2 Live Crew made a commercial parody of Roy Orbison's song "Oh, Pretty Woman."
Orbison's written in 1964, and Acuff-Rose Music, Inc. (P) registered the song for copyright protection.
2 Live Crew (D) wrote a song called "Pretty Woman" which intended to satirize the original work.
D's manager told P that they would give P credit for the song and were willing to pay a fee. P refused to permit the use.
D released the song anyway, crediting Orbison and D as author/publisher.
Procedural History
District court granted summary judgment for D.
COA reversed, holding that the defense of fair use was barred by the song's commercial character and excessive borrowing.
SCOTUS reversed and remanded, holding for D.
Issues
Does a commercial parody of a song qualify as fair use within the meaning of the Copyright Act of 1976?
Holding/Rule
A parody's commercial character is only one element to be weighed in a fair use inquiry, and consideration should also be given to the nature of the parody in weighing the degree of copying.
Four factor test for determining fair use.
Reasoning
But for a finding of fair use, D would be infringing on P's rights.
Doctrine of fair use is very old, dating back to the 1700s.
Intention is to avoid stifling creativity that the law is designed to foster.
Therefore, it does not need a bright-line rule, but rather a case-by-case analysis (factors test).
Factor Test for Fair Use:
"Purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes."
Elements:
Guided by the examples in Sec. 107.
Central purpose is to see whether the new work merely "supersedes the objects" of the original creation, or adds something new.
Does this new creation have a further purpose or different character than the original with a new meaning or message? Is it transformative?
Parody has an obvious claim to transformative value.
For purposes of copyright law, the heart of the parody's value is that it comments on the old work.
Shouldn't be using the original work just to gain attention or to avoid having to come up with something new.
Needs to mimic an original to make its point (unlike satire).
Application to this case:
There are clearly elements of criticism in D's song; whether it is in good or bad taste is not up to the courts to decide.
Commercial use is only one element, and is not determinative.
"Nature of the copyrighted work"
Elements:
"Value of the material used."
Calls for recognition that some works are closer to the core of intended copyright protection than others, and thus fair use is more difficult to establish.
Application to this case:
Orbison's original creative expression does fall in this category, but it is not very helpful here because parody's. in order to serve their function, must copy publicly known, expressive works.
Are "the amount and substantiality of the portion used in relation to the copyrighted work as a whole" reasonable in relation to the purpose of the copying?
Elements:
Consider the persuasiveness of a parodist's justification for the particular copying done.
Similar to the first factor.
Degree to which the parody might serve as a market substitute for the original.
Quality of what was taken from the original, rather than just quantity, is considered, as well as whether a substantial portion was copied verbatim.
Application to this case:
While it is true that 2 Live Crew copied the opening riff of the song as well as the first line of words, it is essential to the nature of parody that the parody copy some recognizable portion of the song.
Copying does not become excessive just because the "heart" of the work was copied. However, context is everything. It is significant that Ds immediately departed from the lyrics after the first line, as well as the fact that they incorporated other sounds into the music.
No more was taken then necessary in relation to the song's parodic purposes.
"The effect of the use upon the potential market for or value of the copyrighted work."
Elements:
Extent of market harm
"Whether unrestricted and widespread conduct of the sort engaged in by the D would result in a substantially adverse impact on the potential market" for the original (aggregate).
Must take into account harm to original but also harm to the market for derivative works.
Take into account transformative use vs. duplication.
Ex: A parody and the original use usually serve different market functions.
Also, if a parody's legitimate purpose is to criticize the original, market harm might result, but this is fair market harm (cf. Keebil)
Application to this case:
COA appeals applied the presumption about the effect of commercial use, which is in error.
When the second use is transformative, as in this case, market harm may not be readily inferred, as it could with a duplication of the entirety of the original.
Difficult to discern the parody's effect on a market for a rap version of the original. Evidentiary issue.
Kennedy's concurring opinion says the Court has to be careful about assuming something is a parody, and more analysis must be given to that part in the future.
