The Supreme Court, ruling on a rap version of the rock classic Oh, Pretty Woman, has enhanced the ability of writers of parodies to exploit original songs.
For the first time, the justices clearly stated that parody can be exempted from copyright law.
The unanimous ruling Monday helps the rap group 2 Live Crew defend a copyright infringement claim and benefits Mark Russell, the Capitol Steps and other groups that make their living by setting their political criticism to well-known melodies.
Numerous such parodists, including the Harvard Lampoon and Mad Magazine, had joined with the American Civil Liberties Union and several television networks to submit "friend of the court" briefs urging the justices to side with 2 Live Crew against Acuff-Rose Music. Acuff-Rose holds the copyright to the late Roy Orbison's Oh, Pretty Woman.
The National Music Publishers' Association, and numerous songwriters, including Michael Jackson and Dolly Parton, supported Acuff-Rose.
"This is a great ruling," said William C. Lane, lawyer for the Capitol Steps. The court rejected the argument that commercial parodists should have to seek permission from copyright holders to use their songs. "It's hard to get permission because nobody likes to be made fun of," he said.
By definition, a parody imitates an original work for comic effect or ridicule.
The justices unanimously rejected a lower court opinion that said judges should assume commercial parodies are an unfair use of materials under federal copyright law. For the first time, the court stated clearly that parody, like other comment or criticism, could be considered "fair use."
While the court said a lower court erred in finding that 2 Live Crew copied excessively from the Orbison original, it did not decide whether 2 Live Crew's bawdy sendup of the popular 1964 song completely met the "fair use" exception to copyright law.
It returned the case to lower courts to decide whether the copyright held by Acuff-Rose Music of Nashville was breached.
Overall, the opinion written for the court by Justice David Souter generously views the purposes of parody, saying that judges who hear copyright lawsuits should avoid rigid rules that would stifle creativity.
While federal law generally gives creators of songs and other works exclusive rights to the work, the law provides a "fair use" exception for "criticism, comment, news reporting, teaching, scholarship or research." Lower federal courts already had said comment and criticism could include parody.
The case of Campbell vs. Acuff-Rose Music began in 1989 when Luther Campbell, lead singer and songwriter of 2 Live Crew, wrote a rap version of Orbison's song and called it, Pretty Woman. The new version had the same drum beat as the original and the familiar bass riff.
The best summation of the two songs comes from a lower-court judge who first heard the case: In the original: "A lonely man with a strangely nasal voice seeks a pretty woman (name unknown) walking down the street. The man speculates on whether the woman is lonely too. Apostrophizing her in his mind, he urges her to stop and talk and give him a smile and say she will stay with him and be his that night. The woman walks on by, and the man resigns himself to going home alone. Before he leaves, however, he sees the woman walking back to him. End of story."
In the parody: "The singers (there are several) have the same thing on their minds as did the lonely man with the nasal voice, but here there is no hint of wine and roses. The 2 Live Crew singers _ randy misogynists, not lonely Sir Lancelots _ raucously address a "big, hairy woman' and her "baldheaded friend,' one or both of whom are urged to "let the boys jump in.'
That 2 Live Crew song was included on a collection entitled As Clean As They Wanna Be and sold about a quarter-million copies in the first year. Acuff-Rose, which had told 2 Live Crew it would not agree to the parody, sued for copyright infringement.
The district court judge ruled for 2 Live Crew, saying that the parody met the criteria for a fair use of Orbison's original. It described the 2 Live Crew version as a song that "quickly degenerates into a play on words, substituting predictable lyrics with shocking ones" to show "how bland and banal the Orbison song" is.
The U.S. Court of Appeals for the 6th Circuit reversed the judgment, holding that the commercial nature of the parody weighs against a conclusion of "fair use." The appeals court also said 2 Live Crew had used too much of the original to be fair and hurt the market for the original.
Alan Mark Turk, lawyer for the rappers, noted that the court's rejection of an anti-commercialism presumption and its finding that the rap group did not excessively copy the original, gives 2 Live Crew a new advantage: "We had stopped printing the song" during the court proceedings, Turk said. "It will probably be back on the market soon."
Excerpts of the lyrics of Roy Orbison's 1964 song Oh, Pretty Woman and 2 Live Crew's takeoff Pretty Woman:
Oh, Pretty Woman
by Roy Orbison
and William Dees:
Pretty woman, walking down the street,
Pretty woman, the kind I like to meet,
Pretty woman, I don't believe you, you're not the truth,
No one could look as good as you ...
Pretty woman, don't walk on by,
Pretty woman, don't make me cry,
Pretty woman, don't walk away,
Hey, it's okay
If that's the way it must be, okay
I guess I'll go on home, it's late,
There'll be tomorrow night, but wait!
What do I see
Is she walking back to me!
Oh, pretty woman
as recorded by 2 Live Crew:
Pretty woman, walkin' down the street
Pretty woman girl you look so sweet
Pretty woman you bring me down to that knee
Pretty woman you make me wanna beg please
Oh, pretty woman
Big hairy woman you need to shave that stuff
Bog hairy woman you know I bet it's tough
Big hairy woman all that hair ain't legit
"Cause you look like "Cousin It.'