Campbell v. Acuff-Rose Music

The members of the rap music group 2 Live Crew, Luther R. Campbell[?], Christopher Wongwon[?], Mark Ross[?], and David Hobbs[?], composed a song called "Pretty Woman," a parody based on Roy Orbison's rock ballad, "Oh, Pretty Woman." 2 Live Crew's manager asked Acuff-Rose Music if they could license Roy Orbison's tune for the ballad to be used as a parody. Acuff-Rose Music[?] refused to grant the band a license but 2 Live Crew nonetheless produced and released the parody. Almost a year later, after nearly a quarter of a millioncopies of the recording had been sold, Acuff Rose sued 2 Live Crew and its record company, Luke Skyywalker Records[?], for copyright infringement. The District Court granted summary judgment for 2 Live Crew, holding that its song was a parody that made fair use of the original song under § 107 of the Copyright Act of 1976, (17 U.S.C. § 107). The Court of Appeals reversed and remanded, holding that the commercial nature of the parody rendered it presumptively unfair under the first of four factors relevant under §107; that, by taking the "heart" of the original and making it the "heart" of a new work, 2 Live Crew had taken too much under the third §107 factor; and that market harm for purposes of the fourth §107 factor had been established by a presumption attaching to commercial uses.

Fair use materials from Supreme Court Judgment The below texts are fair use excerpts taken from the Supreme Court judgment rendered by Justice Souter, 1) an excerpt from Title 17 on fair use, 2) the court's statement that there is no bright line in fair use, it is a case by case determination; 3) the threshold issue is the character of the work, is it reasonably perceived to be parody; 4) the error of the Court of Appeals — the commercial character of the work is not dispositive, commerical works can be parody when the analysis from the other criterion are taken together.

==1). § 107. Limitations on exclusive rights: Fair use==

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include--

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portionused in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors." 17 U.S.C. § 107 (1988 ed. and Supp. IV).

2). No bright line on parody After reviewing the historical development of fair use from the English law, through Joseph Story's formulation to the amendment in the 1976 which followed Judge Story's formulation the court held that there can be no single test that can be applied, but the four factors found in § must be applied to each situation on a case by case basis.

The fact that parody can claim legitimacy for some appropriation does not, of course, tell either parodist or judge much about where to draw the line. Like a book review quoting the copyrighted material criticized, parody may or may not be fair use, and petitioner's suggestion that any parodic use is presumptively fair has no more justification in law or fact than the equally hopeful claim that any use for news reporting should be presumed fair, see Harper & Row, 471 U. S., at 561. The Act has no hint of an evidentiary preference for parodists over their victims, and no workable presumption for parody could take account of the fact that parody often shades into satire when society is lampooned through its creative artifacts, or that a work may contain both parodic and non parodic elements. Accordingly, parody, like any other use, has to work its way through the relevant factors, and be judged case by case, in light of the ends of the copyright law.

3). Threshold question The threshold question: is parody reasonably perceived to be the character of the work? Questions of the quality of the work, taste, etc. do not matter.

The threshold question when fair use is raised in defense of parody is whether a parodic character may reasonably be perceived. [n.16] Whether, going beyond that, parody is in good taste or bad does not and should not matter to fair use. As Justice Holmes explained, "[i]t would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of [a work], outside of the narrowest and most obvious limits. At the one extreme some works of genius would be sure to miss appreciation. Their very novelty would make them repulsive until the public had learned the new language in which their author spoke." Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 251 (1903) (circus posters have copyright protection);...

4). Error of Court of Appeals The Court of Appeals, however, immediately cut short the enquiry into 2 Live Crew's fair use claim by confining its treatment of the first factor essentially to one relevant fact, the commercial nature of the use. The court then inflated the significance of this fact by applying a presumption ostensibly culled from Sony, that "every commercial use of copyrighted material is presumptively . . . unfair . . . ." Sony, 464 U. S., at 451. In giving virtually dispositive weight to the commercial nature of the parody, the Court of Appeals erred.

[....to be completed...]

External link

• 510 U.S. 569 (1994) (http://supct.law.cornell.edu/supct/html/92-1292.ZS)