Case Briefs
Case(s): Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994)
Facts: Acuff-Rose Music, Inc. sued 2 Live Crew for copyright infringement in the United States District Court for the Middle District of Tennessee in 1990, accusing the popular rap group of infringing its rights in the rock ballad called “Oh, Pretty Woman” that Roy Orbison and William Dees wrote in 1964. Orbison and Dees assigned their rights in the song to Acuff-Rose Music, Inc., which registered the song for copyright protection.
According to Acuff-Rose, in 1989, 2 Live Crew’s Luther R. Campbell wrote a song entitled “Pretty Woman,” which included comical lyrics intended to satirize Orbison and Dees’ song. 2 Live Crew informed Acuff-Rose that they had written a parody of “Oh, Pretty Woman,” and that they were willing to “afford credit for ownership and authorship to Acuff-Rose, Dees and Orbison, and pay a fee for the use.” Acuff-Rose refused permission and 2 Live Crew proceeded to release a record that contained the song by way of albums and compact discs that identified the authors of “Pretty Woman” as Orbison and Dees and its publisher as Acuff Rose. After the album sold nearly a quarter of a million copies, Acuff-Rose filed its copyright infringement suit.
District Court & Court of Appeals
The district court granted summary judgment for 2 Live Crew, finding that that they had made fair use of Orbison’s song. Specifically, the court held that the “commercial purpose of 2 Live Crew’s song was no bar to fair use; that 2 Live Crew’s version was a parody, which ‘quickly degenerates into a play on words, substituting predictable lyrics with shocking ones’ to show ‘how bland and banal the Orbison song’ is; that 2 Live Crew had taken no more than was necessary to ‘conjure up’ the original in order to parody it; and that it was ‘extremely unlikely that 2 Live Crew’s song could adversely affect the market for the original.’”
On appeal, the U.S. Court of Appeals for the Sixth Circuit reversed, holding that the District Court “had put too little emphasis on the fact that “every commercial use … is presumptively … unfair,” and held that “the admittedly commercial nature” of the parody “requires the conclusion” that the first of four factors relevant under the statute weighs against a finding of fair use. It also stated that by “taking the heart of the original and making it the heart of a new work, 2 Live Crew had, qualitatively, taken too much.” Ultimately, the court held that “the blatantly commercial purpose of the derivative work … prevents [the] parody from being a fair use.”
Supreme Court Decision
The Supreme Court granted certiorari “to determine whether 2 Live Crew’s commercial parody could be a fair use within the meaning of the Copyright Act of 1976.” The court held in March 1994 that “[i]t was error for the Court of Appeals to conclude that the commercial nature of 2 Live Crew’s parody of ‘Oh, Pretty Woman’ rendered it presumptively unfair” and that “[t]he court also erred in holding that 2 Live Crew had necessarily copied excessively from the Orbison original, considering the parodic purpose of the use.”
Writing for a unanimous court, Justice Souter held that the commercial (or nonprofit educational) purpose of a work is only one element of its purpose and character. Like other uses, parody “has to work its way through the relevant factors, and be judged case by case, in light of the ends of the copyright law.” The Supreme Court ultimately reversed and remanded the case for further proceedings, but not before it considered the four fair use factors as follows …
Factor One – The Purpose and Character of the Use
The Court looked at “whether the use is of a commercial nature or is for nonprofit educational purposes,” and considered “whether the use is for criticism, or comment, or news reporting, and the like.” Essentially, the question is whether the new work is “transformative.” In its analysis, the Court agreed with the lower courts that the new work is a parody, but provided that “the threshold question when fair use is raised in defense of parody is whether a parodic character may reasonably be perceived.” The Court found that “2 Live Crew’s song reasonably could be perceived as commenting on the original or criticizing it, to some degree.”
The Court rejected the Court of Appeal’s analysis because it relied on the presumption that “every commercial use of copyrighted material is … unfair.” Although it is important to consider the commercial use of the new work, the Court concluded that it is not dispositive in barring a finding of fair use.
Factor Two – The Nature of the Work
The Court agreed with the lower courts that “the Orbison original’s creative expression for public dissemination falls within the core of the copyright’s protective purposes.” However, the Court reasoned that this fact is not helpful here because “parodies almost invariably copy publicly known, expressive works.”
Factor Three – The Amount and Substantiality of the Portion Used
The Court departed from the Court of Appeals in applying certain considerations to the parody at issue. The Court explained that the point of parody is to “conjure up” enough of the original to make it recognizable. The Court evaluated the lyrics and music separately. For the lyrics, the Court found “no more was taken than necessary.” As to the music, 2 Live crew copied the bass riff and repeated it, along with interposing other distinctive sounds––the Court expressed no opinion about the question of excessive copying and remanded to permit evaluation of the amount taken in light of the song serving as a parody.
Factor Four – The Effect of the Use Upon the Potential Market
The Court considered “the extent of market harm caused by the particular action so the alleged infringer, but also ‘whether unrestricted and widespread conduct of the sort engaged in by the defendant … would result in a substantially adverse impact on the potential market’ for the original.” Like in the Court of Appeals’ first factor analysis, it presumed in its fourth factor analysis that a likelihood of future harms exists since the new work was wholly commercial. The Supreme Court held this was an error, and that when the secondary use is transformative rather than a market replacement for the original, it is unlikely that there will be future harm. This finding relies on the fact that a parody and the original usually have separate market functions.