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

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IN THE ile ne

Supreme Court of the Uniteb-States

OCTOBER TERM, 1992

LUTHER R. CAMPBELL, a k a LUKE SKYYWALKER,

CHRISTOPHER WONGWON, a kK a FRESH Kip ICE,

Mark Ross, ak a BROTHER MARQUIS,

Davip Hoss, a k a Mr. MIxx;

professionally known as THE 2 Live CREw;

LUKE SKYYWALKER RECORDS,

. Petitioners,

ACUFF-RosE Music, INC..

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

BRIEF OF AMICI CURIAE

HOME BOX OFFICE, COMEDY CENTRAL,

FOX INC., MAD MAGAZINE, and

NATIONAL BROADCASTING COMPANY, INC.,

IN SUPPORT OF PETITIONERS

Of Counsel: DANIEL M. WAGGONER *

P. CAMERON DEVORE

GREGORY J. KOPTA

DAVIS WRIGHT TREMAINE

2600 Century Square

1501 Fourth Avenue

JOHN S. REDPATH, JR.

STEPHEN SAPIENZA

Home Box Office

1100 Avenue of the Americas

New York, NY 10036

ew York, NY 10 Seattle, WA 92101-1688

Attorneys for Home Box Office (206) 622-3150

oun ici Curi

(Additional Of Counsel Counsel for Amici Curiae

listed inside cover ) © Counsel of Raserd

WILSON - EPES PRINTING Co.. INC. - 789-0096 - WASHINGTON. D.C. 20001

STEVEN PAUL MARK

Comedy Central

1775 Broadway

New York, NY 10019

Attorney for Comedy Central

GEORGE VRADENBURG

BONNIE BOGIN

Fox Inc.

10201 West Pico Blvd.

Building 12, Room 116

Los Angeles, CA 90064

Attorneys for Fox Inc.

LILLIAN LASERSON

E.C. Publications, Inc.

485 Madison Avenue

New York, NY 10022

Attorney for Mad Magazine

ANNE H. EGERTON

National Broadcasting

Company, Inc.

3000 West Alameda Avenue,

Room 124

Burbank, CA 91523

RICHARD COTTON

MICHELL SALEM

National Broadcasting

Company, Inc.

30 Rockefeller Plaza

New York, NY 10112

Attorneys for National

Broadcasting Company, Inc.

TABLE OF CONTENTS

Page

STATEMENT OF INTEREST .........000000000 ee. 1

SUMMARY OF ARGUMENT ..............................-.......... 4

ee sseneemessenesenens 5

I. THE NATURE OF PARODY OFTEN RE-

QUIRES USE OF MATERIAL FROM AN EX-

ISTING COPYRIGHTED WORK |... 5

Il. PARODY IS A FORM OF EXPRESSION

THAT IS ENTITLED TO FIRST AMEND-

I IIIIED cxntsctrctcsencnansepieneemnenssemenemnesen 10

Ill. THE FAIR USE DOCTRINE AS CURRENTLY

INTERPRETED PROVIDES UNCERTAIN

PROTECTION FOR PARODY ...........0......... 13

A. Limiting Fair Use to Noncommercial Uses

Precludes Protection for Much Legitimate

= ESERIES 14

B. The Fictional or Factual Nature of the Copy-

righted Work Should Not Affect Fair Use

Protection for Parody ....... ssleemmenienennimeatmenen 16

C. A Parodist Should Not Be Limited to Copy-

ing Only the Essential Minimum Necessary

to “Conjure Up” the Existing Work _.......... 17

D. A Parody’s Adverse Effect on the Value of

a Copyrighted Work Is the Natural Product

of Comedy and Criticism —..0000000 kn... 19

IV. FAIR USE PROTECTION FOR PARODY

REQUIRES CONSIDERATION OF FIRST

AMENDMENT CONCERNS ................................ 21

A. Protection for Parody Must Ensure the

Preservation of First Amendment Values

Without Infringing the Interests of Copy-

cece 22

ii iii

TABLE OF CONTENTS—Continued TABLE OF AUTHORITIES

Page

B. The Statutory Fair Use Factors Are Not CASES Page

Exclusive But Should Assist in Measuring Berlin v. E.C. Publications, Inc., 329 F.2d 541 (2d

the Legitimacy of a Claimed Parody ............ 25 Cir.), vert. denied, 379 U.S. 822 (1964) _... 7,9, 12, 15,

21, 22

A. Funpess ane Chaseetes Ge Wee. - Cliffs Notes v. Bantam Doubleday Dell Publishing

2. Nature of the Copyrighted Work ........ 26 Group, Inc., 886 F.2d 490 (2d Cir. 1989) 12

8. Amount and Substantiality of the Portion Columbia Pictures Corp. v. National Broadcasting

TEI ..cccsnissninsntenoneninbiiieilteniheeimenpbddniinsinieatinnamanatinn 27 Co., 137 F. Supp. 348 (S.D. Cal. 1955) 0... 7,18

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

6 St Oe a - 482 F Supp. 741 (S.D.N.Y.), aff'd, 623 F.2d 252

ST aa 21

CONCLUSION ............... Ree ee - Elsmere Music, Inc. v. National Broadcasting Co.,

623 F.2d 252 (2d Cir. 1980) _....... seniaieaiae 15, 19, 22, 28

Eveready Battery Co. v. Adolph Coors Co., 765 F.

EF oF OS ee x

Fisher v. Dees, 794 F.2d 432 (9th Cir. 1986) ..... 7, 10, 13,

15, 19, 21, 24, 28, 29

Groucho Marx Prods. v. Day and Night Co., 689

06 Uf 4 ee 12

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

EEE SRP aero 10, 13, 15, 17, 19, 20, 27

Hustler Magazine v. Falwell, 485 U.S. 46 (1988).. 11, 20

L.L. Bean, Inc. v. Drake Publishers, Inc., 811 F.2d

26 (1st Cir.), cert. denied, 483 U.S. 1013 (1987)... 5,11

Loew's Inc. v. Columbia Broadcasting Sys., 131 F. '

Supp. 165 (S.D. Cal. 1955), aff'd sub nom. Benny

v. Loew's Inc., 239 F.2d 532 (9th Cir. 1956),

aff'd by equally divided Court, 356 U.S. 43

RRS Sao SEES aE Sl ee aa 18

MCA, Ine. v. Wilson, 677 F.2d 180 (2d Cir. 1981). 14

New Era Publications Int'l v. Henry Holt & Co..,

873 F.2d 576 (2d Cir. 1989), cert. denied, 493

Sy 13

Pring v. Penthouse Int'l, Ltd., 695 F.2d 438 (10th

Cir. 1982), cert. denied, 462 U.S. 1132 (1983)... 11

Rogers v. Koons, 960 F.2d 801 (2d Cir.), cert. de-

nied, 118 S. Ct. 366 (1992) ...........................-.------. 5, 28

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

U.S. 417 (1984) ........ Se Re EERE A oO 15, 23

TABLE OF AUTHORITIES—Continued

Page

Triangle Publications, Inc. v. Knight-Ridder News-

papers, Inc., 445 F. Supp. 875 (S.D. Fla. 1978),

aff'd on other grounds, 626 F.2d 1171 (5th Cir. _

TUITE ‘icicsscnsitsniitainiieieemeninnidenidantitiatadminitinttiastaldipahiiniiaie 12

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

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

ITED) sccesinincisitniasomih i ttainaceilaginsidadiiatasineddiasicenmndaensitdisiinion 13, 14, 19

Walt Disney Prods. v. Mature Pictures Corp., 389

F. Supp. 1897 (S.D.N.Y. 1975) ............................. 22

Warner Bros. v. American Broadcasting Cos., 720

sf | 18, fe %. | ee 4, 8, 23, 24, 25

White v. Samsung Electronics America, 989 F.2d

1512 (9th Cir. 1993) (1993 WL 73915) _............ 11

STATUTES

I a cinciielalesibleals 10

| TE Re OEE Sem Re 10

4, gL eee passim

LEGISLATIVE HISTORY

H.R. Rep. No. 94-1476, 94th Cong., 2d Sess. 66,

reprinted in 1976 U.S. Code Cong. & Admin.

IIIS TIED -scossish cinistininslibiteehishermianpanenigueninimeniningmimiinies 25

CONSTITUTIONAL PROVISIONS

RS eS * eee passim

RR 8 eran a 23

OTHER AUTHORITIES

Abramson, How Much Copying Under Copyright?

Contradictions, Paradoxes, Inconsistencies, 61

(I RR 25

Albin, Beyond Fair Use: Putting Satire in Its

Proper Place, 33 UCLA L. Rev. 518 (1985) 5, 17, 21, 27

G. Highet, The Anatomy of Satire 76 (1962) 5, 7, 17, 20

Goetsch, Parody as Free Speech—The Replacement

of the Fair Use Doctrine by First Amendment

Protection, 3 W. New Eng. L. Rev. 39 (1980)... 14

M. Nimmer & D. Nimmer, Nimmer on Copyright

ITI iidiseiis hiehneneeepsdeieieiianiieaibamiiadeiteaaeenbieieacaimeniniienaineene 10, 28

TABLE OF AUTHORITIES—Continued

Note, The Parody Defense to Copyright Infringe-

ment: Productive Fair Use After Betamaz, 97

Harv. L. Rev. 1895 (1984) ...................................

Note, Trademark Parody: A Fair Use and First

Amendment Analysis, 72 U. Va. L. Rev. 1079

SD sities cieemiemriienaiiiitshinic tania

Yen, When Authors Won't Sell: Parody, Fair Use,

and Efficiency in Copyright Law, 62 U. Colo.

Sy | RRR ea en

Page

5, 29

IN THE

Supreme Court of the United States

OCTOBER TERM, 1992

No. 92-1292

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

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

MarK Ross, a/k a BROTHER MARQUIS,

Davip Hoss, a’k/a Mr. Mixx;

professionally known as THE 2 Live CREw;

LUKE SKYYWALKER RECORDS,

. Petitioners,

ACUFF-RosE Music, INC.,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

BRIEF OF AMICI CURIAE

HOME BOX OFFICE, COMEDY CENTRAL,

FOX INC., MAD MAGAZINE, and

NATIONAL BROADCASTING COMPANY, INC.,

IN SUPPORT OF PETITIONERS

STATEMENT OF INTEREST

This brief is submitted on behalf of amici curiae Home

Box Office (“HBO”), Comedy Partners, doing business

as Comedy Central (“Comedy Central”), Fox Inc.

(“Fox”), Mad Magazine (‘“‘Mad’’), National Broadcast-

ing Company, Inc. (“NBC”) (collectively Amici).'

Amici individually own and license a vast and diverse

array of copyrighted works. They also create and dis-

tribute works in which satire and parody of current

events, culture, and copyrighted materials of others (in-

cluding the others’ works) plays a significant part.

HBO provides premium television programming to over

23 million subscribing viewers throughout the United

States. HBO telecasts feature length motion pictures li-

censed to HBO, as well as other television programs that

are produced by or for HBO. Among the parodies tele-

cast by HBO are a comic movie trailer for the fictitious

film, “Raging Bullwinkle,” which parodies the film “Rag-

ing Bull,” and a parody of the “Crazy Eddie” television

commercials entitled “Crazy Ollie” in which an actor

portraying Oliver North uses flamboyant and outrageous

tactics to sell weapons to a television audience.

Comedy Central is a basic cable television service that

reaches approximately 28 million homes throughout the

United States and offers comedy programming in various

genres. Comedy Central received widespread acclaim

for its comedic coverage of the 1992 presidential cam-

paign that included parodies of candidates’ public

appearances and the presidential debates. Other exam-

ples of its parodies include “MTV: Give Me Back My

Life.” a parody of the music video channel and music

videos in general, and sketches from NBC's “Saturday

Night Live” parodying the McLaughlin Group and a

Canon camera advertisement.

Fox. through its subsidiary Twentieth Century Fox

Film Corporation produces and distributes feature length

1 Written consent of both parties has been filed with the Clerk

of the Court, as required by Supreme Court Rule 37.

2 Amici have lodged a videotape with the Court that contains

selected examples of parody they have produced, distributed, and/

or telecast.

motion pictures, including “Hot Shots! Part Deux,”

which mocks war movies and Hollywood’s penchant for

attempting to creatively name sequels to hit movies.

Fox Broadcasting Company, another subsidiary of Fox,

broadcasts television programming via its 140 network

affiliates throughout the United States. One of those tele-

vision programs, “Comic Strip Live,” is a weekly standup

comedy series that includes many parodies: Another Fox

subsidiary, Twentieth Television, produces and distributes

television programming, including “In Living Color,”

which frequently spoofs current events and popular cul-

ture, and “The Simpsons,” which often includes satirical

references to cultural icons.

Mad is a humor magazine published eight times a

year by E.C. Publications, Inc. Mad regularly pub-

lishes parodies of popular movies and television pro-

grams, such as “A-lad-Dim” (parodying the Walt Disney

movie “Aladdin”) and “I Love Luny” (satirizing the “I

Love Lucy” television series). In recent issues, Mad also

has parodied the “Superman” comic book series, as well

as the cover of Sports Illustrated magazine’s celebrated

annual swimsuit issue, entitled “Sports Titillated.”

NBC, through its owned stations and more than two

hundred affiliates, broadcasts television programming

throughout the United States. NBC's independent pro-

duction company, NBC Productions, produces original

television programming and feature films, including

“Saturday Night Live,” “Late Night,” and “The Tonight

Show With Jay Leno.” NBC also broadcasts programs

created by outside producers, including series such as

“Laugh-In” and “SCTV Network.” These series routinely

parody films, news and entertainment television programs,

songs, and current events, such as political debates.

SUMMARY OF ARGUMENT

Parody is a unique art form that imitates and distorts

existing creative works “to entertain, inform, or stir pub-

lic consciousness.” Warner Bros. v. American Broad-

casting Cos., 720 F.2d 231, 243 (2d Cir. 1983). Courts

routinely recognize that parody is a form of expression

that is protected by the First Amendment. When faced

with copyright infringement claims against parodists, how-

ever, courts have slighted the First Amendment and thus

have applied to parody a truncated version of the doc-

trine of fair use.

Application of the fair use doctrine to parody has often

been erratic and confusing. The Sixth Circuit denied

Crew created it for a commercial purpose, but few parodies

are not created for a commercial purpose. Other courts

have restricted the amount of copyrighted material a

parodist may safely use to the minimal amount neces-

sary to “conjure up” the existing work, but such a stan-

dard allows courts to make subjective judgments based

on their distaste for the perceived quality of the parody.

As a result, protection for parody has been inconsistent,

is unpredictable, and at times—as illustrated by this case

—has improperly been denied altogether.

Amici urge the Court to recognize that legitimate

parody is entitled to First Amendment protection and

that the statutory fair use factors cannot be mechanically

applied im the context of parody. The Court should ar-

ticulate an objective standard that provides consistent

protection for legitimate parody and tailors the fair use

factors to serve the First Amendment and to assist in

determining the legitimacy of a claimed parody.

ARGUMENT

I. THE NATURE OF PARODY OFTEN REQUIRES

USE OF MATERIAL FROM AN EXISTING COPY-

RIGHTED WORK.

When addressing parody in the context of copyright

infringement claims, some courts, including the court be-

low, demonstrate a fundamental misunderstanding of the

nature and purpose of this unique art form. Parody is

commentary cloaked in humor that serves “a dual pur-

pose: casting a critical eye on society’s creators while at

the same time contributing to that very pool of genius.”

Albin, Beyond Fair Use: Putting Satire in Its Proper

Place, 33 UCLA L. Rev. 518 (1985). Parody enter-

tains and represents an important—and constitutionally

protected—means of communicating ideas.

“Parody, in its purest form, is the art of creating a

new literary, musical, or other artistic work that both

mimics and renders ludicrous the style and thought of an

original.” Note, The Parody Defense to C opyright In-

fringement: Productive Fair Use After Betamax, 97 Harv.

L. Rev. 1395 (1984).* “Many of the finest political and

religious satires are . . . parodies. They preserve the

form of the original almost inviolate, and merely distort

the content a little—usually making it franker and more

realistic.” G. Highet, The Anatomy of Satire 76 (1962).

A parody may ridicule the existing work itself or it may

use that work as a vehicle for lampooning the flaws of

3 Differing definitions of “parody” abound. See, e.g., Rogers v.

Koons, 960 F.2d 301, 309-10 (2d Cir.) (defining parody as “when

one artist, for comic effect or social commentary, closely imitates

the style of another artist and in so doing creates a new art work

that makes ridiculous the style and expression of the original”),

cert. denied, 113 S. Ct. 365 (1992); L.L. Bean, Inc. v. Drake Pub-

lishers, Inc., 811 F.2d 26, 28 (1st Cir.) (“The Oxford English

Dictionary defines parody as ‘[a] composition in which the char-

acteristic turns of thought and phrase of an author are mimicked to

appear ridiculous, especially by applying them to ludicrously in-

appropriate subjects.’”), cert. denied, 483 U.S. 1013 (1987).

society at large. For example, the British radical Henry

Labouchere distorted his country’s national anthem, not

to critique the song but to criticize the prolific and pro-

fligate family of Queen Victoria:

“Grandchildren not a few,

With great-grandchildren too,

She blest has been.

We've been their sureties,

Paid them gratuities,

Pensions, annuities.

God Save the Queen.”

Id. at 77 (quoting H. Pearson, Labby (1936) ).*

Labouchere’s version of “God Save the Queen”’ illus-

trates how an artist creates a new work using portions

of an existing work as a uniquely effective means of com-

municating ideas. Labouchere used a substantial amount

of the British national anthem— including the music, the

meter, the rhyme scheme, and the final line of verse—

and created his own lyrics. The resulting original work

expresses his critical message with special meaning and

power through the humorous alteration of a familiar song

that lauds the virtues of the British monarch and her

subjects. Incorporating portions of the underlying work

gave the parody more impact and made Labouchere’s

message more accessible than if he had merely expressed

the same ideas directly. :

In a similar vein, the Fox program “In Living Color”

framed Bill Clinton’s arrival in the White House in the

context of the theme song and characters from the tele-

vision series, “The Beverly Hillbillies”:

*“God Save the Queen” also was altered in this country into

the song, “My Country ‘Tis of Thee.” While the American revi-

sion may not have been originally intended as “humorous,” it be-

came a parody of the British national anthem by heralding liberty,

the antithesis of monarchy.

Come and listen to a story ‘bout a man named Bill,

Hick razorback with a destiny to fill;

But 20 years before he would take the oath and creed,

He dodged Vietnam, and he toked a little weed.

Reefer, that is. Mary Jane. Didn’t inhale.

Well, the next thing you know Bill’s the head of

Arkansas,

Fiddling with the budget and a honey from Hee Haw;

We said, “Hey, Bill you should be the chief exec!”

So we balanced off the ticket with another redneck.

Gore, that is. Senator, Tennessee.

The Capitol Hillbillies!

Again, the parody did not target the song itself, but used

the theme represented by this song—a poor, uneducated

man becomes wealthy and important overnight—to

satirize Clinton’s rise to national prominence despite

problems in his past.

Parodies, of course, are not limited to music * but can

be created from any form of expression, including works

of literature.° drama,’ opera,” motion pictures,’ televi-

5 For other examples of music parody in addition to the case

before this Court, see, e.g., Fisher v. Dees, 794 F.2d 432 (9th Cir.

1986) (discussing parody of Johnny Mathis song, “When Sunny

Gets Blue” created by altering lyrics to “When Sonny Sniffs Glue”) ;

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

ating Mad’s “parody lyrics to 57 old standards,” including trans-

forming “A Pretty Girl is Like a Melody” into “Louella Schwartz

Describes Her Malady”), cert. denied, 379 U.S. 822 (1964). Con-

temporary music parodists also include Peter Schickele (better

known as P.D.Q. Bach) and Tom Lehrer.

® See, e.g., G. Highet, The Anatomy of Satire at 67-147 (dis-

cussing numerous examples of literary parody, including James

Joyce’s “Ulysses,” as a parody of Homer’s “Odyssey”).

7 See, e.g., id. at 120-24 (discussing parodies of drama, including

Shakespeare’s “Troilus and Cressida” as a parody of episodes of the

“Tliad’”’).

® See, e.g., id. at 124-28 (discussing satire and parody in the

works of Jaques Offenbach and Gilbert and Sullivan, whose work

also has been parodied).

® See, e.g., Columbia Pictures Corp. v. National Broadcasting

Co., 137 F. Supp. 348 (S.D. Cal. 1955) (Sid Caesar parody of film,

sion,”’ periodicals,’ advertisements,’* and fine art.’* Ac-

claimed playwright Tom Stoppard often uses parody in

his works, including “Travesties” (parodying Oscar

Wilde’s “The Importance of Being Ernest”) and

“Rosencrantz and Guildenstern Are Dead” (parodying

“Hamlet”). Television and film, as virtually universal

forms of communication, are particularly fertile areas for

parodists, providing both creative works to parody and a

medium for creation of parody. Parody of such works

has played—and continues to play— a pivotal role in

television series from “Laugh-In” and “Monty Python's

Flying Circus” to “Saturday Night Live” and “In Living

Color.”

“From Here to Eternity” entitled “From Here to Obscurity”).

Mad regularly parodies current films. Motion picture parodies

of other films include “Airplane!,” which parodied the “Airport”

films, and the recent “Loaded Weapon,” parodying the “Lethal

Weapon” movies.

10 See, e.g., Warner Bros. Inc. v. American Broadcasting Cos.,

720 F.2d 231 (2d Cir. 1983) (parody of “Superman” character and

television series by television show “The Greatest American Hero’’).

The television series “Soap,” was a parody of daytime television

dramas, as was the motion picture “Tootsie.”

11 National Lampoon magazine uses parodies extensively and has

devoted entire issues to parodying another magazine. One example

was a parody version of Sports Illustrated (which Mad has also

parodied) with articles such as “Dog Fishing in America.”

12 See, e.g., Eveready Battery Co. v. Adolph Coors Co., 765 F.

Supp. 440 (N.D. Ill. 1991) (parody of Eveready battery commer-

cials featuring the “Energizer bunny”). The Fox film “Hot Shots!

Part Deux” also parodies the “Energizer bunny.” The “Saturday

Night Live” episodes telecast by Comedy Central often parody

television commercials, including a sales pitch for “Bass-O-Matic”

as a take-off on “Veg-O-Matic.”

13 For example, Leonardo Da Vinci's masterpiece, “The Last

Supper” has often been parodied, including a scene in the film,

“M*A*S*H,” in which a suicidal army dentist’s comrades have a

“last supper” for him and the characters assume the positions in

the famous painting.

HBO is currently telecasting a program entitled

“Hearts of Hot Shots! Part Deux—A Filmmaker’s Apol-

ogy,” about the making of the new Fox film, “Hot Shots!

Part Deux.”” The HBO program previews the film but

also parodies “Hearts of Darkness: A Filmmaker’s Apoc-

alypse,” a feature about the making of Francis Ford Cop-

pola’s “Apocalypse Now.” “Hearts of Hot Shots!” tracks

the form and content of “Hearts of Darkness,” using and

altering many scenes to poke fun at its more somber pre-

cursor, The program uses humor not only to describe

the film but also as a uniquely powerful way of comment-

ing on what the program perceives as the overblown sell-

importance of “Hearts of Darkness.”

The Fox television series “Comic Strip Live’’ telecast

a parody of the Fox movie “Home Alone” entitled

“Nursing Home Alone,” which replaced the movie's

overlooked yet resourceful child hero with a feisty nurs-

ing home resident. The parody not only lampooned the

film, but was a criticism of society’s treatment of the

elderly. Comedy Central telecast an advertising parody

originally produced and aired by NBC on “Saturday

Night Live” targeting the commercial for the Canon

AE-1 camera and its slogan, “So advanced, it’s simple.”

The parody had the same “look” as the commercial, but

used comedian Eddie Murphy playing the blind Stevie

Wonder as the photographer: to demonstrate that the

camera was not that simple—and that we can laugh

with the handicapped without laughing ar them.

As these examples illustrate, parodies express a variety

of ideas. Parody can have as grand an object as expos-

ing the foibles of humanity,’ or as narrow a vision as

4 See, e.g., Berlin v. E.C. Publications, Inc., 329 F.2d 541 (2d

Cir.) (finding no infringement in Mad’s publication of “a collec-

tion of parody lyrics to 57 old standards which reflect the idiotic

world we live in today”) (emphasis added), cert. denied, 379 U.S.

822 (1964).

simply rendering an original work ridiculous."* The na-

ture of parody, however, is to comment or criticize

through the humorous use and alteration of material

taken from an existing work. A parodist thus exercises

First Amendment rights through the productive use of

material—often copyrighted material—created by an-

other artist. Cf. Harper & Row v. Nation Enters., 471

U.S. 539 (1985) (finding reproductive, as opposed to

productive, use was not fair use or protected by First

Amendment).

II. PARODY IS A FORM OF EXPRESSION ENTITLED

TO FIRST AMENDMENT PROTECTION.

Protection of parody, like no other issue of copyright

law, illustrates that “views of copyright and the First

Amendment, held ‘side by side,’ may, in fact, be con-

tradictory.” 1 M. Nimmer & D. Nimmer, Nimmer on

ture frequently requires the use of copyrighted material.

By incorporating material from a copyrighted work,

parodies arguably fall within the statutory definition of a

“derivative work,” which the holder of a valid copyright

generally has the exclusive right to create."* At least as

applied to parody, however, monopoly rights in expres-

sion are at odds with the freedom of expression guaran-

teed by the First Amendment.”

To date, copyright claims against parodists have

largely escaped First Amendment scrutiny. Courts have

recognized in other contexts, however, that satire and

5 See, e.g., Fisher v. Dees, 794 F.2d 432 (9th Cir. 1986) (alter-

ing lyrics of song, “When Sunny Gets Blue” to “When Sonny Sniffs

Glue”).

® See 17 U.S.C. §§ 101 & 106 (1988) (defining “derivative work”

and granting copyright holders exclusive rights to create or au-

thorize creation of such works).

'T “The language of the First Amendment does not limit its pro-

tection to speech which is original with the speaker but rather

states that Congress shall make ‘no law’ abridging freedom of

speech.” 1 M. Nimmer & D. Nimmer, supra, at 1-63.

parody are forms of expression protected by the First

Amendment. In Hustler Magazine v. Falwell, 485

U.S. 46 (1988), this Court held that the First Amend-

ment precluded the Reverend Jerry Falwell from recov-

ering damages for emotional distress arising out of Hust-

ler’'s offensive parody of him (which in turn was con-

tained within a parody of an advertising campaign).

The Court observed that “[dJespite their sometimes

caustic nature, . . . graphic depictions and satirical

cartoons have played a prominent role in public and

political debate.” Jd. at 54."* While acknowledging that

the parody of Falwell was “at best a distant cousin of

the political cartoons described above,” the Court found

no “principled standard to separate the one from the

other” under the First Amendment. /d. at 55."

In a related context, the First Circuit employed the

First Amendment to insulate trademark parodists from

liability under state anti-dilution statutes in L.L. Bean,

Inc. v. Drake Publishers, Inc., 811 F.2d 26 (1st Cir.),

cert. denied, 483 U.S. 1013 (1987). The court expressly

recognized that “[dJenying parodists the opportunity to

poke fun at symbols and names which have become

woven into the fabric of our daily life, would constitute

18 The Court also found that distinctive presidential features

“have been memorialized by political cartoons with an effect that

could not have been obtained by the photographer or the portrait

artist. From the viewpoint of history it is clear that our political

discourse would have been considerably poorer without them.” /d.

at 55.

19 See also White v. Samsung Electronics America, 989 F.2d

1512, —— (9th Cir. 1993) (1993 WL 73915) (Kozinski, J., dis-

senting from order rejecting suggestion for rehearing en banc )

(“Parody, humor, irreverence are all vital components of the

marketplace of ideas. The last thing we need, the last thing the

First Amendment will tolerate, is a law that lets public figures keep

people from mocking them . . . .”); Pring v. Penthouse Int'l Ltd.,

695 F.2d 438 (10th Cir. 1982) (First Amendment protected sex-

ually explicit parody of Miss America beauty contest in defamation

action), cert. denied, 462 U.S. 1132 (1983).

a serious curtailment of a protected form of expression.”

Id. at 34.”

Well-known copyrighted works are just as “woven

into the fabric of our daily lives” as famous trademarks,

and parodies of such works can play as “prominent a role

in public and political debate” as a personal lampoon; yet

no court has expressly applied the First Amendment to

parodies of copyrighted works.*' Most courts evaluating

*° The court also observed,

The central role which trademarks occupy in public discourse

(a role eagerly encouraged by trademark owners), makes them

a natural target of parodists. Trademark parodies, even when

offensive, do convey a message. The message may be simply

that business and product images need not always be taken too

seriously; a trademark parody reminds us that we are free

to laugh at the images and associations linked with the mark.

The message also may be a simple form of entertainment con-

veyed by juxtaposing the irreverent representation of the

trademark with the idealized image created by the mark’s

owner. While such a message lacks explicit political content,

that is no reason to afford it less protection under the first

amendment.

Id. (citations omitted) ; see Cliffs Notes v. Bantam Doubleday Dell

Publishing Group, Inc., 886 F.2d 490, 493 (2d Cir. 1989) ( pro-

tecting parody from liability for trademark infringement after

observing that “parody is a form of artistic expression, protected

by the First Amendment”) ; see generally, Note, Trademark Pa rody:

A Fair Use and First Amendment Analysis, 72 U. Va. L. Rev.

1079 (1986).

21 But see Triangle Publications, Inc. v. Knight-Ridder News-

papers, Inc., 445 F. Supp. 875 (S.D. Fla. 1978) (finding no fair

use of copyrighted TV Guide magazine cover but use was pro-

tected by First Amendment), aff'd on other grounds, 626 F 2d 1171

(5th Cir. 1980) (finding fair use and not reaching First Amend-

ment issue). Some courts also have noted in coprright cases “the

broad scope permitted parody in First Amendment law,” Groucho

Marz Prods. v. Day and Night Co., 689 F.2d 317, 319 n.2 (2d Cir.

1982), and have stressed without reference to the First Amend-

ment that “satire and parody are deserving of substantial free-

dom— both as entertainment and as a form of social and literary

criticism.” Berlin v. E.C. Publications, Inc., 329 F.2d 541, 545

claims of copyright infringement never mention the First

Amendment, or simply reject out of hand any constitu-

tional arguments proffered by the parodist.** Current

doctrine, therefore, recognizes an artist’s First Amend-

ment right to parody public individuals or prominent

symbols and names, but does not address whether that

artist can parody an individual’s or business’ copyrighted

works. No reasoned basis exists for such an anomaly in

the protection of parody.

Ill. THE FAIR USE DOCTRINE AS CURRENTLY IN-

TERPRETED PROVIDES UNCERTAIN PROTEC-

TION FOR PARODY.

Without attention to the First Amendment, courts

have sought to employ the doctrine of “fair use,” codi-

fied at 17 U.S.C. § 107, to determine the extent to which

parodies should be protected from claims of copyright

infringement—often with inconsistent and unpredictable

results.’ Indeed, some courts have stated that “the fair

(2d Cir.), cert. denied, 379 U.S. 822 (1964); see Fisher v. Dees,

794 F.2d 432, 437-38 (9th Cir. 1986) (“parodies play an important

role in social and literary criticism and thus merit protection even

though they may discourage or discredit an original author”).

*2 See, e.g., Walt Disney Prods. v. Air Pirates, 581 F.2d 751,

758-59 (9th Cir. 1978) (summarily rejecting First Amendment

defense because free speech rights exist only in uncopyrightable

ideas as opposed to the copyrighted expression of those ideas),

cert. denied, 439 U.S. 1132 (1979). In this case, the courts below

simply ignored the First Amendment. This Court has addressed

the First Amendment's impact on copyrights only in the context of

a claimed right to disseminate newsworthy information earlier than

the copyright holder could publish it. Harper & Row, 471 U.S. at

555-60. Parody, by contrast, would not exist at all but for its

ability to use copyrighted material.

28 The statutory fair use factors as currently applied to parody

may not be equipped to deal with First Amendment concerns. As

one commentator observed,

By engendering an inappropriate substantiality test, by un-

duly emphasizing commercial motivations, and by disregarding

use doctrine encompasses all claims of first amendment

in the copyright field.” New Era Publications Int'l v.

Henry Holt & Co., 873 F.2d 576, 584 (2d Cir. 1989),

cert. denied, 493 U.S. 1094 (1990). Such a belief is

particularly troubling because many courts—including

the Sixth Circuit in this case—appear to view the statu-

tory fair use factors as the exclusive method of parody

analysis. If not informed by the unique nature of parody

and its value under the First Amendment, however, the

four fair use factors enumerated in the Copyright Act can

be misconstrued to deny the proper level of protection.”

A. Limiting Fair Use to Noncommercial Uses Precludes

Protection for Much Legitimate Parody.

The first statutory fair use factor variously construed

in parody cases is “the purpose and character of the

use, including whether such use is of a commercial na-

ture or is for nonprofit educational purposes.” 17 U.S.C.

§ 107(1). The difficulties with application of this factor

may arise from this Court's statement in a non-parody

context that commercial use creates a presumption of

harm to the copyright holder. Sony Corp. v. Universal

the historic role of parody as entertainment and criticism, the

fair use test has placed the parodist in doubt as to the extent

of his right to publish his works and has thus inhibited the

free exercise of an ancient and valuable art.

Goetsch, Parody as Free Speech—The Replacement of the Fair

Use Doctrine by First Amendment Protection, 3 W. New Eng. L.

Rev. 39, 57 (1980). .

24 Courts, in the name of applying fair use factors, can limit

protection according to their assessment of a particular parody’s

content. Some courts have taken advantage of this flexibility to

reject a fair use defense for parodies they find in questionable

taste. See, e.g., MCA, Inc. v. Wilson, 677 F.2d 180 (2d Cir. 1981)

(disallowing parody defense to alleged infringement of song

“Boogie Woogie Bugle Boy of Company B” by song “Cunnilingus

Champion of Company C”) ; Air Pirates, 581 F.2d 7°1 (disallowing

parody defense to comic book using Disney characters engaging

in drug use and sexual activity).

City Studios, Inc., 464 U.S. 417, 451 (1984). But the

Court has further explained that “[t)he 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 with-

out paying the customary price.” Harper & Row, 471

U.S. at 562.”

In any event, this factor should not be mechanically

applied to distinguish fair from unfair use in parody. In-

deed, most—if not all—of the reported parody cases ac-

cepting the fair use defense involved commercially pro-

duced parodies.*” Those courts recognized “that many

parodies distributed commercially may be ‘more in the na-

ture of an editorial or social commentary than... an

attempt to capitalize financially on the [copyrighted]

work.’” Fisher v. Dees, 794 F.2d 432, 437 (9th Cir.

1986) (quoting Pillsbury Co. v. Milky Way Prods., 215

U.S.P.Q. 124, 131 (N.D. Ga. 1981)).

“Exploitation of the copyrighted material without pay-

ing the customary price” also has little meaning in the

context of parody. No “customary price” exists for the

right to parody a copyrighted work,” nor should such a

price be imposed.” More fundamentally, amici share

25 Even as so formulated, this standard would provide more

protection for commercially produced parody than that accorded

by the Sixth Circuit’s single-minded focus on the “commerciality”

of 2 Live Crew’s parody. As applied to parody, the inquiry would

center on whether the use improperly “exploited” the copyrighted

material, regardless of whether the parodist had a profit motive.

26 See, e.g., Fisher, 794 F.2d 432 (parody contained in com-

mercial comedy album); Elsmere Music, Inc. v. National Broad-

casting Co., 623 F.2d 252 (2d Cir. 1980) (per curiam) (television

parody of “I Love New York” promotional campaign) ; Berlin, 329

F.2d 541 (Mad parodies of popular songs).

27“The parody defense to copyright exists precisely to make

possible a use that generally cannot be bought.” Fisher, 794 F.2d

at 437.

28 1f a popular work is the subject of a parody, the parody also

may be popular. Such popularity—and its attendant financial suc-

the uneasiness of Judge Nelson in his dissent below

“about the prospect of the courts turning copyright hold-

ers into censors of parody.” Petition for Certiorari, Ap-

pendix (“App.”) A at 33a. A license requirement for

parody would enable copyright holders to stifle criticism

of, or comment on, their work and the societal themes of

which it is a part, thus severely limiting discussion in the

marketplace of ideas protected by the First Amendment.

The Sixth Circuit’s decision below is the most glaring

example of misapplication of the “commerciality” factor

to parody. Taking the language of Sony, the Sixth Cir-

cuit began its fair use inquiry “from the position that

the use is unfair.” /d. at 13a. Although it ostensibly

examined the remaining statutory fair use factors, in its

final analysis the court relied entirely on this single

factor:

In dealing with uses popularly termed parodies, the

factors involving the commercial nature of the use

and the damage to the defendant are of particular

significance. It is likely, for example, that an iden-

tical use of the copyrighted work in this case at a

private gathering on a not-for-profit basis would be

a fair use. Jt is the blatantly commercial purpose of

the derivative work that prevents this parody from

being a fair use.

Id. at 17a-18a (emphasis added). Because, like most

creative works in our society, virtually all parodies are

created for a “commercial” purpose, the Sixth Circuit’s

approach to this factor would effectively eviscerate fair

use protection for parodies.

B. The Fictional or Factual Nature of the Copyrighted

Work Should Not Affect Fair Use Protection for

Parody.

The statutory fair use factor assessing “the nature of

the copyrighted work,” 17 U.S.C. § 107(2), has not

cess—-should not be considered an “exploitation” of material from

the copyrighted work as long as the parody is a creative criticism

or comment. See discussion infra at 24-25.

been the focus of any court’s decision concerning

whether a parodist’s use of material from a _ copy-

righted work was fair use. When mentioned, however,

this factor nevertheless has been found to militate against

a finding of fair use for parody. In other contexts, the

nature of the copyrighted work affects whether a use is

fair because “(t]he law generally recognizes a greater

need to disseminate factual works than works of fiction

or fantasy.” Harper & Row, 471 U.S. at 563. Fact and

fiction, however, are equally susceptible to parody, and

neither should receive an exemption. As Judge Nelson

pointed out below in his dissent, “parody routinely sets

its sights on the fictive as opposed to the factual,” and

it makes “no sense at all to penalize the parodist for

taking as his subject precisely ie sort of work that has

been grist for the parodists’ mill for the last two and a

half millennia.” App. A at 28a.”

C. A Parodist Should Not Be Limited to Copying Only

the Essential Minimum Necessary to “Conjure Up”

the Existing Work.

The most widely used statutory fair use factor is “the

amount and substantiality of the portion [of the copy-

righted work] used in relation to the copyrighted work as

a whole.” 17 U.S.C. § 107(3). Parodies of motion pic-

tures illustrate courts’ difficulties in applying this factor.

In an early and celebrated copyright infringement case,

Comedian Jack Benny created a television parody of the

motion picture “Gaslight,” and the copyright holder of

the film sued for infringement. Mechanically reciting the

intended similarity of locale, plot developments, charac-

ters, and dialog between the two works, both the district

29 See Albin, Beyond Fair Use: Putting Satire in Its Proper

Place, 33 UCLA L. Rev. 518, 545 (1985) (“there is no reason

to protect any work from parody”); see generally G. Highet, The

Anatomy of Satire 67-147 (1962) (analyzing parodies over the

centuries, all of which were parodies of literature, drama, music,

and poetry, rather than of factual material).

court and the Ninth Circuit Court of Appeals concluded

that Benny’s use of material was an_ infringement:

“(P]arodized or burlesque taking is to be treated no dif-

ferently from any other appropriation; . . . if it is de-

termined that there was a substantial taking, infringement

exists.” Loew’s Inc. v. Columbia Broadcasting Sys., 131

F. Supp. 165, 182 (S.D. Cal. 1955), aff'd sub nom.

Benny v. Loew’s Inc., 239 F.2d 532 (9th Cir. 1956),

aff'd by equally divided Court, 356 U.S. 43 (1958).

Several months later, the same district court was pre-

sented with a virtually identical case in which comedian

Sid Caesar parodied the film “From Here to Eternity” on

his television program “Your Show of Shows,” but in this

case the court found no infringement:

Since a burlesquer must make a sufficient use of the

original to recall or conjure up the subject matter

being burlesqued, the law permits more extensive

use of the protectible portion of a copyrighted work

in the creation of a burlesque of that work in the

creation of other fictional or dramatic works not

intended as a burlesque of the original.

Columbia Pictures Corp. v. National Broadcasting Co.,

137 F. Supp. 348, 354 (S.D. Cal. 1955) (emphasis

added). Caesar’s use of material from “From Here to

Eternity” was almost the same as Benny’s use of “Gas-

light,” yet the court justified its disparate decisions with

the generalized determination that Benny’s use was “sub-

stantial,” while Caesar’s was not.

These cases continue to raise doubts about the extent

to which a parodist may use material from a copyrighted

work. The district court’s “recall or conjure up” stan-

dard, moreover, has been used by the Ninth Circuit to

set a ceiling on the amount of material a parodist may

use from a copyrighted work:

when persons are parodying a copyrighted work,

the constraints of the existing precedents do not per-

mit them to take as much of a component part 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

expression. That balance has been struck at giving

the parodist what is necessary to conjure up the

original. . . .

Walt Disney Prods. v. Air Pirates, 581 F.2d 751, 758

(9th Cir. 1978), cert. denied, 439 U.S. 1132 (1979).%

The Second Circuit, on the other hand, has interpreted

“recall or conjure up” as it was originally used by the

California district court—‘not as a limitation on how

much of an original may be used, but as a recognition

that a parody frequently needs to be more than a fleeting

evocation of an original in order to make its humorous

point.” Elsmere Music, Inc. v. National Boradcasting

Co., 623 F.2d 252, 253 n.1 (2d Cir. 1980) (per

curiam). In light of the conflict on this issue, a parodist

may feel obliged to avoid creating the “best parody” and

may attempt to use no more of the copyrighted work

than is necessary to “conjure up” or “place firmly in the

reader’s mind the parodied work and those specific at-

tributes that are to be satirized.” Air Pirates, 581 F.2d

at 758.

D. A Parody’s Adverse Effect on the Value of a Copy-

righted Work Is the Natural Product of Comedy

and Criticism.

The final fair use factor misconstrued by some courts

in the context of parody is “the effect of the use upon

the potential market for or value of the copyrighted

work.” 17 U.S.C. § 107(4). In a non-parody context,

this Court has identified the effect on the market for the

original as the most important factor in fair use analysis.

39 But see Fisher, 794 F.2d at 439 (arguably softening the de-

cision in Air Pirates by stating that “[wle did not set a fixed

limit on copying, but merely expressed our judgment that that par-

ticular parody could easily have been accomplished through more

restricted means”).

Harper & Row, 471 U.S. at 566. Coupled with the pre-

sumption of harm from commercial uses announced in

Sony, this factor can become a potent weapon against

parody, particularly when misapplied to works of implied

or direct criticism.

The Sixth Circuit’s decision below again provides a

clear example of abuse of this factor. In evaluating the

effect on the potential market, the court held, “[t]he

focus is on potential harm, and the ‘inquiry must take

account not only of harm to the original but also of

harm to the market for derivative works.’” App. A at

16a (quoting Harper & Row, 471 U.S. at 568) (em-

phasis in original). The court presumed harm because

of the commercial purpose of the parody, despite the

district court’s finding that the parody would not ad-

versely affect the market for the original work. The court

then concluded that this factor did not support a finding

of fair use. /d. at 17a.

Such a virtually irrebuttable presumption of harm pre-

cludes fair use protection of parody. By its nature true

parody often intends to “wound[] the original (however

slightly), pointing out faults, revealing hidden affections,

emphasizing weaknesses and diminishing strengths.” G.

Highet, The Anatomy of Satire 68 (1962). Any result-

ing harm to the original is likely to be the result of this

ridicule, not an unfair use of copyrighted material. Com-

pensation for losses attributable to criticism has never

been—and should not be—a legitimate concern of copy-

right law.** As one commentator succinctly observed,

moreover,

If the satire is essentially a humorous criticism of

another work, it seems quite unlikely that anyone

would decide not to buy the original and instead

buy the satire. Without the original, the satire is

31 Such “injuries,” moreover, have always been the price paid

for exercise of First Amendment freedom. E.g., Falwell, 485 U.S.

at 50-56.

not funny! In fact, if the parody is quite popular,

it may spur many people to buy the original,

thereby increasing the demand for it.

Albin, Beyond Fair Use: Putting Satire in Its Proper

Place, 33 UCLA L. Rev. 518, 545 (1985) (emphasis in

original).

Courts more sensitive to the nature and purpose of

parody accordingly have focused their inquiry on whether

the parody “fulfills the demand for the original.” Fisher,

794 F.2d at 438.% According to these courts, a finding

that the parody at issue would not fulfill demand for the

original—as should be true of all legitimate parodies—

supports a finding that the parody’s use of the copy-

righted material was fair. The presumption of harm im-

posed by the Sixth Circuit thus substantially conflicts

with much prior case law and would prevent a finding of

fair use of copyrighted material in the vast majority of

parodies.

IV. FAIR USE PROTECTION FOR PARODY REQUIRES

CONSIDERATION OF FIRST AMENDMENT CON-

CERNS.

As copyright owners themselves, amici are keenly aware

of the importance of copyright protection. In order to

protect the First Amendment rights of parodists, how-

ever, copyright law should be tailored to accomplish its

intended purpose, i.e., promoting creative achievement—

a purpose that is also served by fostering original and

creative parodies. The focus of the fair use test when ap-

plied to parody thus should be to assess the legitimacy of

a claimed parody, not merely to recite the statutory

factors.

82 Accord, e.g., Berlin, 329 F.2d at 545; Elsmere Music, Inc. v.

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

623 F.2d 252 (2d Cir. 1980) (per curiam).

A. Protection for Parody Must Ensure the Preserva-

tion of First Amendment Values Without Infring-

ing the Interests of Copyright Owners.

Without this Court’s guidance on the meaning and

purpose of parody, the lower courts will continue to apply

the fair use factors in an erratic and unpredictable man-

ner. A parody may criticize the work from which it uses

material, or it may use that material to comment on so-

cietal themes of which the existing work is a part.” A

parody may focus on part of a particular work, or it may

target the work as a whole; it may directly criticize the

copyrighted work by making it laughable, or it may build

more subtly on the work to convey indirectly a comment

that could not be expressed head on. As the Second Cir-

cuit and others have emphasized, however, a parody must

add some original element of comment or criticism to be

worthy of protection, not simply reproduce an existing

work.** The originality of the parody comes from “using

the [existing work] as a known element of modern cul-

ture and contributing something new for humorous effect

or commentary.” Elsmere Music, 623 F.2d at 253 n.1.

This Court should find, therefore, that a protected par-

ody is an original artistic work that incorporates portions

of the ideas and expressions of a recognizable, previously

published work, altering or building on that previous work

as a means of expressing criticism or comment on that

work or on societal themes of which that work is a part.

Such protection for parody minimizes the impact on the

rights of copyright owners while extending to parodists

their expressive rights under the First Amendment.

33 See Berlin, 329 F.2d 541 (protecting Mad parodies to be sung

to the tune of popular songs, not all of which were direct targets

of the parodies).

34 See, e.g., Walt Disney Prods. v. Mature Pictures Corp., 389

F. Supp. 1397, 1398 (S.D.N.Y. 1975) (use of entire copyrighted

song as background music to an orgy “did not parody the Mickey

Mouse March but sought only to improperly use the copyrighted

material’).

Copyrights, of course, also have their source in the

Constitution, which authorizes Congress “[t]o promote

the Progress of Science and useful Arts, by securing for

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

respective Writings.” U.S. Const. art. I, § 8, cl. 8. Eco-

nomic incentives are granted to authors, however, “to

promote the progress of science and useful arts’’:

“The limited scope of the copyright holder’s statu-

tory monopoly, like the limited copyright duration

required by the Constitution, reflects a balance of

competing claims upon the public interest: Creative

work is to be encouraged and rewarded, but private

motivation must ultimately serve the cause of pro-

moting broad public availability of literature, music,

and the other arts. The immediate effect of our

thor’s’ creative labor. But the ultimate aim is, by

this incentive, to stimulate artistic creativity for the

general public good.”

Sony, 464 U.S. at 431-32 (quoting Twentieth Century

Music Corp. v. Aiken, 422 U.S. 151, 156 (1975)).*

Protection for parody might, in theory, deny creators

a full economic benefit of their works because they would

not be able to exact a fee for parody licenses, but in

reality, no such market is workable:

Parodists will seldom get permission from those

whose works are parodied. Self-esteem is seldom

85 As the Second Circuit has also observed,

It is a fundamental objective of the copyright law to foster

creativity. However, that law has the capacity both to augment

and diminish the prospects for creativity. By assuring the au-

thor of an original work the exclusive benefits of whatever com-

mercial success his or her work enjoys, the law obviously pro-

motes creativity. At the same time, it can deter the creation

of new works if authors are fearful that their creations will

too readily be found to be substantially similar to preexisting

works.

Warner Bros. v. American Broadcasting Cos., 720 F.2d 231, 240

(2d Cir. 1983).

strong enough to permit granting of permission even

in exchange for a reasonable fee. The parody de-

fense to copyright infringement exists precisely to

make possible a use that generally cannot be bought.

Fisher, 794 F.2d at 437 (citation omitted); accord Yen,

When Authors Won't Sell: Parody, Fair Use, and Effi-

ciency in Copyright Law, 62 U. Colo. L. Rev. 79, 90

(1991) (“As an initial matter, parodists who inquire

about the availability of parody rights generally meet the

reply that the rights are simply not for sale. Furthermore,

authors who sue parodists often seem as concerned with

stopping unflattering references to their work as they are

with any financial loss.”) (footnote omitted).**

In any event, the absence of a market for parody

licensing should not deter artists from future creation.

After all, any work of sufficient notoriety to be the

object of parody has already secured for its pro-

prietor considerable financial benefit. According

that proprietor further protection against parody

does little to promote creativity, but it places a sub-

Stantial inhibition upon the creativity of authors

adept at using parody to entertain, inform, or stir

public consciousness.

Warner Bros. v. American Broadcasting Cos., 720 F.2d

231, 242-43 (2d Cir. 1983). Creators can reasonably

anticipate revenues from licensing a film adaptation of

their novel, for example, or from granting permission for

use of their song in a movie soundtrack. But they should

have no reasonable anticipation of licensing their works to

critics—be they reviewers or parodists—and thus will not

be discouraged from creating works by the absence of «

market for parody rights. Establishing such a market also

would raise serious First Amendment concerns, and would

be tantamount to requiring a speaker to obtain permis-

sion to criticize a public individual or institution.

86 The defendant in Fisher sought and was denied permission to

use the copyrighted song for his parody. 794 F.2d at 437. 2 Live

Crew also sought, and not surprisingly was refused, permission

to parody “Oh Pretty Woman.”

“Parody that qualifies as an original work represents

an expansion of artistic creation, which is exactly what

Copying Under Copyright? Contradictions, Paradoxes, In-

consistencies, 61 Temple L. Rev. 133, 170 n.307 (1988);

see Warner Bros., 720 F.2d at 242 (“It is decidedly in

the interests of creativity, not piracy, to permit authors to

take well-known phrases and fragments from copyrighted

works and add their own contributions of commentary or

humor.”’). Protecting parody as amici respectfully pro-

pose would further the goals of both copyright and free

expression.

B. The Statutory Fair Use Factors Are Not Exclusive

But Should Assist in Measuring the Legitimacy of

a Claimed Parody.

The fair use doctrine can accommodate First Amend-

ment and other interests in parody. Indeed, Congress

expressly identified parody as a fair use in the 1976

amendment codifying the doctrine, and Congress never

intended that the four statutory factors be the exclusive

means of assessing fair use in all circumstances: “Beyond

a very broad statutory explanation of what fair use is and

some of the criteria applicable to it, the courts must be

free to adapt the doctrine to particular situations on a

case-by-case basis. Section 107 is intended to restate

the present judicial doctrine of fair use, not to change,

narrow, or enlarge it in any way.” H.R. Rep. No. 94-

1476, 94th Cong., 2d Sess. 66, reprinted in 1976 US.

Code Cong. & Admin. News 5659, 5680 (emphasis

added ).** When used to assess the legitimacy of a claimed

parody, the statutory factors can become an important

means of assuring protection for both parodists and copy-

right owners.

87 See id. at 5678 (listing “use in a parody of some of the con-

tent of the work parodied” as a fair use).

1. Purpose and Character of the Use.

Analysis under the first statutory fair use factor, “the

purpose and character of the use,” should focus on

whether the claimed parody has altered or built on ma-

terial incorporated from an underlying copyrighted work

as a vehicle for criticism or comment. The “commercial”

or “noncommercial” purpose of the parodist in creating

the parody should not determine whether a particular

work is a parody subject to fair use protection.

In the case before the Court, 2 Live Crew’s “Pretty

Woman” is an original work that incorporates portions of

Acuff-Rose’s “Oh Pretty Woman,” humorously altering

the music, lyrics, and style of that work as a means of

criticism or comment. As the district court concluded,

“Acuff-Rose may not like it, and 2 Live Crew may not

have created the best parody of the original, but never-

theless the facts convincingly demonstrate that it is a

parody.” App. B at 42a. The Sixth Circuit accepted this

conclusion.** App. A at 10a. That is all that should be

required under this factor.

2. Nature of the Copyrighted Work.

The “nature of the copyrighted work” generally should

not affect the analysis except to require that only ma-

terial from a recognizable, previously published work

may be used in a parody. The nature of parody is to

criticize or comment using material from a familiar work,

88 The Sixth Circuit’s reluctance in accepting the district court’s

conclusion stemmed from the circuit court’s overly restrictive view

that it is “direct comment, comment which is expressly and un-

ambiguously directed at the message of the original work, which

constitutes parody,” and “even accepting that ‘Pretty Woman’ is a

comment on the banality of white-centered popular music, we can-

not discern any parody of the original song.” App. A at lla n.8.

The Sixth Circuit nevertheless found that this factor weighed

against a finding of fair use because of 2 Live Crew’s commercial

purpose in creating the parody.

not a work that has yet to be published or widely dis-

tributed. Cf. Harper & Row, 471 U.S. 539 (analyzing

fair use of unpublished material in non-parody context).

“Oh Pretty Woman” has been published and is among

the most recognizable songs in its genre. That should

satisfy this factor. That “Oh Pretty Woman” is a “crea-

tive work” as opposed to a work of fact has no impact

on whether “Pretty Woman” is a legitimate parody.”

3. Amount and Substantiality of the Portion Used.

The “amount and substantiality” factor has greater

relevance to the legitimacy of a parody, but the inquiry

should be limited to whether the challenged work is

“original,” i.e., has made a productive use of the copy-

righted material, as opposed to simply reproducing that

material with little or no attempt to alter or build on it.

As interpreted by the Ninth Circuit, the “recall or con-

jure up” test is too restrictive. Parodists should be per-

mitted to create the “best parody,” even if they use more

material than is sufficient only to “recall or conjure up”

the existing work.

The inquiry under this factor accordingly should focus

on how the copyrighted material is used in the parody.

To be eligible for fair use protection, all copyrighted ma-

terial taken from an existing work and used in a parody

of that work must be the object or part of the object of

the parody’s comment or criticism. On the other hand,

if the existing work is not parodied directly but is utilized

as a vehicle for satirizing broader societal themes, the

copyrighted material taken from it must be used as an

effective part of the parody, i.e., it must contribute in

a meaningful way to the comment or criticism intended

39 See Albin, Beyond Fair Use: Putting Satire in Its Proper

Place, 33 UCLA L. Rev. 518, 545 (1985) (“The ‘nature of the

copyrighted work’ is ignored, as it should be, since there is no

reason to protect any work from parody.”).

by the parody.“ This will ensure that copyrighted ma-

terial is not gratuitously included in the parody simply

to capitalize on the success of the existing work. See

Rogers v. Koons, 960 F.2d 301, 311 (2d Cir.) (finding

that copyrighted material “was copied nearly in toto,

much more than would have been necessary even if the

sculpture had been a parody of plaintiff's work”), cert.

denied, 113 S. Ct. 365 (1992)."

Here, the district court found that 2 Live Crew’s work

“appropriates no more from the original than is neces-

sary to accomplish reasonably its parodic purpose.” App.

B at 47a. “Pretty Woman” thus made a creative, as

opposed to simply a reproductive, use of “Oh Pretty

Woman.” The Sixth Circuit incorrectly found that this

factor did not support a finding of fair use because the

court “conclude[d] that taking the heart of the original

and making it the heart of a new work was to purloin a

substantial portion of the essence of the original.” App.

A at 16a. 2 Live Crew produced a work in which copy-

righted material was used only to comment on the exist-

Circuit’s recognition that extensive use of copyrighted material

is a fair use “provided the parody builds upon the original, using

the original as a known element of modern culture and contributing

something new for humorous effect or commentary.” Elsmere

Music, 623 F.2d at 253 n.1.

*1 Such a standard also would eliminate some courts’ curious

notion that music parodies are somehow entitled to use more of the

copyrighted work to “conjure up” the existing work than are

other types of parodies. See, e.g., Fisher, 794 F.2d at 439 (song

parody has a “ ‘special need for accuracy,’ providing some license

for ‘closer’ parody”) (quoting Air Pirates, 581 F.2d at 758). As 2

Live Crew’s parody illustrates, however, some song parodies may

use less of the original work than others. Regardless of the art

form parodied, “short of . . . near-verbatim identity of content, the

disparity of function between a serious work, and a satire based

on it, will sometimes justify the defense of fair use even where

substantial similarity exists.” 3 M. Nimmer & D. Nimmer, Nimmer

omitted).

ing work and the type of music it represents—a_ use

that should satisfy this factor.

4. Effect on the Market.

When properly interpreted, the “effect of the use upon

the potential market for or value of the copyrighted work”

remains a vital factor in assessing the legitimacy of a

parody. The inquiry under this factor is whether the

claimed parody “fulfills the demand” for the existing

work. “A court should thus require the plaintiff to dem-

onstrate potential or actual commercial substitution of

the parody for the original.” Note, The Parody Defense

to Copyright Infringement: Productive Fair Use After

Betamax, 97 Harv. L. Rev. 1395, 1409-10 (1984).

Acuff-Rose has not demonstrated that “Pretty Woman”

fulfills the demand for “Oh Pretty Woman.” The district

court found that “it is extremely unlikely that 2 Live

Crew’s song could adversely affect the market for the

original. The intended audience for the two songs is

entirely different.” App. B at 49a. The Sixth Circuit

did not disagree but relied on a presumption of harm

resulting from a commercial use. /d. at 16a-17a. No

such presumption is appropriate for parody. The district

court’s inquiry was the proper one, and its conclusion

paralleled the Ninth Circuit’s decision in similar circum-

stances: “We do not believe that consumers desirous of

hearing a romantic and nostalgic ballad such as the

composer’s song would be satisfied to purchase the par-

ody instead.” Fisher, 794 F.2d at 438.

2 Live Crew’s work is a true parody. It is an original

musical work that incorporates portions of the ideas and

expression of an identifiable, previously published work,

altering or building on that previous work as a means of

expressing criticism or comment. “Pretty Woman” thus

is entitled to First Amendment protection under the fair

use doctrine.

CONCLUSION

Adequate protection for parody must be premised on

proper application of the fair use doctrine in light of the

First Amendment. 2 Live Crew used copyrighted ma-

terial to create a legitimate parody. Such a work is

entitled to full First Amendment and fair use protection.

Respectfully submitted,

Of Counsel: DANIEL M. WAGGONER *

JOHN S. REDPATH, JR. P. CAMERON DEVORE

STEPHEN SAPIENZA GrecoryY J. KopTa

DAVIS WRIGHT TREMAINE

Home Box Office

1100 Avenue of the Americas 2600 Century Square

1501 Fourth Avenue

New York, NY 10036

Seattle, WA 98101-1688

Attorneys for Home Box Office (206) 622-3150

STEVEN PAUL MARK Counsel for Amici Curiae

Comedy Central

1775 Broadway

New York, NY 10019

Attorney for Comedy Central

GEORGE VRADENBURG

BONNIE BOGIN

Fox Inc.

10201 West Pico Blvd.

Building 12, Room 116

Los Angeles, CA 90064

Attorneys for Fox Inc.

LILLIAN LASERSON

E.C. Publications, Inc.

485 Madison Avenue

New York, NY 10022

Attorney for Mad Magazine

ANNE H. EGERTON

National Broadcasting

Company, Inc.

3000 West Alameda Avenue,

Room 124

Burbank, CA 91523

RICHARD COTTON

MICHELL SALEM

National Broadcasting

Company, Inc.

30 Rockefeller Plaza

New York, NY 10112

Attorneys for National

Broadcasting Company, Inc. * Counsel of Record

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.