Campbell v. Acuff-Rose Music (92-1292), 510 U.S. 569 (1994)

The rap group 2 Live Crew used a sample of Roy Orbison and William Dees' "Oh, Pretty Woman" for their track, "Pretty Woman", on their album As Clean As They Wanna Be without Orbison's permission. This led to a copyright infringement case being filed by Orbison and a ruling by the Supreme Court which has great implications for both rap and music as a whole. 2 Live Crew's defense was that their song was a parody, and as such should be seen as fair use since a parody must borrow heavily from the original artwork in order to spoof it.

The court went through the 4 factors that typically determine fair use as outlined by the Copyright Act of 1976. On the first factor (The purpose and character of the use) the court determined that since 2 Live Crew's version of the song was fairly transformative, this outweighed the commercialism that would rule against fair use. As for the second factor (the nature of the copyrighted work), the Supreme Court decided that because the song is a parody, it intrinsically borrows heavily from a public, copyrighted work, and thus does not put too much weight on this factor for determining fair use. The third factor, (the amount and substantiality of the portion of the original work used), the court decided that as a parody, it was necessary for 2 Live Crew to borrow the "heart" of the work, however they differentiated their song enough from Orbison's by changing the lyrics heavily. For the fourth factor, (the effect of the use upon the market (or potential market) for the original work), they determined that it is unlikely for this work to substitute the original, and thus would not harm Sony's market.

This case is very important to music because it was one of the earliest to set down guidelines as for sampling in music, though it was a parody. Also, at this point, these types of cases were rare for courts to see, so the legislation for ruling on them was ill-defined. It was determined that parodies can not be automatically determined by an aggregate set of laws and must be tried on a case to case basis. Since rap music often samples in ways like 2 Live Crew did, this ruling essentially let the reigns free for other artists to sample music by diminishing their fears of it not being fair use. However, this is a parody and majority of rap songs are not, meaning that they are given less leeway when it comes to fair use.

In this case, the Supreme Court rules 2 Live Crew’s commercial parody of a Roy Orbison song is protected under the auspices of fair use.  The court found the new song to be significantly transformative, both building upon the earlier work as a new entity and sufficiently parodying the original in a way that was ruled as fair use.  The court also found a portion of Section 107, “the amount and substantiality of the portion used in relation the copyrighted work as a whole” to be a key factor, deciding that the small amount of the song actually used was significantly small enough, even if that portion displayed the heart of the work.  “Even if 2 Live Crew's copying of the original's first line of lyrics and characteristic opening bass riff may be said to go to the original's 'heart,' that heart is what most readily conjures up the song for parody, and it is the heart at which parody takes aim.”

    I reference this case in relation to my project because this case deals with two important factors: parody, and what is said to be the “heart of the work.”  My project will be clearly defined as parody, while at the same time drawing from key thematic elements of the original works, which creates the potential for the project to be deemed as taking the heart of the work.

    This is also an issue as the audio track of my project will be a continuous copyrighted work, taking the original in its entirety and transforming it to a new medium of video.

CAMPBELL v. ACUFF-ROSE MUSIC, INC. (Supreme Court, 1994)
    This case is perhaps the most important decision by any court on fair use and parody. Singer Roy Orbison brought suit for copyright infringement against rap group 2 Live Crew for copying the opening lyrics and beat to Orbison’s song “Oh Pretty Woman.” Going all the way to the Supreme Court, Justice Souter held for the unanimous court that 2 Live Crew’s song qualified for fair use protection because of its parodic nature. Drawing a shape contrast with the decisions in Disney v. Air Pirates and Original Appalachian Artworks v. TOPPS Chewing Gum, the court ruled that “Even if 2 Live Crew’s copying of the original’s first line of lyrics and characteristic opening bass riff may be said to go to the original’s ‘heart,’ that heart is what most readily conjures up the song for parody, and it is the heart at which parody takes aim” (e). This is because 2 Live Crew took parts of “Oh Pretty Woman” and transformed them into an original entity.

    Souter notes that “It is uncontested here that 2 Live Crew’s song would be an infringement ... but for a finding of fair use through parody” (II). This is because parody, by its very nature, requires the taking of a certain amount of an original work. Since the purpose of parody is to criticize, a parody must be allowed to copy enough of a work that audiences will be able to recognize it as a parody; to take too little would muddle in the audience’s mind whether or not something is a parody. This is thus a drastic departure from Disney v. Air Pirates, which ruled that, though the “best parodies” required substantial similarities to the original, creating the “best parody” is not an exemption from infringement.

    The court also laid out the legal distinction between parody and satire: “For the purposes of copyright law ... is the use of some elements of a prior author’s composition to create a new one that, at least in part, comments on that author’s works. ... If, on the contrary, the commentary has no critical bearing on the substance or style of the original composition ... the claim to fairness in borrowing from another’s work diminishes accordingly” (A). Put another way, and illustrated in Dr. Seuss v. Penguin Books, a parody comments upon what it is mocking, while a satire copies as a vehicle for mocking another target.

    The reason this is such a landmark case is that it was a monumental victory for free speech. As noted from “The Wind Done Gone, the Law Done Wrong?”, the primary nature of copyright law is to advance the progress of arts and science; limited monopolies are one vehicle, but they are not the only one. And also noted elsewhere, the limited monopolies often serve to limit free speech toward the advancement of arts and science. However, to counterbalance this is parody (and, hopefully, soon satire--see “Unfair Use”), the main purpose of which is to comment or critique another work. Limiting parodic fair use stifles criticism and free speech; however, allowing it not only advances free speech, but also advances the general arts and science because, as Souter noted, parody is by its nature transformative and creates new work.