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

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## Record

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

## Text

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

iv
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

v

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-

2

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.

3

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.

4

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
copyright protection for “Pretty Woman” because 2 Live
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.

5
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).

6

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.

7

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.

9

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).

10

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
Copyright § 1.10[A], at 1-62 (1992). Parody by its na-
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.

11

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).

12

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

13

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

14

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).

15

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-

16

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.

17

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).

18

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

19

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”).

20

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.

21

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).

22

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’).

23

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
copyright law is to secure a fair return for an ‘au-
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).

24

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.”

25

“Parody that qualifies as an original work represents
an expansion of artistic creation, which is exactly what
copyright[] law seeks to protect.” Abramson, How Much
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).

26
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.

27

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.”).

28

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-

#© This standard is a more detailed articulation of the Second
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
on Copyright § 13.05[C], at 13-102.28(18)-(19) (1992) (footnote
omitted).

29

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.

30
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0382%3A17. Public record. Not legal advice.