a comedian writes a ditty like “When Sonny

Sniffs Glue” (parodying “When Sunny Gets Blue”),

or Mad Magazine publishes a lyric entitled “Louella

Schwartz Describes Her Malady” (parodying “A

Pretty Girl is Like a Melody), it seems as if any song

might do as a vehicle. The parodist’s purpose is

simply to take some familiar song, any song, and

create humor by showing the unexpected changes that

can be rung upon its meter and rhyme scheme. .. .

Nor could the parodist easily make a claim based on

equality with first creators.

Nor is there any need to copy a substantial amount of

expression in order to create a parody. For example, the musical

Grease parodies the genre of 1950’s rock-and-roll without copying

any particular work. The examples of parodies larded through the

briefs of the amici supporting petitioners make clear that denying the

opportunity to take substantial amounts of prior copyrighted material

would not inhibit genuinely creative new work ridiculing prior

creative work or noted persons or institutions. The creativity

involved in most of the examples of parody used by petitioners’ amici

did not take any original expression at all, or did so years after any

ne en Ao:

we ee

premise of protecting works for “limited times” is that some uses,

while worthwhile, can wait until copyright has expired.

The other basis advanced by petitioners and their amici for

treating parodies as presumptively fair uses, equally without merit, is

alleged market failure. This theory rests on the alleged “facts”

(which are not of record and rest on nothing more than ipse dixit) that

obtaining permission at market prices is impracticable or simply

unavailable. But extensive licensing markets and organized systems

for obtaining permission or authorization, in which amici and others

actively participate, preclude any notion that obtaining licenses is

generally impracticable. Seeking and obtaining permission (assuming

it would be granted) is always practicable for mass-market recorded

“parodies,” given the lead time that goes into mass-marketed

recordings. (By contrast, the need for spontaneity and speed in some

cases, as with Mark Russell’s evening performance of a song he

wrote in the morning in response to late-breaking events, may well be

a factor favoring fair use. See, e.g., H.R. Rep. No. 94-1476 at 69,

recognizing that spontaneity and the need for capturing a moment is

a factor that may favor fair use). Furthermore, permission often is

available. Amici themselves are frequently asked for and grant

permission for parodies (when they themselves are the targets) and for

satirical uses as well (targeting others). For example, amici (and

other composers and songwriters as well), have licensed their works

to be commercially parodied in the cabaret Forbidden Broadway, as

shown in Addendum A below.

Here, as in Harper & Row, 471 U.S. at 557 n. 6, “it bears

noting that Congress in the Copyright Act recognized a public interest

warranting specific exemptions in a number of areas,” but failed to

craft any such exemption for commercial parodies, or for parodies

generally.

Ill. STATUTORY FOUR FACTOR ANALYSIS AND

RELEVANT EQUITABLE CONSIDERATIONS COMPEL

REJECTION OF ANY PRESUMPTION FAVORING

PARODIES OR SATIRES AS A FAIR USE

Because petitioners’ fair use defense (and those of other

parodists or t>kers for satirical or humorous uses) depends on the

usual application of the four statutory factors and other equitable

considerations, principles relating to those matters are worthy of

further discussion.

A. First Factor — Purpose and Character of the Use

1. A Profit-Motivated Commercial Use For Entertainment

Purposes Disfavors Fair Use. The authorities are unanimous that a

commercial use for a profit-motivated purpose is presumptively unfair

in first factor analysis (the “Sony presumption”). Harper & Row, 471

U.S. at 562; Sony, 464 U.S. at 451; Stewart, 495 U.S. at 237. This

principle simply executes the first factor statutory command that in

each case the court must consider the “purpose and character of the

use, including whether such use is of a commercial character or is for

non-profit educational purposes.”"*

Observing that many humorous uses in our society, and most

that attempt to reach the mass markets, are commercial, petitioners

and their amici attack the Sony presumption as overbroad and unfairly

stacking the deck against parodies. But as Harper & Row teaches, the

Sony presumption simply recognizes that it is presumptively

reasonable and fair to expect commercial users, who set out to

generate revenues and profits, to pay for their intellectual property

‘© The ordinary meaning of the word “commercial” is an activity relating

to commerce or trade, looking toward financial profit, or having profit

as the primary aim. Webster's Third New International Dictionary

(1976); Oxford English Dictionary, Vol. Il (1978); The American

Heritage Dictionary, Second College Edition (1991).

inputs if the copyright owner authorizes the use, just as they pay for

other inputs.

Lower courts have on occasion found the Sony presumption

outweighed or rebutted where a very limited use was heavily trans-

formative (so that defendants were profiting largely from their own

creativity, rather than the borrowed work), and the character of the

use, albeit commercial, was for “broader public purposes.” See Twin

Peaks Productions, Inc. v. Publications Int'l, Lid., No. 92-7933,

1993 U.S. App. LEXIS 13454 at *19 (2d Cir. June 7, 1993) (citing

such cases involving scholarly biographies and works of non-fiction).

Whatever reasons there might be for finding the Sony

presumption outweighed when the infringing work serves salutary

public purposes (and even in Harper & Row the public importance of

the news reporting use was not considered to be a factor heavily

favoring fair use), certainly those reasons are inapplicable to profit-

motivated works whose primary purpose is entertainment. If the Sony

presumption disfavoring a commercial use as a fair use is not

applicable to mass-marketed works of entertainme. sold in the same

record stores as the copyright owner’s works, such as The 2 Live

Crew’s widely distributed As Clean As They Wanna Be, then that

presumption, as petitioners and their amici wrongly urge, would be

a dead letter."’

2. First Amendment Considerations Do Not Categorically

Favor Fair Use for Parodies, Satires or Humorous Uses. Properly

understood, copyright protection does not interfere with Free Speech

interests in comment and criticism, but rather serves them, by

Notwithstanding petitioners’ after-the-fact defense of parody, it should

be decisive for first factor purposes disfavoring fair use that “Pretty

Woman” was included on an album that was marketed as straight

entertainment, that it was not marketed as a parodic, satiric or humorous

work (such as licensed recordings by Mel Brooks or Weird Al

Yankovic, for example), and that authorship was attributed to the writers

of the original “Oh, Pretty Woman.”

fostering the creation and wide dissemination of music and other

works. Feist Pub., Inc. v. Rural Tel. Serv. Co., 111 S. Ct. 1282

(1991); Harper & Row, 471 U.S. at 557-58; Schnapper v. Foley,

667 F.2d at 114; In re Capital Cities/ABC, Inc., 918 F.2d 140, 143-

44 (llth Cir. 1990) (“the First Amendment is not a license to

trammel on legally recognized rights in intellectual property”)

(citations omitted). See also Il Goldstein, Copyright, § 10.3; 1

Nimmer on Copyright § 1.10.

The demand by petitioners and their amici that there must be

a parody or satirical use exception to the Sony presumption is

indistinguishable from a comparable request in Harper & Row that the

Court firmly and wisely rejected, stating:

In view of the First Amendment protections already

embodied in the Copyright Act’s distinction between

copyrightable expression and uncopyrightable facts

and ideas, and the latitude for scholarship and

comment traditionally afforded by fair use, we see no

warrant for expanding the doctrine of fair use to

create what amounts to a public figure exception to

case is or is not [a] fair [use] must be judged

according to the traditional equities of fair use.

471 U.S. at 560. That same reasoning and those same principles are

entirely applicable here.

3. The Extent of Any Productive and Transformative Use

is Part of First Factor Analysis. Whether the new work serves a

transformative purpose, i.e., uses and transforms a limited portion of

a prior copyrighted work in the course of creating a new work for a

socially desirable purpose, such as literary criticism, is part of first

factor analysis. Thus, where the parody, satire or humorous use does

make a meaningful comment or criticism of some person, institution,

or prior work that would be understood as such by its audience, then

that element (although not the entire first factor) would weigh in the

ee eee ee

user’s favor. By contrast, a parody or satirical use that, for example,

lacks or is not distributed or performed as having political or

meaningful social content is not entitled to any special first factor

credit.

Where the purpose and character of the use is simply to

exploit interest in the prior copyrighted work or to taint or tarnish it

— not by criticizing or commenting, but merely as a vehicle for

entertainment or to satisfy baser tastes for coarseness or vulgarity, or

to substitute for the user’s own lack of creativity — there is a lack of

productive or transformative quality that courts need consider

affirmatively for first factor purposes. See MCA v. Wilson, 677 F.2d

180; D.C. Comics v. Unlimited Monkey Bus., 598 F. Supp. 110.

B. Second Factor — The Nature of the Copyrighted Work

The appropriation of any of respondent’s or amici ’s music or

lyrics, regardless of purpose, points against fair use. Music and

lyrics are quintessentially creative and therefore deserving of strong

C. Third Factor — The Amount and Substantiality of the

Portion Used

In Harper & Row, the Court held that the third factor favored

the copyright holder even though only very little of the work was

taken — 300 words from a book of hundreds of pages. The

reasoning was that the work taken was qualitatively substantial, the

“heart” of the copyrighted work. That same reasoning applies to the

case at bar, and would apply whenever a comparably central portion

of a song (or more) were taken by a commercial infringer for parody

or humorous satirical use — unless there is something special about

such works that would exempt them from the usual rule.

Although the course of the law’s development on that question

has not been smooth, one rule is settled, and correctly so: where

extensive expression is copied the third factor points against fair use,

and indeed fair use almost always will be unavailable."* The

number of persons and entities in this nation who would, if given a

chance, use the famous and recognizable melodies from such past

masters as Berlin, Bernstein, Gershwin, Kern, Rodgers, Loewe, and

Porter, is legion; were entire albums created with new lyrics to their

songs, millions of copies could well be sold. Similarly, the ability of

advertising agencies to create unlicensed humorous commercial

advertisements using amnici’s melodies, in ways that experts might be

found to opine were satirical or made the originals ridiculous, can

hardly be overestimated. Copyright preserves these economic and

artistic values for the copyright owners. (See Addendum A for

examples of advertisements and other derivative works licensed by

amici.)

Whether there is occasion for any special third factor credit

for cases of true parody — whether copyists are entitled to do more

than “conjure up” the original works — is a much-debated question

whose analysis, amici believe, has seemingly overlooked the extent

to which parody is possible without any actionable taking whatsoever.

See the parodies cited in Addendum B.

In any event, here, as elsewhere, fair use is a question of

degree in concrete factual circumstances. Certainly, the more taken,

the more fair use is disfavored in third factor analysis. Applying that

simple equitable insight, it is motable that the cases in which song

‘See Walt Disney Prods. v. Air Pirates, 581 F.2d 751, 756 (9th Cir.

1978), cert. denied, 439 U.S. 1132 (1979); Warner Bros. v. American

Broadcasting Cos., 654 F.2d 204 (2d Cir. 1981); MCA v. Wilson, 677

F.2d at 185. 3 Nimmer on Copyright (§ 13.05 [C], at 13-102.28(16))

approves the Second Circuit’s retreat in MCA from dicta previously

indicating virtually no limits to the degree of copying by a parody,

noting that that Circuit’s previous view, in Elsmere,

went too far, suggesting an open-ended standard whereby

wholesale appropriation of another’s work becomes possible

under the banner of fair use provided only that elements of

humor are added.

parodies or humorous uses have been found to be fair use have

generally involved very little appropriation of the original."

D. Fourth Factor — Harm to the Potential Market

For or Value of the Work

1. Users Have the Burden of Showing that Widespread

Uses Like Theirs Would Be Unlikely To Deprive Owners of

Potential Licensing Revenues. The fourth factor requires an

examination of the facts to determine “the effect of the use on the

potential market for or value of the copyrighted work,” an inquiry

that depends on logic, common sense and assessment of likely

economic effects. See Stewart, 495 U.S. at 238 (“The record

supports the Court of Appeals’ conclusion that re-release of the film

impinged on the ability to market new versions of the story.

Common sense would yield the same conclusion”). Contrary to the

view of the dissent below, of the district court, and of petitioners and

their amici, the inquiry is not limited to whether a use would “fulfill []

the demand for the original” in the form that that work was first

distributed (here, not limited to lost record sales of Roy Orbison’s

single “Oh, Pretty Woman”). Economic harm to be considered under

the fourth factor pertains to the effect on both the original and

derivative works and includes lost licensing income. /d.; Harper &

Row, 471 U.S. at 568; New Era Pub. Int'l ApS v. Carol Pub. Group,

904 F.2d 152, 159 (2d Cir.), cert. denied, 498 U.S. 921 (1990).

Moreover, relatively little need be shown by the copyright owner

Compare, e.g., Fisher v. Dees, 794 F.2d at 434 (song copied only six

bars of music, and no lyrics); Berlin v. E.C. Publications, Inc., 329

F.2d 541 (2d Cir.), cert. denied, 379 U.S. 822 (1964) (none of the

music was copied, and any copying of lyrics, if it existed at all, was

barely actionable); and Elsmere, 623 F.2d at 253 (copying of only four

notes of music, and the words “I Love”) with MCA v. Wilson, 677 F.2d

at 185 (“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”).

concerning harm; “[a]ctual present harm need not be shown” and it

is not “necessary to show with certainty that harm will result” from

the use. Sony, 464 U.S. at 451.

Sony formulated an additional important concept when it

declared that although it is necessary in the case of non-commercial

use to show “by a preponderance of the evidence that some

meaningful likelihood of future harm exists,” in the case of a

commercial unauthorized use, the likelihood of meaningful future

harm should be “presumed.” Sony, 464 U.S. at 451. This

presumption adverse to fair use in fourth factor analysis is interrelated

with the “commercial” use presumption disfavoring a fair use under

the first factor.” Both presumptions are based on the reasonable

assumption that if the copier is making a commercial use of a

copyrighted work, the copier would be willing to pay an economically

reasonable amount for that use, and therefore that failure to do so

would harm the copyright owner.

A related and critically important rule is that the relevant

harm is not simply the harm caused by the specific unauthorized use

at issue (here, The 2 Live Crew’s song), but also the harm, often

more important, that would flow from widespread conduct of that

kind (here, the unauthorized commercial use for mass-market

distribution of the melodies and basic lyrics of popular songs). See

Sony, 464 U.S. at 451; Harper & Row, 471 U.S. at 568; H.R. Rep.

No. 90-83, 90th Cong., Ist Sess. 35 (1967) (“Isolated instances of

minor infringements, when multiplied many times, become in the

aggregate a major inroad on copyright that must be prevented”); 3

Nimmer on Copyright § 13.0S5[A][4] at 13-102.26.

0 Id.; Association of Am. Med. Coll. v. Cuomo, 928 F.2d 519, 525 (2d

Cir.), cert. denied, 112 S.Ct. 184 (1991); Financial Info., Inc. v.

Moody's Investors Serv., Inc., 751 F.2d 501, 510 (2d Cir. 1984), cert.

denied, 484 U.S. 820 (1987); Narell v. Freeman, 872 F.2d 907, 914

(9th Cir. 1989).

As previously discussed, in view of the current widespread

dissemination of electronic playback equipment and mass-marketed

commercial musical recordings, sanctioning unauthorized copying to

the extent undertaken by The 2 Live Crew would predictably increase

— by sizeable, and likely huge amounts — the amount of

unconsented, substantial, commercial use of works previously created

by amici and other authors, and thereby deprive the copyright owners

of licensing revenues to the extent they choose, as they frequently do,

to authorize such uses. Indeed, such a decision would likely spawn

a cottage industry in which writers would add new, parodic, satiric

or “humorous” lyrics to copyrighted melodies of successful prior

musical works, as happened to “Oh, Pretty Woman” after the district

court’s judgment. JA 326-27. The multiplication of persons copying

amici’s works, released from the restraints of copyright and actively

profiting from the melodic and lyrical genius of those who labored

long and hard for highly uncertain rewards, is antithetical to the

constitutional and statutory scheme of copyright.

2. Tarnishment of the Work and Satiation of Its Potential

Audience Can Have a Serious Adverse Effect on the Copyright

Owner’s Ability to License Future Uses. The record below (JA

325) reflects what amici’s experience has shown, namely that demand

for future copies or derivative uses of the original work may also be

reduced in two further ways: first, by tarnishment through associating

the work with new and unwanted meanings (harming not only

economic values but also the creative control interest that copyright

protects); and second, by over-exposing a melody or song, tiring the

public’s desire to hear the song again. Both of these effects are

relevant fourth factor harms weighing against fair use.

a. Tarnishment. No one disputes that economic harm

caused by a critically adverse review of a copyrighted work is not

harm for fourth factor purposes, and on that principle the trial court

refused to consider tarnishment, viewing it as indistinguishable from

the effect of such a critical review. The court’s refusal was basic

error. Harm from criticism is different from harm flowing from a

commercially exploitative tarnishment of the original work that

degrades, vulgarizes or otherwise demeans that original work, and

thereby creates “a new meaning” for the song “in the minds of

listeners.” JA 325. Of. Young v. American Mini-Theatres, Inc, 427

U.S. 50 (1976) (distinguishing harm to audience caused by content of

films from reduced property values that result from nuisance in

neighborhood); J. Thomas McCarthy, McCarthy on Trademarks and

Unfair Competition, § 24.16, at 24.131-135 (3rd ed. 1992) (collecting

cases where trademarks were held diluted by tarnishment through use

in unwholesome, degrading or dissonant contexts). Harm from a

free-riding use of a popular melody also differs from the harm caused

by a critical review.

Any doubt that courts can meaningfully distinguish between

harm from criticism and harm from tarnishment or free-riding

exploitation should be dispelled by Congress’s recognition, in

enacting § 115, of the importance of empowering creators to avoid

alteration of the “fundamental character” of a work, including by

“distortion, travesty, and perversion.” See supra at 6-10.

Critical articles (even those that reproduce parts of a song or

other musical work) do not attempt to exploit or capitalize on the

popularity of the works they criticize. By contrast, works like those

at issue in MCA v. Wilson or in this case harm the value of the works

from which they are copied not by an appeal to the critical judgment

of listeners, but rather by creating such negative associations, through

distortion, perversion or travesty, that others who might otherwise

have enriched the creators — potential purchasers of the original

works or of licenses for derivative uses including advertisers and film

producers — are deterred from doing so. Had The 2 Live Crew

created and popularized a comparable version of Carly Simon's

“Anticipation,” for example, who could imagine that H.J. Heinz

would have proceeded to license that song as the centerpiece of its

advertising campaign? Would Revlon have purchased rights to

Rodgers and Hammerstein’s song “Gonna Wash That Man,” if that

song had become associated in the public mind with head lice?

Would Irving Berlin have had to stand by if “White Christmas” was

recorded and widely sold with lyrics referring to cocaine?

It is illogical and unreasonable to grant creators such as amici

the right, on the one hand, to carefully choose which theaters in

which to present their works and which artists shall perform them, all

from the artistic-economic judgment that only certain conditions will

maximize the value of the work, while at the same time prevent them

from stopping others from reshaping their works for commercial

distribution with coarseness, vulgarity, or other distortion. Nearly

every court to have squarely addressed this point has agreed.”'

b. Satiation. Satiation of the potential market by over-

exposure is another means by which parodies or other satirical or

humorous uses harm potential markets for copyrighted works. The

judgment of amici and many others is that the value of their

copyrights is maximized by carefully limited distribution. Such

musicals as West Side Story and My Fair Lady are licensed for first

class revivals only infrequently, and The Walt Disney Company has

achieved great success by maximizing demand through limiting

release of its classic cartoons to short periods every few years. Were

amici’s songs subject under the fair use doctrine to unlimited parody,

satire and humorous use in the mass markets of radio, television,

film, videos and sound recordings, two forms of economic harm

would quickly follow: extensive use without compensation to the

reduction of demand. JA 325. Because the statutory license

substantially impairs amici’s control over the dissemination of their

highly successful works in original form, preserving the residual

control over alteration of those works that Congress did provide for

in §§ 106 and 115 is all the more important in order to protect the

value of the works and their potential markets.

*! See, e.g., MCA v. Wilson, 677 F.2d at 185; New Line Cinema Corp. v.

Bertlesman Music Group, Inc., 693 F. Supp. 1517, 1529 (S.D.N.Y.

1988) (citing additional cases).

E. Summing Up the Factors And Deciding the Case

Based on the principles that we have discussed, the case

should be decided based on traditional fair use analysis, and under all

the relevant facts and circumstances, petitioners should not be

accorded the shelter of fair use. Amici place particular weight on

petitioners’ commercially exploitative use of a creative work for a

profitable entertainment purpose, and the minimal nature (if any) of

comment or criticism in the venture. This is reflected in the song’s

inclusion on an album marketed as straight entertainment; the taking

of the central musical elements of “Oh, Pretty Woman,” and the

repetition of its first verse so as to trade on its popularity and

familiarity; the attribution of authorship of the altered version to the

writers of the original song, to trade on their fame; the harm to the

value of and markets for the song caused by the sale of over 248,000

copies of the derivative use of their song; the potential harm to the

original from tarnishment and over-exposure; the record evidence

showing the likely increase in unlicensed uses if petitioners’ fair use

claim were upheld; the existence of active licensing of “Oh, Pretty

Woman”; the absence of any political speech or criticism in

petitioners’ use; and the availability of other means for petitioners to

criticize those aspects of culture and society they allegedly targeted.

The judgment below should therefore be affirmed.

A use such as The 2 Live Crew’s in this case, which used a

substantial portion of a copyrighted song for commercial purposes

through exploitation of the mass market, differs substantially from

some of the uses engaged in by petitioners’ amici, such as The

Capitol Steps and Mark Russell. A satirical re-write of a tune by

Bernstein or Berlin performed at the Gridiron Dinner, or at the

Shoreham Hotel in Washington, D.C., will not satiate public demand

as might use on The Tonight Show with Jay Leno. Courts may and

should take account of such relevant differences, just as amici do.

CONCLUSION

The art of parody or satire is not in jeopardy if the judgment

below is affirmed, as it should be based on the facts of this case

applying traditional fair use principles expressed in the statute and in

prior decisions of this Court. At most, if that judgment is not

affirmed, there is no basis for determining as a matter of law that

petitioners’ use is a fair use, and in the procedural posture of this case

(where only the defendants moved for summary judgment), the case

should be remanded to the trial court for plenary development and

adjudication of all of the pertinent facts and relevant fair use

considerations in accordance with the principles applicable to parody

laid down by this Court in this case.

Respectfully submitted,

STEPHEN RACKOW KAYE,

Counsel of Record

CHARLES S. SIMS

JON A. BAUMGARTEN

PAUL H. EPSTEIN

PROSKAUER ROSE GOETZ &

MENDELSOHN

1585 Broadway

New York, New York 10036

(212) 969-3000

Attorneys for Amici Curiae

Of Counsel:

Christopher T. Meyer

Susan L. Hochman

June 28, 1993

ADDENDUM A

A-l

ADDENDUM A

EXAMPLES OF LICENSING BY

AMICI CURIAE

A. Parodies and Satires Performed in Cabarets

Alan Jay Lerner and Frederick Loewe’s song “I

Remember It Well” was licensed for use with altered

lyrics by “The News In Review,” a group which

performs musical political satires.

Two Cole Porter songs were licensed for use with

altered lyrics by “The News In Review.”

The producers of Forbidden Broadway, a long-running,

frequently updated musical spoof on Broadway

productions, have purchased licenses to use numerous

songs composed by Richard Rodgers and Oscar

Hammerstein, Irving Berlin, Leonard Bernstein, Alan

Jay Lerner and Frederick Loewe, and numerous others,

and to create and perform derivative works with new

humorous lyrics, including, for example:

° “Madonna’s Brain,” sung to the tune of Lerner

and Loewe’s “The Rain in Spain.”

° “I’ve Grown Accustomed to This Show,” sung to

the tune of Lerner and Loewe’s “I’ve Grown

Accustomed to Her Face.”

° “Just You Wait, Julie Andrews,” sung to the tune

of Lerner and Loewe’s “Just You Wait, Henry

Higgins.”

e “Chita/Rita,” sung to the tune of Bernstein’s

“America.”

° “A Few of My Souvenir Things,” sung to the

tune of Rodgers and Hammerstein's “My

Favorite Things.”

A-2

° “Climb Every Rainbow,” sung to the tune of

Rodgers and Hammerstein’s “Climb Every

Mountain.”

° "The Farmer and the Cowman,” sung to the tune

of Rodgers and Hammerstein’s “Farmer and the

Cowman.”

° “I’m an Asian, Too,” sung to the tune of Irving

Berlin’s “I’m an Indian, Too.”

° Irving Berlin’s song “Anything You Can Do,”

sung by the helicopter from the musical “Miss

Saigon” and the chandelier from the musical

“Phantom of the Opera.” The lyrics were

changed from “Anything you can do, I can do

better” to “Anywhere you can fly, I can fly

higher.”

° John Kander and Fred Ebb’s song “New York,

New York” was licensed to be performed with

altered lyrics.

Derivative Works Distributed as Rock, Rap and Jazz

Recordings

Various Cole Porter songs, many of them with altered

arrangements and some with altered lyrics, were

licensed to be performed by rock and rap singers on an

album and videotape entitled “Red, Hot + Blue.”

Rodgers and Hammerstein’s “My Favorite Things” was

licensed for use by John Coltrane for his jazz version.

Derivative Works for Television

Children’s Television Workshop purchased a license to

record Cole Porter’s songs “I Get A Kick Out of You”

and “Let’s Do It” with substituted lyrics for “Sesame

Street.”

+ ne *

A-3

Children’s Television Workshop purchased a license to

record the songs “I Remember It Well” and “Wouldn’t

It Be Loverly”, by Alan Jay Lerner and Frederick

Loewe, with substituted lyrics for “Sesame Street.”

“Soliloquy” by Rodgers and Hammerstein is licensed,

without cost, to be performed annually with special

lyrics in the Jerry Lewis Telethon for the Muscular

Dystrophy Association.

Cole Porter’s “You Do Something for Me” was licensed

for use with substituted lyrics in the British television

series “Jeeves and Wooster.”

D. Advertising

Bristol-Myers Company purchased a license to use the

song “I’m Gonna Wash That Man Right Outta My

Hair” by Rodgers and Hammerstein in a television

advertisement, with the word “man” replaced by the

word “gray.” The licensing fee was $72,500 for the

first year, and $80,000 per year for the next two years,

with additional sums required for use of the song in any

radio advertising.

General Electric company purchased a license to use

Alan Menken’s song “Git It (Feed Me)” from the show

“Little Shop of Horrors” in a battery advertisement.

The same song has also been licensed for use in an

advertisement for Pizza Hut.

United Airlines purchased a license to use George

Gershwin’s “Rhapsody in Blue” in a television

advertisement.

Dove Chocolate purchased a license to use George

Gershwin’s “Concerto in F” in its advertisements.

George Gershwin’s song “Somebody Loves Me” was

licensed for use in an advertisement for Post Raisin

Bran.

A-4

George Gershwin’s “An American in Paris” was

licensed for use in an ice cream advertisement in Italy.

The songs “But Not for Me” and “Embraceable You”

by George and Ira Gershwin were licensed for use in a

Peugot Car advertisement in France.

Ira and George Gershwin’s song “’Swonderful” was

licensed for use in a Crest toothpaste advertisement.

“Summertime” by DuBose Heyward and George and Ira

Gershwin was licensed for use in a Dannon yogurt

television advertisement in France.

Cole Porter’s “I’ve Got You Under My Skin” was

licensed for use in a Vanish toilet bowl cleaner

commercial, with the lyrics “I’ve got you under my

rim”. The song was also licensed for use in

advertisements for Aramis Men Fragrances and Cheer

laundry detergent (with no lyric changes permitted).

Cole Porter’s “You'd be So Nice to Come Home to”

was licensed for use in an advertisement for Hilton

Hotels.

Cole Porter’s song “Night and Day” was licensed for

use in advertisements for Audi and for Air France.

A-5

Derivative Works for Film

e Leonard Bernstein’s “Big Stuff” was licensed for use in

the recent film “Malcom X.”

° Woody Allen licensed and used numerous Gershwin

tunes, including “Our Love is Here To Stay” and

“Rhapsody in Blue,” in his film “Manhattan.”

° George and Ira Gershwin’s songs "But Not for Me” and

“Let’s Call the Whole Thing Off” were licensed for use

in the film “When Harry Met Sally”

Performances

° Songs and other musical works of amici have been

licensed for performance world-wide through ASCAP or

BMI.

Other

° The state of Oklahoma is licensed, without cost, to use

Rodgers and Hammerstein’s “Oklahoma” as its state

song and to use it in advertisements promoting tourism.

° The United States Postal Service is licensed, without

cost, to print stamps celebrating the musical

“Oklahoma.”

ADDENDUM B

B-1

ADDENDUM B

PARODIES IDENTIFIED BY PETITIONERS AND

THEIR AMICI THAT WOULD NOT HAVE NEEDED

TO RELY ON A FAIR USE DEFENSE

Works That Did Not Appropriate Copyrightable

Expression

° Henry James’ style parodied by Beerbohm, A Mote in

the Distance (1926)

° Style of Playboy Magazine parodied by Ramos

° 18th Century Opera styles parodied by Mozart, A

Musical Joke (1787)

° Shostakovich, Symphony No. 7 (1941) parodied by

Bartok, Concerto for Orchestra (Intermezzo) (1943)

e - Wagner, Tristan and Isolde (1856) parodied by

Debussy, The Golliwog’s Cakewalk (1908)

° McLaughlin Group (TV show) parodied by Saturday

Night Live skit

° Soap Operas parodied by Tootsie (1982 film) and Soap

(TV series)

° Plays of Aeschylus and Euripides (Sth c. B.C.) parodied

by The Frogs and The Birds (Aristophanes - 405 and

414 B.C.)

° Canon Camera TV ad parodied by Saturday Night Live

TV ad

° MTV Channel parodied by MTV: Give Me Back My

Life (Comedy Central feature)

° Sports Illustrated (swimsuit issue) parodied by Sports

Titillated (MAD Magazine)

B-2

State Dept. Newsletter parodied by Anonymous, State

Dept. Employees

Works Whose Copyright Protection (Assuming the

Application of Protection Afforded by the Copyright Act

of 1976) Would Have Expired

The Lord’s Prayer parodied by Anonymous, Concerning

Pay for the Army (1780)

Carroll, Alice in Wonderland (1838) parodied by

Stackpole, Rosie in Squanderland (1936)

Titian, Venus (1538) parodied by Manet, Olympia

(1863)

Manet, Olympia (1863) parodied by Rivers, I Like

Olympia in Blackface (1970)

Manet, Olympia (1863) parodied by Ramos, Manet’s

Olympia (1974)

DaVinci, Mona Lisa (1506) parodied by DuChamp,

(1915)

DaVinci, Mona Lisa (1506) parodied by Warhol, Thirty

Are Better Than One (1963)

Tchaikovsky, 1812 Overture (1880) parodied by P.D.Q.

Bach (Schickele), 1712 Overture

The Odyssey (Homer - ca. 700 B.C.) Ulysses (Joyce -

1922)

Don Quixote (Cervantes - ca. 1610) parodied by

Guernica (Picasso - 1937)

The Iliad (Homer - ca. 700 B.C.) parodied by Troilus

and Cressida (Shakespeare - ca. 1609)

Hamlet (Shakespeare - ca. 1600) parodied by

Rosencrantz and Guildenstern Are Dead (Stoppard -

1967)

B-3

The Importance of Being Earnest (Wilde - 1899)

parodied by Travesties (Stoppard - 1975)

The Last Supper (DaVinci painting - ca. 1497) parodied

by M*A*S*H (1970 film)

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.