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 Chapter 5 of Free Culture, Lawrence Lessig lays out anecdotes and archetypes of all manner of piracy.  The duplication of copyrighted CDs and DVDs in foreign markets is touched upon, but one of the main salient points is his defense of Peer-to-Peer file sharing networks, the groundbreaking networks and servers which made Section 512 absolutely necessary and the rulings on which still protect YouTube from harm.

    One of Lessig’s major talking points is his attribution of the four archetypal uses of P2P networking: stealing music, sampling music before buying, access to abandonware or other copyrighted content that is no longer available by traditional means, and those who search for content that has no copyright or a Creative Commons license and is meant to be shared.

    This is a highly utopian view of both P2P networking and the internet, but at the very least interesting to consider.  Lessig goes on to discuss drops in CD sales and later Jack Valenti’s ridiculous claims about VCRs as “tapeworms,” just waiting to drive the industry down.  If anything, the VCR and file-sharing networks both paved the way for the kind of content generation and also server networks that my final project will use and draw attention to.

    This letter shows how simply ludicrous copyright holders can be concerning their properties.  This letter was sent in 1996 to a Manuel J. Perez, who displayed on his MIT homepage an image including characters from the then-lucrative children’s series, Mighty Morphin’ Power Rangers.  The letter was sent by legal representatives of Saban Entertainment, Inc.

    I mention this letter because it displays a highly ridiculous side to the way that copyright holders will sometimes deal with new technologies, and specifically with internet culture.  Disregarding any quality of judgment, Saban sends a cease and desist order to a member of the world wide web who is certainly not, as they deem, practicing any “unfair competition.”

    In fact, at the very least all that Perez’s sit was doing was adding a very small amount of free advertising for the Power Rangers brand and intellectual property.  This is an oft-overlooked factor of the YouTube debate.  When a rogue parodist concocts a transformative trailer for The Shining, for instance, it has only a positive effect on our view of both Stanley Kubrick’s opus and even Peter Gabriel’s “Salisbury Hill.”

    Similarly, the media that I will sample could, upon a strike of popularity, only benefit all parties.

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.