Campbell v. Acuff-Rose: Fair Use & Parody | Supreme Court

[00:00:01]Justice sudor delivered the opinion of the Court we are called upon to decide whether two live Crews commercial parody of Roy orbison's song oh pretty woman may be a fair use within the meaning of the Copyright Act of 1976 although the district court granted summary judgment for two life crew the court of appeals reversed holding the def sense of fair use barred by the song's commercial character and excessive borrowing because we hold that a parody's commercial character is only one element to be weighed in a fair use inquiry and that insufficient consideration was given to the nature of parody in weighing the degree of copying we reverse and remand part one in 1964 Roy Orbison and William de wrote a Rock ballad called oh pretty woman and assigned their rights in it to respondent AA fro music Incorporated AA fro registered the song for copyright protection petitioners Luther R Campbell Christopher wongan Mark Ross and David Hobbs are collectively known as two Live Crew a popular rap music group in 1989 Campbell wrote a song entitled Pretty Woman which he later described in an affidavit as intended through comical lyrics to satirize the original work on July 5th 1989 tlife crew's manager informed AA fro that two life crew had written a parody of O pretty woman that they would afford all credit for ownership and authorship of the original song to aao D's and Orbison and that they were willing to pay a fee for the use they wish to make of it enclosed with the letter were a copy of the lyrics and a recording of two life Crew song AA Rose's agent refused permission stating that quote I am aware of the success enjoyed by two Live Crew but I must inform you that we cannot permit the use of a parody of O Pretty Woman unquote nonetheless in June or July 1989 two life crew released records cassette tapes and compact discs of pretty woman in a collection of songs entitled as clean as they want to be the albums and compact discs identify the authors of Pretty Woman as Orbison and de and its publisher as AA fr almost a year later after nearly a quarter of a million copies of the recording had been sold AA fro sued two Live Crew and its record company Luke Skywalker records for copyright infringement The District Court granted summary judgment for two Live Crew reasoning that the commercial purpose of two life Crew song was no bar to fair use that two life crew crew version was a parody which quickly degenerates into a play on words substituting predictable lyrics with shocking ones to show how bland and benal the Orbison song is that two life crew had taken no more than was necessary to conjure up the original in order to parody it and that it was extremely unlikely that two live Crews song could adversely affect the market for the original The District Court weighed these factors and held that two life Crew song made fair use of orbison's original although it assumed for the purpose of its opinion that two life Crew song was a parody of the Orbison original the court of appeals thought the district court had put too little emphasis on the fact that every commercial use is presumptively unfair and it held that the admittedly commercial nature of the parody requires the conclusion that the first of four factors relevant under the statute weighs against a finding of fair use next the court of appeals determined that by taking the heart of the original and making it the heart of a new work two life crew had qualitatively taken too much finally after noting that the effect on the potential market for the original and the market for derivative works is undoubtedly the single most important element of fair use the court of appeals faulted the district court for refusing to indulge the presumption that harm for purposes of the fair use analysis has been established by the presumption attaching to commercial usage in some the court concluded that its blatantly commercial purpose prevents this parody from being a fair use we granted curari to determine whether two live Crews commercial parody could be a fair use part two it is uncontested here that two Live Crew song would be an infringement of AA Rose's rights in O prettywoman under the Copyright Act of 1976 but for a finding of fair use through parody from the infancy of copyright protection some opportunity for fair use of copyrighted materials has been thought necessary to fulfill copyright's very purpose to promote the progress of Science and useful arts for or as justice story explained in truth in literature in science and in art there are and can be few if any things which in an abstract sense are strictly new and original throughout every book in literature science and art borrows and must necessarily borrow and use much of which was well known and used before similarly Lord ellenborough expressed the inherent tension in the need simultaneously to protect copyrighted material and to allow others to build upon it when he wrote while I shall think myself bound to secure every man in the enjoyment of his copyright one must not put manacles upon science in copyright cases brought under the statute of an of 1710 English courts held that in some instances Fair abridgments would not infringe on author's rights and although the first Congress enacted our initial copyright statute without any explicit reference to fair use as it later came to be known the doctrine was recognized by the American courts nonetheless in fulsome the marsh justice story distilled the essence of Law and methodology from earlier cases quote look to the nature and objects of the selections made the quantity and value of the materials used and the degree in which the use May Prejudice the sale or diminish the profits or supersede the objects of the original work unquote thus expressed fair use remained exclusively judg made Doctrine until the passage of the 1976 Copyright Act in which Justice stories summary is discernible section 107 limitations on exclusive rights fair use not withstanding the provisions of sections 106 and 106a the fair use use of a copyrighted work including such use by reproduction in copies or phono records or by any other means specified by that section for purposes such as criticism comment news reporting teaching scholarship or research is not an infringement of copyright in determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include one the purpose and character of the use including whether such use is of a commercial nature or is for nonprofit educational purposes two the nature of the copyrighted work three the amount and substantiality of the portion used in relation to the copyrighted work as a whole and four the effect of the use upon the potential market for or value of the copyrighted work the fact that a work is unpublished shall not itself bar a finding a fair use if such finding is made upon consideration of all the above factors Congress meant section 107 to restate the present judicial doctrine of fairy use not to change narrow or enlarge it in any way and intended that courts continue the common law tradition of fair use adjudication the fair use Doctrine thus permits and requires courts to avoid rigid application of the copyright statute when on occasion it would stifle the very creativity which that law is designed to Foster the task is not to be simplified with bright line rules for the statute like the doctrine it recognizes calls for caseby case analysis the text employs the terms including and such as in the Preamble paragraph to indicate the illustrative and not limitative function of the examples given which thus provide only General guidance about the sorts of copying that courts and Congress most commonly had found to be fair uses nor May the four statutory factors be treated in isolation one from another all are to be explored and the results weighed together in light of the purposes of copyright section a the first factor in a fair use inquiry is the purpose in character of the use including whether such use is of a commercial nature or is for nonprofit educational purposes this Factor draws on Justice stories formulation the nature and objects of the selections made the inquiry here may be guided by the exam examples given in the Preamble to section 107 looking to whether the use is for criticism or comment or news reporting and the like the Central purpose of this investigation is to see Injustice stor words whether the new work merely supersedes the objects of the original creation or instead add something new with a further purpose or different character altering the First with new expression meaning or message it asks in other words whether and to what extent the new work is transformative although such transformative use is not absolutely necessary for a finding of fair use the goal of copyright to promote science and the Arts is generally furthered by the creation of transformative works such Works thus lie at the heart of the fair use Doctrine guarantee of breathing space within the confines of copyright and the more transformative the new work the less will be the significance of other factors like commercialism that may weigh against a finding of fair use this court has only once before even considered whether parody may be fair use and that time issued no opinion because the courts equal division suffice it to say now that parody has an obvious claim to transformative value as AA fro itself does not deny like less ostensibly humorous forms of criticism it can provide social benefit by shedding light on an earlier work and in the process creating a new one we thus line up with the courts that have held that parody like other comment or criticism may claim fair use under Section 107 The Germ of parody lies in the definition of the Greek paroda quoted in judge Nelson's court of appeals descent as a song sung alongside another modern dictionaries accordingly describe a parody As a literary or artistic work that imitates the characteristic style of an author or a work for Comic effect or ridicule or as a composition in Pros or verse in which the characteristic terms of thought and phrase in an author or class of authors are imitated in such a way as to make them appear ridiculous for the purposes of copyright law the nub of the definitions and the heart of any Paradis claimed quote from existing material 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 which the alleged infringer merely uses to get attention or to avoid the drudgery in working up something fresh the claim to fairness in borrowing from another's work diminishes accordingly if it does not vanish and other factors like the extent of its commerciality Loom larger parody needs to mimic an original to make its point and so has some claim to use the creation of its victims or Collective victims imagination whereas satire can stand on its own two feet and so requires justification for the very Act of borrowing the fact that parody can claim legitimacy for some appropriation does not of course tell either parodist or judge much about where to draw the line like a book review quoting the copyrighted material criticized parody may or may not be fair use and petitioner suggestion that any parodic use is presumptively fair has no more justification in law or fact than the equally hopeful claim that any use for news reporting should be presumed Fair the ACT has no hint of an evidentiary preference for parodists over their victims and no workable presumption for parody could take account of the fact that parody often Shades into satire when Society is lampooned through its creative artifacts or that a work may contain both parodic and nonp parodic elements accordingly parity like any other use has to work its way through the relevant factors and be judged Case by case in light of the ends of the copyright law here the District Court held and the court of appeals assumed that two live Crews Pretty Woman contains parody commenting on and criticizing the original work whatever it may have to say about Society at large as the district court remarked the words of two life Crews song copy the Original's first line but then quickly degenerate into a play on words substituting predictable lyrics with shocking ones that derisively demonstrate how bland and benal the Orbison song seems to them judge Nelson descenting below came to the same conclusion that the two Live Crew song was clearly intended to ridicule the whitebred original and reminds us that sexual congress with nameless Street Walkers is not necessarily the stuff of romance and is not necessarily without its consequences 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 although the majority Below had difficulty Discerning any criticism of the original in two life Crew song it assumed for purposes of its opinion that there was some we have less difficulty in finding that critical element in two life Crew song than the court of appeals did although having found it we will not take the further step of evaluating its quality the threshold question when fair use is raised in defense of parody is whether a parodic character May reasonably be perceived whether going beyond that parody is in good taste or bad does not and should not matter to fair use as Justice Holmes explained it would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the the worth of a work outside of the narrowest and most obvious limits at the one extreme some works of Genius would be sure to miss appreciation their very novelty would make them repulsive until the public had learned the new language in which their author spoke while we might not assign a high rank to the parodic element here we think it fair to say that two Live Crew song reasonably could be perceived as commenting on the original or criticizing it to some degree toli crew ju deposes the Romantic musings of a man whose fantasy comes true with degrading taunts a body demand for sex and a sigh of relief from pnal responsibility the later words can be taken as a comment on the naive 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 Joiner of reference and ridicule that marks off the author's choice of parody from the other types of comment and criticism that traditionally have a claim to fair use protection as transformative works the court of appeals however immediately cut short the inquiry into two life Crews fair use Claim by confining its treatment of the first Factor essentially to one relevant fact the commercial nature of the use the court then inflated the significance of this fact by applying a presumption ostensibly called from Sony that every commercial use of copyrighted material material is presumptively unfair in giving virtually dispositive weight to the commercial nature of the parody the court of appeals ER the language of the statute makes clear that the commercial or nonprofit educational purpose of a work is only one element of the first Factor inquiry into its purpose and character section 1071 uses the term including to begin the dependent clause referring to its commercial use and the main Clause speaks of a broader investigation into purpose and character as we explained in Harper and row Congress resisted attempts to narrow the Ambit of this traditional inquiry by adopting categories of presumptively fair use and it urged courts to preserve the breadth of their traditionally ample view of the universe of relevant evidence accordingly the mere fact that a use is educational and not for profit does not insulate it from a finding of infringement any more than the commercial character of a use bars a finding of fairness if indeed commerciality carried presumptive Force against a finding of fairness the presumption would swallow nearly all of the illustrative uses listed in the Preamble paragraph of section 107 including news reporting comment criticism teaching scholarship and research since these activities are generally conducted for profit in this country Congress could not have intended such a rule which certainly is not inferable from the common law cases arising as they did from the world of letters in which Samuel Johnson could pronounce that no man but a blockhead ever wrote except for money Sony itself called for no hard evidentiary presumption there we emphasized the need for a sensitive balancing of interests noted that Congress had issued a rigid bright line approach to Fair use and stated that the commercial or nonprofit educational character of a work is not conclusive but rather a fact to be weighed along with others in fair use decisions the court of appeals elevation of one sentence from Sony to a per se rule thus runs as much counter to Sony itself as to the long Common Law tradition of fair use adjudication rather as we explained in Harper and row Sony stands for the proposition that the fact that a publication was commercial as opposed to nonprofit is a separate factor that tends to weigh against a finding of fair use but that is all and the fact that even the force of that tendency will vary with the context is a further reason against elevating commerciality to hard presumptive significance the use for example of a copyrighted work to advertise a product even in a parody will be entitled to less Indulgence under the first factor of the fair use inquiry than the sale of a parody for its own sake let alone one performed a single time by students in school section B the second statutory Factor the nature of the copyrighted work draws on Justice stories expression the value of the materials used this Factor calls for recognition that some works are closer to the core of intended copyright protection than others with the consequence that fair use is more difficult to establish when the former works are copied we agree with both the district court and the court of appeals that the Orbison Original's creative expression for public dissemination Falls within the core of the copyright's protective purposes this fact however is not much help in this case or ever likely to help much in separating the fair use sheep from the infringing goats in a parody case since parodies almost invariably copy publicly known expressive works the third Factor asks whether the amount and substantiality of the portion used in relation to the copyrighted work as a whole are reasonable in relation to the purpose of the copying here attention turns to the persuasiveness of a paradus justification for the particular copying done and the inquiry will hearken back to the first of the statutory factors for as in Prior cases we recognize that the extent of permissible copying varies with the purpose and character of the use the facts bearing on this Factor will also tend to address the fourth by revealing the degree to which the parody may serve as a market substitute for the original or potentially licensed derivatives The District Court considered the song's parodic purpose in finding that two Live Crew had not helped themselves over much the court of appeals disagreed stating that while it may not be inappropriate to find that no more was taken than necessary the copying was qualitatively substantial we conclude that taking the heart of the original and making it the heart of a new work was to perin a substantial portion of the essence of the original the court of appeals is of course correct that this Factor calls for Thought not only about the quantity of the materials used but about their quality and importance too in Harper and row for example the nation had taken only some 300 words out of President Ford's Memoirs but we signaled the significance of the quotations in finding them to amount to the heart of the book the part most likely to be newsworthy and important in licensing serialization we also agree with the court of appeals that whether a substantial portion of the infringing work was copied btim from the copyrighted work is a relevant question for it may reveal a dir of transformative character or purpose under the first factor or a greater likelihood of Market harm under the fourth a work composed primarily of an original particularly its heart with little added or changed is more likely to be a merely superseding use fulfilling command for the original where we part company with the court below is in applying these guides to parody and in particular to parody in the song before us parody presents a difficult case parody's humor or in any event its comment necessarily Springs from recognizable illusion to its object through distorted imitation its art lies in the tension between a known original and its parodic twin When parody takes aim at a particular original work the parody must be able to conjure up at least enough of that original to make the object of its critical wit recognizable what makes for this recognition is quotation of the original's most distinct or memorable features which the parodist can be sure the audience will know once enough has been taken to assure identification how much more is reasonable will depend say on the extent to which the song's overriding purpose and character is to parody the original or in contrast the likelihood that the parody may serve as a market substitute for the original but using some characteristic features cannot be avoided we think the court of appeals was insufficiently appreciative of parody's need for the recognizable sight or sound when it ruled two live Crews use unreasonable as a matter of law it is true of course that two Live Crew copied the characteristic opening base Rift of the original and true that the words of the first line copy the Orbison lyrics but if quotation of the opening riff and the first line may be said to go to the heart of the original the heart is also what mostly readily conjures up the song for parody and it is the heart at which parody takes aim copying does not become excessive in relation to parodic purpose merely because the portion taken was the original's heart if two life crew had copied a significantly less memorable part of the original it is difficult to see how its parodic character would have come through this is not of course to say that anyone who calls himself a parodist can skim the cream and get away scottf free in parody as in news reporting context is everything and the question of fairness asks what else the paradis did besides go to the heart of the original it is significant that toli crew not only copied the first line of the original but thereafter departed marketly from the Orbison lyrics for its own ends tli crew not only copied the base riff and repeated it but also produced otherwise distinctive sounds interposing scraper noise overlaying the music with solos in different keys and altering the drum beat this is not a case then where a substantial portion of the parody itself is composed of a Verbatim copy of the original it is not that is a case where the parody is so insubstantial as compared to the copying that the third Factor must be resolved as a matter of law against the parodists suffice it to say here that as to the lyrics we think the court of appeals correctly suggested that no more was taken than necessary but just for that reason we failed to see how the copying can be excessive in relation to its parodic purpose even if the portion taken is the original's heart as to the music we express no opinion whether repetition of the Bas riff is excessive copying and we remand to permit evaluation of the amount taken in light of the song's parodic purpose and character its transformative elements and considerations of the potential for Market substitution sketched more fully below section D the fourth fair use factor is the effect of the use upon the potential market for or value of the copyrighted work it requires courts to consider not only the extent of Market harm caused by the particular actions of the alleged infringer but also whether unrestricted red and widespread conduct of the sort engaged in by the defendant would result in a substantially adverse impact on the potential market for the original the inquiry must take account not only of harm to the original but also of harm to the market for derivative Works since fair use is an affirmative defense its proponent would have difficulty carrying the burden of demonstrating fair use without favorable evidence about relevant markets in moving for summary judgment two Live Crew left themselves at just such a disadvantage when they failed to address the effect on the market for w derivatives and confined themselves to uncontroverted submissions that there was no likely effect on the market for the original they did not however thereby subject themselves to the evidentiary presumption applied by the court of appeals in assessing the likelihood of significant Market harm the court of appeals quoted from language in Sony that if the intended use is for commercial gain that likelihood may be presumed but if it is for a non on commercial purpose the likelihood must be demonstrated the court reasoned that because the use of the copyrighted work is wholly commercial we presume that a likelihood of future harm to AA fro exists in doing so the court resolved the fourth Factor against two life crew just as it had the first by applying a presumption about the effect of commercial use a presumption which as a applied here we hold to be in error no presumption or inference of Market harm that might find support in Sony is applicable to a case involving something Beyond mere duplication for commercial purposes Sony's discussion of a presumption contrasts a context of verbatim copying of the original in its entirety for commercial purposes with the non-commercial content text of Sony itself or home copying of Television programming in the former circumstances what Sony said simply makes common sense when a commercial use amounts to Mere duplication of the entirety of an original it clearly supersedes the objects of the original and serves as a market replacement for it making it likely that cognizable Market harm to the original will occur but when on the contrary the Second Use is transformative Market substitution is at least less certain and Market harm may not be so readily inferred indeed as to parity pure and simple it is more likely that the new work will not affect the market for the original in a way cognizable under this factor that is by acting as a substitute for it this is so because the parody and the original usually serve different Market functions we do not of course suggest that a parody may not harm the market at all but when a lethal parody like a scathing theater review kills demand for the original it does not produce a harm cognizable under the Copyright Act because parody May quite legitimately aim at gatting the original destroying it commercially as well as artistically the role of the courts is to distinguish between biting criticism that merely suppresses demand and copyright infringement which usurps it this distinction between potentially remediable displacement and un remediable disparagement is reflected in the rule that there is no protectable derivative market for criticism the market for potential derivative uses includes only those that creators of original Works would in general develop or license others to develop yet the unlikelihood that creators of imaginative Works will license critical reviews or Lampoons of their own Productions removes such uses from the very notion of a potential licensing Market people ask for criticism but they only want praise thus to the extent that the opinion below may be read to have considered harm to the market for parodies of oh pretty woman the court Ed in explaining why the law recognizes no deriv market for critical Works including parody we have of course been speaking of the later work as if it had nothing but a critical aspect I.E parody pure and simple but the later work may have a more complex character with effects not only in the arena of criticism but also in protectable markets for derivative works too in that sort of case the law looks beyond the criticism to the other elements of the work as it does here two life Crew song comprises Not only of parody but also rap music and the derivative market for rap music is a proper focus of inquiry evidence of substantial harm to it would weigh against a finding of fair use because the license in of derivatives is an important economic incentive to the creation of Originals of course the only harm to derivatives that need concern us as discussed above is the harm of Market substitution the fact that a parody May impair the market for derivative uses by the very effectiveness of its critical commentary is no more relevant under copyright than the like threat to the original Market although two Live Crew submitted uncontroverted affidavits on the question of Market harm to the original neither they nor AA fro introduced evidence or affidavits addressing the likely effect of two live Crews parodic rap song on the market for a nonp parody rap version of oh pretty woman and while AA froze would have us find evidence of a rrap market in the very facts that two Live Crew recorded a rap parody of O Pretty Woman and another rap group sought a license to record a rap derivative there was no evidence that a potential R Market was harmed in any way by two life Crews parody rap version the fact that two lifee Cru parody sold and as part of a collection of rap songs says very little about the parody's effect on a market for a rap version of the original either of the music alone or of the music with its lyrics The District Court essentially passed on this issue observing that AA Rose is free to record whatever version of the original it desires the the court of appeals went the other way by erroneous presumption contrary to each treatment it is impossible to deal with the fourth Factor except by recognizing that a silent record on an important factor bearing onfair use disentitled the proponent of the defense to Live Crew to summary judgment the evidentiary hole will doubtless be plugged on remand it was error for the court of appeals to conclude that the commercial nature of two life Crews parody of O Pretty Woman rendered it presumptively unfair no such evidentiary presumption is available to address either the first Factor the character and purpose of the use or the fourth Market harm in determining whether a transformative use such as parody is a fair one the court also Ed in holding that two life crew had necessarily copied excessively from the Orbison original considering the parodic purpose of the use we therefore reverse the Judgment of the court of appeals and remand the case for further proceedings consistent with this opinion it is so ordered we've come to the end of the opinion until next episode thanks for listening to what scotus wrot us