Running head: CAMPBELL V. ACUFF-ROSE MUSIC, INC.

Case Study on 1994’s Campbell v. Acuff-Rose Music, Inc. on Fair Use (Parody Law)

Alexandre Autran

Vesalius College

Author Note

Case Study for LAW211 – Advanced Business Law (Professor Stephanie Gardner)

15 November 2017
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Introduction

2 Live Crew were a Miamian hip-hop band, known for its sexual and explicit music that

caused a lot of controversy in the late 80s after releasing an album called As Nasty As They

Wanna Be. Problems with the nature of the album went to the extent of some states trying

to ban them and even two of their members being arrested under charges of obscenity after

the group performed in a club.

Due to the polemics involving their career, the band soon released a new purified

version of their album, called As Clean As They Wanna Be. The catch was that the group

had included a new song to the setlist of this album (not present on the first version) which

was a parody on Roy Orbison’s Oh, Pretty Woman entitled similarly as just Pretty Woman.

One year after the death of the song’s original composer, the band offered royalties

and songwriting credits to the publishing company who owned the copyrights of the song,

Acuff-Rose Music, to which their legal team answered: “I am aware of the success enjoyed

by the ‘2 Live Crew’, but I must inform you that we cannot permit the use of a parody of

‘Oh, Pretty Woman.” (Jennings, 1997).

The case started when the group, even after having their request denied by the other

party, decided to release the song on the album anyway, for one year and a quarter million

albums sold later get sued by Acuff-Rose for copyright infringement. 2 Live Crew had a

favorable decision in the lower court with the argument of fair use that was later upheld by

the Sixth Circuit, ruling that the commercial use of the work implied that it wasn’t fair use

due to its commercial purposes.

The case ended up in the Supreme Court, where the question was if parodies and

parodists were entitled to the rights of fair use or not.

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Discussion

Artistic work is a delicate subject, as it is one of the most subjective based topics of

discussion in any field of research. The aspects that constitute creativity and its palpability

can be a matter of endless speculation, especially when it comes to music, where many

factors contribute to the creation of the final piece of work: each instrument’s composition,

lyrics, melody, harmony that are all based on 7 notes, 12 pitches and silence with the

addition of words into it. With so many variants, how to determine what belongs to who in

each song released has been the object of diverse conflicts around the world.

With the objective of aiding and creating a framework for the settlement of such

conflicts, music is included in the copyright law spectrum, that works as a protective

measure to creators from exploitation of their work. In the case, the music and its

components are considered as a product, and it cannot be used, reproduced or sold without

a permission, payment or any other arrangement between the holder of the rights and the

user of the product. But such a protection can be extremely restrictive and create an

environment under the control of the rights detainer, where he could suppress any unwanted

use of the product for their own interests.

Aiming to advocate freedom of speech and expression, the copyright law has a

section entitled fair use, that allows the use of copyrighted material according to special

circumstances, such as criticism, comment, research, news reporting and other.

Before parody were considered on the field of fair use, the point was to identify and

classify a parody, where the concept adopted by the courts were that parodies should be

comedic in its nature, but it should also exhibit some criticism to the original work. Metro-

Goldwyn-Mayer v. Showcase Atlanta Cooperative Productions, Inc. asserted that a parody

CAMPBELL V. ACUFF-ROSE MUSIC, INC. 4

of Gone With the Wind was not in fact a parody as it failed to criticize the original movie.

The courts believed that in order to constitute a parody and protect the freedom of

expression, the work should be criticized by its parody or otherwise that would imply the

lack of reason to do a parody in the first place. Utterly different from the fair use concept,

one suggested definition for parody was that "parody is a discrete work or passage that,

through imitation, focuses attention on both the style and the substance of a source text and

that uses comic techniques, such as exaggeration and incongruity, to criticize the source

text" (Babiskin, 1994). The first time a parody was claimed to be fair use, in 1958, the court

ruled against the parodist, saying that there was an infringement on the copyright law. After

diverse courts contradicting its own definitions, this case settled the criterion for similar

cases.

2 Live Crew’s lawyers were since the beginning arguing for fair use, even winning

its case on the lower court, that said that the commercial nature of the parody did not

constitute unfair use of the original song, that they "appropriated no more from the original

than necessary to accomplish reasonably its parodic purpose" (Piele, 1997) and that no

commercial harm was caused to the detainer of rights for that song. This was later reversed

by the Sixth Circuit with the allegation that considering the four factors, it did not constitute

fair use due to its commercial nature.

The group was claiming that their work was a parody and that it was a critic on the

original song, not only they had comedic lyrics, as they changed the reticent words of the

song’ for bolder ones, but their use of the same bass line and melody and a similar title

triggered the law counsel of the copyrights detainer, who claimed that the parody’s

commercial purposes and its ease to identify and relate to the original were an infringement
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to the rights of the song, as the group had made a very similar opening and just twitched

lyrics from that point on, thus the parody had all the work that involves creative music

creation copied to their song, in consequence, the company should be entitled to the credits

of the song.

Before going further with their court claims, it is important to understand the four

factors that are taken into consideration by judges when evaluating fair use:

1. Purpose and character of the use, including whether the use is of a

commercial nature or is for nonprofit educational purposes;

2. Nature of the copyrighted work;

3. Amount and substantiality of the portion used in relation to the

copyrighted work as a whole and

4. Effect of the use upon the potential market for or value of the

copyrighted work.

The first factor identifies the nature of the work, and what were the intents of the

party that claimed fair use, and balance them with possible consideration gained by them.

The primary concern is to identify these aspects, and to determine whether the work has a

‘new appeal’ to it, in other words, if it is blatantly copying the original, or if it has a new

approach to it. The importance of determining this beforehand continuing the analysis, is

that if it’s shown that the new work differentiates enough from the original, then the

commercial character of the parody can be disconsidered from the analysis. But the Court

also asserted that the nature of the parody must be easily perceived by the audience, thus

its criticism, commentary or satire must be predominant over the mere reutilization of the

song structure.
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The second factor tries to identify how the party exercised its own expressions

through creative differentiation, or opinion given at the work.

The third factor is also very subjective, as its objective is to identify how much of

the original work were ‘exploited’ by the party that claims fair use, but it is relative to the

situation of the work, the amount that a parody can “borrow” from the original depends on

the real objective of the parody, where just a small cut considered fundamental used can

already be classified as infringement, what the courts watch over is not the size of what

was copied, but the substance of it.

The last factor is a measure of how the new work can influence the market of the

original by damaging or even replacing it in the industry.

By listening to the original song and the parody, we can analyze each of these

factors on the case. And although the parody had commercial intents, breaking the first

factor, which were the claims of the plaintiffs, it is not the only one taken into consideration,

and we can see that all the other factors are respected in the parody, it uses little of the

original, as only the initial riff and a small part of the lyrics are used, and the song itself by

its completely different rhythm, genre and lyrics were not presenting a threat to the market

of the original song, and to complete it, the arguments of the group were that their intent

were to criticize the original song, by expressing their opinions and making use of bolder

lyrics.

Campbell’s lawyers argued that the use of such characteristics were not a copy of

the song, as the whole climate of it was changed by its inherent change in genre and lyrics.

The song no longer expressed the same message.

The twist in the case were the considerations of the court, creating a new legal
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concept called “transformative fair use”, a theory derived from a law review article written

by Judge Pierre N. Laval in 1990. They stated, “the goal of copyright, to promote science

and the arts, is generally furthered by the creation of transformative works” (Halpern, Nard

and Port, 2006).

According to Babiskin, the court, based on the four factors, remarked that 2 Live

Crews’ song was actually a comment on Roy Orbinson’s, and that the group gave a new

meaning to the song, transmitting a new message based on their origins and culture. They

said that since the work done by 2 Live Crew were a parody, the creativeness protected on

the original were not important when analyzed for fair use. When referring to the third

factor, the court stated that the use of the riff and part of the lyrics happened due to do the

objective of being a “recognizable allusion to its object through distorted imitation”. They

took in consideration the amount of work that the hip-hop group took into overriding the

original substantiality of the song, thus characterizing it as just a parody, other than a

replacement for the original song, that said, the use of the riff and part of the lyrics was

unreasonable and didn’t take place as the core of the song, or of fundamental importance

to the song, hence the parody was inserted in this new transformative concept, the court

differed from the sixth circuit on the matter of how necessary was the amount copied from

the original, the court said that “the parody must be able to 'conjure up' at least enough of

that original to make the object of its critical wit recognizable”.

All of that accounted for the decision that both songs had different targets and

purposes, thus its commercial factor shouldn’t have been considered by the sixth circuit as

harmful to the market of the original. Since both shared little resemblance other than the

identifiable characteristics, the parody could not substitute the original, as they had
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different market functions.

The case and court decision set the precedent for the current cases involving

parodies in the US. Parodies are the most famous type of comedic music around the world,

and having such a big case deciding in favor of the parodists left the door open for the

whole industry that have moved billions ever since the court decision.

The new concept of transformative fair use allowed for a change in the whole

system and not only on the musical industry, but diverse cases have been won by parodists

against major companies ever since the precedent was set from baseball cards to Barbie

dolls, the more detailed and relative analysis that “transformative fair use” over a

mechanical analysis caused in the judicial system was so big, that of today, it is considered

the minimum standard requirement to be in fact a parody and avoid trademark or copyright

issues.
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Conclusion

The dispute has been resolved with the court deciding in favor of the hip-hop band,

with the court asserting that 2 Live Crew’s song was in fact a parody and consisted in

transformative fair use, while setting the precedent when stating that transformative is

something that “adds something new, with a further purpose or different character, altering

the first with new expression, meaning or message” (Heymann, 2008).

This is today one of the most important aspects of copyright law, and opened space

for thousands or even millions of artists to exercise their creativity and create new and

exciting work for the whole society to enjoy and is the basis to some of the most iconic

projects in present times, such as Saturday Night Live, a TV show that relies highly on

parodies that wouldn’t be possible before this decision even took place.

Personally, as a musician myself, I think that the decision taken was the best for the

good of people, creators and artists. Although I think that copyright should be more

enforced, it is not by censoring or cutting creative spaces that the own industry can develop

and grow together, but to encourage these practices. In fact, parodies are used to develop

diverse areas of knowledge, from rational thinking, through creativity even into language

and writing. It is one of the most complete ways of introducing people on the works of

developing artistic intelligence.

Parodies created an industry so big, that two Brazilian musicians created a whole

system to teach school content to kids with learning disabilities that grew to help teachers

and professors all around the country to create new class dynamics that can be used even

by adults.

If it weren’t for this case, the freedom of expression would be suppressed by

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institutional reasons, and would hurt the first amendment, as parodists and artists wouldn’t

be able to express their minds over other works without being exposed to control and

censorship by corporate giants.

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References

Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994). Retrieved from

https://supreme.justia.com/cases/federal/us/510/569/.

Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994). U.S. Copyright Office Fair Use

Index. Retrieved from http://copyright.gov/fair-use/index.html.

Jennings, Marianne M. (1997). Business: Its Legal, Ethical, and Global Environment. (8th

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MUSIC, INC.", Harvard Journal of Law & Technology, Vol. 8 Issue: 1, pp. 193-223

Piele, Kathryn D. (1997). “Three Years after Campbell v. Acuff-Rose Music, Inc.: What Is

Fair Game for Parodists?", Loyola of Los Angeles Entertainment Law Review, Vol.

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Myers, Gary (1996). “Trademark Parody: Lessons From the Copyright Decision in

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edition). Kluwer Law International.

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Beebe, Barton (2008). "An Empirical Study of U.S. Copyright Fair Use Opinions, 1978-

2005", University of Pennsylvania Law Review, Vol. 156 Issue: 3, pp. 549-624

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