Finally, Fair Use

Campbell v. Acuff-Rose Music, Inc. is probably the seminal case for the modern application of the fair use doctrine. After years of neglect languishing in the back waters of intellectual property, the fair use doctrine received the spotlight from the Supreme Court in 1994. The lightning rod was 2 Live Crew (no stranger to Constitutional controversy) and their allegedly parodic use of the "Pretty Woman" song.

One of the critical factors that the court looked at was whether or not the 2 Live Crew version was likely to dilute the market for the original Orbison version. The court seemed to think that the buying audiences for each version were substantively different.

Do you think the following songs are targeted at different audiences?

2 Live Crew and
the Case of the Pretty Woman

In 1964, Roy Orbison and William Dees wrote a rock ballad called "Oh, Pretty Woman", about the same time that the Chiffons were swinging with "He's So Fine". In July of 1989, the rap group 2 Live Crew released the album "As Clean As They Wanna Be", containing a collection of their songs that don't contain the amount of profanity and obscenity normally associated with a 2 Live Crew album. One of these clean songs is "Pretty Woman". With this song, 2 Live Crew basically took the distinctive bass riff from the original Orbison song and changed the lyrics in true Crew style. Orbison and Dees are credited on the Crew album. Although the music is certainly identifiable as the original Orbison song, it is not unchanged. Also in true Crew style, the music contains interposed scraper noises, overlays of solos in different keys, and an altered drum beat.

Coincidentally, shortly after the 2 Live Crew version came out, the motion picture "Pretty Woman" was released. Interestingly, the soundtrack featured the Roy Orbison version of the song, but the movie took the 2 Live Crew version of the title. Consequently, the movie producers were required to license the Orbison version of the song, but since titles cannot be copyrighted, the producers would not be liable to either Orbison or 2 Live Crew for the use of the title "Pretty Woman" for the title of the movie.

Also of interest is the fact that the movie poster for the film itself became a source of sampling controversy. As may or may not be obvious from the picture in the header above, the face belongs to the star Julia Roberts, but the body belongs to a nameless body double. With the widespread use of Photoshop and other digital manipulators, photographs can longer be considered integrated unique works. In the above case, getting a release from Richard Gere and Julia Roberts may not be sufficient protection for commercial republication without the additional release from the body double.

The Case of Campbell
v. Acuff-Rose Music

In looking at 2 Live Crew's use of the "Pretty Woman" song, the Supreme Court successfully looked past the previous fair use decisions which basically stated that any commercial use was presumptively infringement.

"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 which was well known and used before."
Emerson v. Davies,8 F.Cas. 615, 619 (No. 4,436) (CCD Mass. 1845)

As notable for its appearance in fair use cases as for its use of commas, the opinion set forth in Emerson was used as an anchor by the court to the return to the original precepts of the framers of the Constitution.

"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 supercede the objects, of the original work."
Folsom v. Marsh, 9 F.Cas. 342, 348 (No. 4,901) (CCD Mass. 1841)

Most importantly, the court went back and gave full weight to each of the individual factors of the fair use test as promulgated in the Copyright Act of 1976. Instead of dismissing the Crew's claim on the basis that they had used the appropriated material for commercial gain, the court looked at the other factors of permissible fair use and determined that parody was indeed protected fair use, even though the perpetrators gained financially .