Low Art, High Principle

I’m doing some reporting and research for a story on a website that ran afoul of a big copyright holder and federal copyright law. The crux of the tale is fair use: when is it legally defensible for an artist or commentator, say, to use the copyrighted work of another to create a new and distinct work. Specifically, the story I’m working on involves parody.

As it happens, the U.S. Supreme Court has spoken on this issue. To jog your (and my) memory, the case, Campbell v. Acuff-Rose Music, involved the rap group 2 Live Crew, which had borrowed elements of Roy Orbison’s “Pretty Woman” as part of a vulgar, mocking remake. The original song’s publisher sued, claiming copyright infringement. A federal district court bought the argument put forward by 2 Live Crew’s Luther R. Campbell (aka Luke Skyywalker), the remake’s author, that his work was a parody that deserved protection under the fair use exception to U.S. copyright law. An appeals court reversed the district court, and the case went to the Supremes.

Just for context, here’s a sample of the lyrics (quoting them here, as part of a commentary, is also an exercise of fair use, or so I’d argue if Campbell, aka Skyywalker, sued me; there’s a nice side-by-side comparison of the Orbison original and the Campbell parody here–unaccompanied by any copyright notices whatsoever):

Verse 1

[Pretty woman] Ha haaa, walkin’ down the street

[Pretty woman] Gir, girl, you look so sweet

[Pretty woman] You, you bring me down to the knees

[Pretty woman] You make me wanna beg please

[O-o-o-o-oh, pretty woman] …

Verse 4

[Two-timin’ woman] Girl, you know you ain’t right

[Two-timin’ woman] You was out with my boy last night

[Two-timin’ woman] That takes a load off my mind

[Two-timin’ woman] Now I know the baby ain’t mine

[O-o-o-o-oh, two-timin’ woman]

O-o-o-o-oh, pretty woman!

The court heard the case in November 1993 and delivered its opinion the following March. In a unanimous decision–that’s right: Antonin Scalia, Clarence Thomas, Ruth Ginsberg, David Souter, Anthony Kennedy, Wiilliam Rehnquist, Sandra Day O’Connor, John Paul Stevens, and Harry Blackmun, conservatives, liberals, middle-of-the-roaders all on the same side–the court found that 2 Live Crew’s work was protected under the fair use doctrine.

I was talking to my friend Pete about this yesterday, and I said that this is the kind of thing that makes me believe we live in a great country. This wasn’t a case of high art. In Souter’s opinion for the court, he drily notes that having found the Campbell’s song to qualify as a parody of the original, the justices will not take the further step of evaluating its quality.”

But it was a case of high principle, and as such, it was accorded the most serious consideration by the most august tribunal in the land.

“While we might not assign a high rank to the parodic element here, we think it fair to say that 2 Live Crew’s song reasonably could be perceived as commenting on the original or criticizing it, to some degree. 2 Live Crew juxtaposes the romantic musings of a man whose fantasy comes true, with degrading taunts, a bawdy demand for sex, and a sigh of relief from paternal responsibility. The later words can be taken as a comment on the naivete of the original of an earlier day, as a rejection of its sentiment that ignores the ugliness of street life and the debasement that it signifies. It is this joinder of reference and ridicule that marks off the author’s choice of parody from the other types of comment and criticism that traditionally have had aclaim to fair use protection as transformative works.”

The rest of the opinion is an evaluation of 2 Live Crew’s work against the four factors that must be weighed in determining fair use: the purpose of the work, whether it is commercial or not-for-profit and whether it has “transformative” value in commenting on or criticizing the original; the nature of the original work and whether it deserves copyright protection; the “amount and substantiality” of any copying and whether it appropriates the heart of the original work; and the likelihood that the new work may kill the market for the original work or foreclose new ones.

It’s an absorbing exercise. Go and read it. It’s well worth the time. And I guarantee it’s the only Supreme Court decision in which you’ll find the words, “Big hairy woman/all that hair it ain’t legit/Cause you look like `Cousin It’.”

Leave a Reply

Your email address will not be published. Required fields are marked *