OCTOBER TERM, 1993
Syllabus
CAMPBELL, AKA SKYYWALKER, ET AL.
V. ACUFFROSE MUSIC,
INC.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT
No. 92-1292. Argued November 9, 1993-Decided March 7,1994
Respondent Acuff-Rose Music, Inc., filed suit against
petitioners, the members of the rap music group 2 Live Crew and
their record company, claiming that 2 Live Crew's song, "Pretty
Woman," infringed AcuffRose's copyright in Roy Orbison's rock
ballad, "Oh, Pretty Woman." The District Court granted summary
judgment for 2 Live Crew, holding that its song was a parody that
made fair use of the original song. See Copyright Act of 1976, 17
U. S. C. § 107. The Court of Appeals reversed and remanded, holding
that the commercial nature of the parody rendered it presumptively
unfair under the first of four factors relevant under § 107; that,
by taking the "heart" of the original and making it the "heart" of
a new work, 2 Live Crew had, qualitatively, taken too much under
the third § 107 factor; and that market harm for purposes of the
fourth § 107 factor had been established by a presumption attaching
to commercial uses.
Held: 2 Live Crew's commercial parody may be a fair use
within the meaning of § 107. Pp. 574-594.
(a) Section 107, which provides that "the fair use of a
copyrighted work ... for purposes such as criticism [or] comment
... is not an infringement ... ," continues the common-law
tradition of fair use adjudication and requires case-by-case
analysis rather than bright-line rules. The statutory examples of
permissible uses provide only general guidance. The four statutory
factors are to be explored and weighed together in light of
copyright's purpose of promoting science and the arts. Pp.
574-578.
(b) Parody, like other comment and criticism, may claim fair
use.
Under the first of the four § 107 factors, "the purpose and
character of the use, including whether such use is of a commercial
nature ... ," the enquiry focuses on whether the new work merely
supersedes the objects of the original creation, or whether and to
what extent it is "transformative," altering the original with new
expression, meaning, or message. 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. The
heart of any parodist's claim to quote from existing material is
the use of some elements of a prior author's composition to
570
Syllabus
create a new one that, at least in part, comments on that
author's work. But that tells courts little about where to draw the
line. Thus, like other uses, parody has to work its way through the
relevant factors. Pp. 578-581.
(c) The Court of Appeals properly assumed that 2 Live Crew's
song contains parody commenting on and criticizing the original
work, but erred in giving virtually dispositive weight to the
commercial nature of that parody by way of a presumption,
ostensibly culled from
Sony Corp. of America v.
Universal
City Studios, Inc., 464 U. S. 417, 451, that
"every commercial use of copyrighted material is presumptively ...
unfair .... " The statute makes clear that a work's commercial
nature is only one element of the first factor enquiry into its
purpose and character, and
Sony itself called for no hard
evidentiary presumption. The Court of Appeals's rule runs counter
to
Sony and to the long commonlaw tradition of fair use
adjudication. Pp. 581-585.
(d) The second § 107 factor, "the nature of the copyrighted
work," is not much help in resolving this and other parody cases,
since parodies almost invariably copy publicly known, expressive
works, like the Orbison song here. P. 586.
(e) The Court of Appeals erred in holding that, as a matter of
law, 2 Live Crew copied excessively from the Orbison original under
the third § 107 factor, which 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 copying's
purpose. Even if 2 Live Crew's copying of the original's first line
of lyrics and characteristic opening bass riff may be said to go to
the original's "heart," that heart is what most readily conjures up
the song for parody, and it is the heart at which parody takes aim.
Moreover, 2 Live Crew thereafter departed markedly from the Orbison
lyrics and produced otherwise distinctive music. As to the lyrics,
the copying was not excessive in relation to the song's parodic
purpose. As to the music, this Court expresses no opinion whether
repetition of the bass riff is excessive copying, but remands 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. Pp.
586-589.
(f) The Court of Appeals erred in resolving the fourth § 107
factor, "the effect of the use upon the potential market for or
value of the copyrighted work," by presuming, in reliance on
Sony, supra, at 451, the likelihood of significant market
harm based on 2 Live Crew's use for commercial gain. 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. The cognizable harm is
market substitution, not any harm from criticism. As to parody
571
pure and simple, it is unlikely that the work will act as a
substitute for the original, since the two works usually serve
different market functions. The fourth factor requires courts also
to consider the potential market for derivative works. See,
e.
g., Harper &
Row, Publishers, Inc. v.
Nation
Enterprises, 471
U. S. 539, 568. If the later work has cognizable substitution
effects in protectible markets for derivative works, the law will
look beyond the criticism to the work's other elements. 2 Live
Crew's song comprises not only parody but also rap music. The
absence of evidence or affidavits addressing the effect of 2 Live
Crew's song on the derivative market for a nonparody, rap version
of "Oh, Pretty Woman" disentitled 2 Live Crew, as the proponent of
the affirmative defense of fair use, to summary judgment. Pp.
590-594.
972 F.2d
1429, reversed and remanded.
SOUTER, J., delivered the opinion for a unanimous Court.
KENNEDY, J., filed a concurring opinion,
post, p. 596.
Bruce S.
Rogow argued the cause for petitioners.
With him on the briefs was
Alan Mark Turk.
Sidney S.
Rosdeitcher argued the cause for
respondent.
With him on the brief were Peter L. Felcher and Stuart M.
Cobert. *
JUSTICE SOUTER delivered the opinion of the Court.
We are called upon to decide whether 2 Live Crew's commercial
parody of Roy Orbison's song, "Oh, Pretty Woman,"
*Briefs of
amici curiae urging reversal were filed for
the American Civil Liberties Union by
Steven F.
Reich,
Steven R. Shapiro, Marjorie Heins, and
John A. Powell;
for Capitol Steps Production, Inc., et al. by
William C.
Lane; for the Harvard Lampoon, Inc., by
Robert H.
Loeffler and
Jonathan Band; for the PEN American Center
by
Leon Friedman; and for Robert C. Berry et al. by
Alfred C.
Yen.
Briefs of
amici curiae urging affirmance were filed for
the National Music Publishers' Association, Inc., et al. by
Marvin E. Frankel and
Michael S.
Oberman; and
for Fred Ebb et al. by
Stephen Rackow Kaye, Charles S.
Sims, and
Jon A. Baumgarten.
Briefs of amici curiae were filed for Home Box Office et al. by
Daniel M. Waggoner, P. Cameron DeVore, George Vradenburg, Bonnie
Bogin, and Richard Cotton; and for Warner Bros. by Cary H. Sherman
and Robert Alan Garrett.
572
may be a fair use within the meaning of the Copyright Act of
1976, 17 U. S. C. § 107 (1988 ed. and Supp. IV). Although the
District Court granted summary judgment for 2 Live Crew, the Court
of Appeals reversed, holding the defense 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 enquiry, and that insufficient consideration
was given to the nature of parody in weighing the degree of
copying, we reverse and remand.
I
In 1964, Roy Orbison and William Dees wrote a rock ballad called
"Oh, Pretty Woman" and assigned their rights in it to respondent
Acuff-Rose Music, Inc. See Appendix A,
infra, at 594. Acuff-
Rose registered the song for copyright protection.
Petitioners Luther R. Campbell, Christopher Wongwon, Mark Ross,
and David Hobbs are collectively known as 2 Live Crew, a popular
rap music groUp.l 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 .... " App.
to Pet. for Cert. 80a. On July 5, 1989, 2 Live Crew's manager
informed Acuff-Rose that 2 Live Crew had written a parody of "Oh,
Pretty Woman," that they would afford all credit for ownership and
authorship of the original song to Acuff-Rose, Dees, and Orbison,
and that they were willing to pay a fee for the use they wished to
make of it. Enclosed with the letter were a copy of the lyrics and
a recording of 2 Live Crew's song. See Appendix B,
infra, at
595. Acuff- Rose's agent refused permission, stating that "I am
aware of the success
1 Rap has been defined as a "style of black American popular
music consisting of improvised rhymes performed to a rhythmic
accompaniment." The Norton/Grove Concise Encyclopedia of Music 613
(1988). 2 Live Crew plays "[b]ass music," a regional, hip-hop style
of rap from the Liberty City area of Miami, Florida. Brief for
Petitioners 34.
573
enjoyed by 'The 2 Live Crews', but I must inform you that we
cannot permit the use of a parody of 'Oh, Pretty Woman.'" App. to
Pet. for Cert. 85a. Nonetheless, in June or July 1989,22 Live Crew
released records, cassette tapes, and compact discs of "Pretty
Woman" in a collection of songs entitled "As Clean As They Wanna
Be." The albums and compact discs identify the authors of "Pretty
Woman" as Orbison and Dees and its publisher as Acuff-Rose.
Almost a year later, after nearly a quarter of a million copies
of the recording had been sold, Acuff-Rose sued 2 Live Crew and its
record company, Luke Skyywalker Records, for copyright
infringement. The District Court granted summary judgment for 2
Live Crew,3 reasoning that the commercial purpose of 2 Live Crew's
song was no bar to fair use; that 2 Live Crew's version was a
parody, which "quickly degenerates into a play on words,
substituting predictable lyrics with shocking ones" to show "how
bland and banal the Orbison song" is; that 2 Live 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 2 Live Crew's
song could adversely affect the market for the original." 754 F.
Supp. 1150, 1154-1155, 1157-1158 (MD Tenn. 1991). The District
Court weighed these factors and held that 2 Live Crew's song made
fair use of Orbison's original.
Id., at 1158-1159.
The Court of Appeals for the Sixth Circuit reversed and
remanded.
972 F.2d
1429, 1439 (1992). Although it assumed for the purpose of its
opinion that 2 Live Crew's song
2 The parties argue about the timing. 2 Live Crew contends that
the album was released on July 15, and the District Court so held.
754 F. Supp. 1150, 1152 (MD Tenn. 1991). The Court of Appeals
states that Campbell's affidavit puts the release date in June, and
chooses that date.
972 F.2d
1429, 1432
(CA6 1992). We find the timing of the request
irrelevant for purposes of this enquiry. See n. 18,
infra,
discussing good faith.
32 Live Crew's motion to dismiss was converted to a motion for
summary judgment. Acuff-Rose defended against the motion, but filed
no cross-motion.
574
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,"
Sony Corp. of America v.
Universal City Studios,
Inc., 464 U. S.
417, 451 (1984), 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. 972 F. 2d, at 1435, 1437. N ext, the Court of Appeals
determined that, by "taking the heart of the original and making it
the heart of a new work," 2 Live Crew had, qualitatively, taken too
much.
Id., at 1438. 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,"
Harper &
Row, Publishers, Inc. v.
Nation Enterprises, 471 U. S. 539, 566
(1985), the Court of Appeals faulted the District Court for
"refus[ing] to indulge the presumption" that "harm for purposes of
the fair use analysis has been established by the presumption
attaching to commercial uses." 972 F. 2d, at 1438-1439. In sum, the
court concluded that its "blatantly commercial purpose ... prevents
this parody from being a fair use."
Id., at 1439.
We granted certiorari, 507 U. S. 1003 (1993), to determine
whether 2 Live Crew's commercial parody could be a fair use.
II
It is uncontested here that 2 Live Crew's song would be an
infringement of Acuff-Rose's rights in "Oh, Pretty Woman," under
the Copyright Act of 1976, 17 U. S. C. § 106 (1988 ed. and Supp.
IV), but for a finding of fair use through parody.4
4 Section 106 provides in part:
"Subject to sections 107 through 120, the owner of copyright
under this title has the exclusive rights to do and to authorize
any of the following: "(1) to reproduce the copyrighted work in
copies or phonorecords;
"(2) to prepare derivative works based upon the copyrighted
work;
575
From the infancy of copyright protection, some opportunity for
fair use of copyrighted materials has been thought necessary to
fulfill copyright's very purpose, "[t]o promote the Progress of
Science and useful Arts .... " u. S. Const., Art. I, § 8, cl. 8.5
For as Justice Story explained, "[i]n 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). 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 copy-right, one must not put manacles upon science."
"(3) to distribute copies or phonorecords of the copyrighted
work to the public by sale or other transfer of ownership, or by
rental, lease, or lending .... "
A derivative work is defined as one "based upon one or more
preexisting works, such as a translation, musical arrangement,
dramatization, fictionalization, motion picture version, sound
recording, art reproduction, abridgment, condensation, or any other
form in which a work may be recast, transformed, or adapted. A work
consisting of editorial revisions, annotations, elaborations, or
other modifications which, as a whole, represent an original work
of authorship, is a 'derivative work.'" 17 U. S. C. § 101.
2 Live Crew concedes that it is not entitled to a compulsory
license under § 115 because its arrangement changes "the basic
melody or fundamental character" of the original. § 115(a)(2).
5 The exclusion of facts and ideas from copyright protection
serves that goal as well. See § 102(b) ("In no case does copyright
protection for an original work of authorship extend to any idea,
procedure, process, system, method of operation, concept,
principle, or discovery ... ");
Feist Publications, Inc. v.
Rural Telephone Service Co., 499 U. S. 340, 359 (1991)
("[F]acts contained in existing works may be freely copied");
Harper & Row, Publishers, Inc. v.
Nation Enterprises, 471 U. S. 539, 547 (1985)
(copyright owner's rights exclude facts and ideas, and fair
use).
576
Carey v.
Kearsley, 4 Esp. 168, 170, 170 Eng. Rep.
679, 681 (K. B. 1803). In copyright cases brought under the Statute
of Anne of 1710,6 English courts held that in some instances "fair
abridgements" would not infringe an author's rights, see W. Patry,
The Fair Use Privilege in Copyright Law 6-17 (1985) (hereinafter
Patry); Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105
(1990) (hereinafter Leval), and although the First Congress enacted
our initial copyright statute, Act of May 31, 1790, 1 Stat. 124,
without any explicit reference to "fair use," as it later came to
be known,7 the doctrine was recognized by the American courts
nonetheless.
In
Folsom v.
Marsh, 9 F. Cas. 342 (No. 4,901) (CCD
Mass. 1841), Justice Story distilled the essence of law and
methodology from the earlier cases: "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."
Id., at 348. Thus expressed, fair use remained
exclusively judge-made doctrine until the passage of the 1976
Copyright Act, in which Justice Story's summary is discernible:
8
"§ 107. Limitations on exclusive rights: Fair use
"Notwithstanding the provisions of sections 106 and 106A, the
fair use of a copyrighted work, including such use by reproduction
in copies or phonorecords or by any other means specified by that
section, for purposes such as criticism, comment, news reporting,
teaching (including multiple copies for classroom use),
scholarship, or research, is not an infringement of copyright. In
determining whether the use made of a work in any particular
6 An Act for the Encouragement of Learning, 8 Anne, ch. 19.
7Patry 27, citing
Lawrence v.
Dana, 15 F. Cas. 26,
60 (No. 8,136) (CCD Mass. 1869).
8 Levall105. For a historical account of the development of the
fair use doctrine, see Patry 1-64.
577
case is a fair use the factors to be considered shall
include-
"(1) the purpose and character of the use, including whether
such use is of a commercial nature or is for nonprofit educational
purposes;
"(2) the nature of the copyrighted work;
"(3) the amount and substantiality of the portion used in
relation to the copyrighted work as a whole; and
"(4) 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 of fair use if such finding is made upon consideration of
all the above factors." 17 U. S. C. § 107 (1988 ed. and Supp.
IV).
Congress meant § 107 "to restate the present judicial doctrine
of fair use, not to change, narrow, or enlarge it in any way" and
intended that courts continue the common-law tradition of fair use
adjudication. H. R. Rep. No. 94-1476, p. 66 (1976) (hereinafter
House Report); S. Rep. No. 94-473, p. 62 (1975) (hereinafter Senate
Report). 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."
Stewart v.
Abend, 495 U. S. 207, 236 (1990)
(internal quotation marks and citation omitted).
The task is not to be simplified with bright-line rules, for the
statute, like the doctrine it recognizes, calls for case-bycase
analysis.
Harper &
Row, 471 U. S., at 560;
Sony, 464 U. S., at 448, and n. 31; House Report, pp. 65-66;
Senate Report, p. 62. 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, § 101; see
Harper &
Row, supra, at 561, which thus provide
only general guidance about the sorts of copying that courts
and
578
Congress most commonly had found to be fair uses.9 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. See Leval 1110-1111; Patry &
Perlmutter, Fair Use Misconstrued: Profit, Presumptions, and
Parody, 11 Cardozo Arts & Ent. L. J. 667, 685-687 (1993)
(hereinafter Patry & Perlmutter ).10
A
The first factor in a fair use enquiry is "the purpose and
character of the use, including whether such use is of a commercial
nature or is for nonprofit educational purposes." § 107(1). This
factor draws on Justice Story's formulation, "the nature and
objects of the selections made."
Folsom v.
Marsh,
supra, at 348. The enquiry here may be guided by the examples
given in the preamble to § 107, looking to whether the use is for
criticism, or comment, or news report-
9 See Senate Report, p. 62 ("[W]hether a use referred to in the
first sentence of section 107 is a fair use in a particular case
will depend upon the application of the determinative
factors").
10 Because the fair use enquiry often requires close questions
of judgment as to the extent of permissible borrowing in cases
involving parodies (or other critical works), courts may also wish
to bear in mind that the goals of the copyright law, "to stimulate
the creation and publication of edifying matter," Leva11134, are
not always best served by automatically granting injunctive relief
when parodists are found to have gone beyond the bounds of fair
use. See 17 U. S. C. § 502(a) (court
"may ... grant ...
injunctions on such terms as it may deem reasonable to prevent or
restrain infringement") (emphasis added); Leval 1132 (while in the
"vast majority of cases, [an injunctive] remedy is justified
because most infringements are simple piracy," such cases are
"worlds apart from many of those raising reasonable contentions of
fair use" where "there may be a strong public interest in the
publication of the secondary work [and] the copyright owner's
interest may be adequately protected by an award of damages for
whatever infringement is found");
Abend v.
MeA, Inc.,
863 F.2d
1465,
1479 (CA9 1988) (finding "special circumstances"
that would cause "great injustice" to defendants and "public
injury" were injunction to issue), aff'd
sub nom. Stewart v.
Abend, 495 U.
S. 207 (1990).
579
ing, and the like, see § 107. The central purpose of this
investigation is to see, in Justice Story's words, whether the new
work merely "supersede[s] the objects" of the original creation,
Folsom v.
Marsh, supra, at 348; accord,
Harper
& Row, supra, at 562 ("supplanting" the
original), or instead adds 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." Levalll11. Although such
transformative use is not absolutely necessary for a finding of
fair use,
Sony, supra, at 455, n. 40,11 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's guarantee of breathing space
within the confines of copyright, see,
e. g., Sony, supra,
at 478-480 (BLACKMUN, J., dissenting), 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 of the
Court's equal division.
Benny v.
Loew's Inc.,
239 F.2d
532 (CA9 1956), aff'd
sub nom. Columbia Broadcasting System,
Inc. v.
Loew's Inc., 356 U. S. 43 (1958).
Suffice it to say now that parody has an obvious claim to
transformative value, as Acuff-Rose 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 § 107. See,
e. g., Fisher v.
Dees, 794 F.2d
432 (CA9 1986) ("When Sonny Sniffs Glue," a parody of "When
Sunny Gets Blue," is fair use);
Elsmere Music, Inc. v.
National Broadcasting Co., 482 F. Supp. 741
11 The obvious statutory exception to this focus on
transformative uses is the straight reproduction of multiple copies
for classroom distribution.
580
(SDNY), aff'd,
623 F.2d
252 (CA2 1980) ("I Love Sodom," a "Saturday Night Live"
television parody of "I Love New York," is fair use); see also
House Report, p. 65; Senate Report, p. 61 ("[U]se in a parody of
some of the content of the work parodied" may be fair use).
The germ of parody lies in the definition of the Greek
parodeia, quoted in Judge Nelson's Court of Appeals dissent,
as "a song sung alongside another." 972 F. 2d, at 1440, quoting 7
Encyclopedia Britannica 768 (15th ed. 1975). 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," 12 or as a "composition in prose or verse in
which the characteristic turns of thought and phrase in an author
or class of authors are imitated in such a way as to make them
appear ridiculous." 13 For the purposes of copyright law, the nub
of the definitions, and the heart of any parodist's claim to 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. See,
e. g., Fisher v.
Dees, supra, at 437;
MeA, Inc. v.
Wilson, 677 F.2d
180, 185 (CA2 1981). 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.14 Parody needs to
mimic
12 American Heritage Dictionary 1317 (3d ed. 1992). 1311 Oxford
English Dictionary 247 (2d ed. 1989).
14 A parody that more loosely targets an original than the
parody presented here may still be sufficiently aimed at an
original work to come within our analysis of parody. If a parody
whose wide dissemination in the market runs the risk of serving as
a substitute for the original or licensed derivatives (see
infra, at 590-594, discussing factor four), it is more
incumbent on one claiming fair use to establish the extent of
transformation and the parody's critical relationship to the
original. By con-
581
an original to make its point, and so has some claim to use the
creation of its victim's (or collective victims') imagination,
whereas satire can stand on its own two feet and so requires
justification for the very act of borrowing.15 See
ibid.;
Bisceglia, Parody and Copyright Protection: Turning the Balancing
Act Into a Juggling Act, in ASCAP, Copyright Law Symposium, No. 34,
p. 25 (1987).
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 mayor may not be fair use, and
petitioners' 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, see
Harper &
Row, 471 U. S., at 561. 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 nonparodic elements. Accordingly, parody, 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 2 Live Crew's "Pretty Woman" contains par-
trast, when there is little or no risk of market substitution,
whether because of the large extent of transformation of the
earlier work, the new work's minimal distribution in the market,
the small extent to which it borrows from an original, or other
factors, taking parodic aim at an original is a less critical
factor in the analysis, and looser forms of parody may be found to
be fair use, as may satire with lesser justification for the
borrowing than would otherwise be required.
15 Satire has been defined as a work "in which prevalent follies
or vices are assailed with ridicule," 14 Oxford English Dictionary,
supra, at 500, or are "attacked through irony, derision, or
wit," American Heritage Dictionary,
supra, at 1604.
582
ody, 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 2 Live Crew's song copy the original's first
line, but then "quickly degenerat[e] into a play on words,
substituting predictable lyrics with shocking ones ... [that]
derisively demonstrat[e] how bland and banal the Orbison song seems
to them." 754 F. Supp., at 1155 (footnote omitted). Judge Nelson,
dissenting below, came to the same conclusion, that the 2 Live Crew
song "was clearly intended to ridicule the white-bread original"
and "reminds us that sexual congress with nameless streetwalkers 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." 972 F. 2d, at 1442.
Although the majority below had difficulty discerning any criticism
of the original in 2 Live Crew's song, it assumed for purposes of
its opinion that there was some.
Id., at 1435-1436, and n.
8.
We have less difficulty in finding that critical element in 2
Live Crew's 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.16 Whether, going beyond that, parody is in good taste or
bad does not and should not matter to fair use. As Justice Holmes
explained, "[i]t would be a dangerous undertaking for persons
trained only to the law to constitute themselves final judges of
the worth of [a work], outside of the narrowest and most obvious
limits. At
16 The only further judgment, indeed, that a court may pass on a
work goes to an assessment of whether the parodic element is slight
or great, and the copying small or extensive in relation to the
parodic element, for a work with slight parodic element and
extensive copying will be more likely to merely "supersede the
objects" of the original. See
infra, at 586-594, discussing
factors three and four.
583
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."
Bleistein v.
Donaldson Lithographing
Co., 188 U. S.
239, 251 (1903) (circus posters have copyright protection); cf.
Yankee Publishing Inc. v.
News America Publishing,
Inc., 809 F. Supp. 267, 280 (SDNY 1992) (Leval, J.) ("First
Amendment protections do not apply only to those who speak clearly,
whose jokes are funny, and whose parodies succeed") (trademark
case).
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 a claim to fair use
protection as transformative works.17
The Court of Appeals, however, immediately cut short the enquiry
into 2 Live Crew's 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 osten-
17We note in passing that 2 Live Crew need not label their whole
album, or even this song, a parody in order to claim fair use
protection, nor should 2 Live Crew be penalized for this being its
first parodic essay. Parody serves its goals whether labeled or
not, and there is no reason to require parody to state the obvious
(or even the reasonably perceived). See Patry & Perlmutter
716-717.
584
sibly culled from
Sony, that "every commercial use of
copyrighted material is presumptively ... unfair .... "
Sony, 464 U. S., at 451. In giving virtually dispositive
weight to the commercial nature of the parody, the Court of Appeals
erred.
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 enquiry into its purpose and character. Section 107(1)
uses the term "including" to begin the dependent clause referring
to commercial use, and the main clause speaks of a broader
investigation into "purpose and character." As we explained in
Harper &
Row, Congress resisted attempts to
narrow the ambit of this traditional enquiry 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. 471 U. S., at 561; House Report, p. 66.
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 §
107, including news reporting, comment, criticism, teaching,
scholarship, and research, since these activities "are generally
conducted for profit in this country."
Harper &
Row,
supra, at 592 (Brennan, J., dissenting). 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 "[n]o man but a
blockhead ever wrote, except for money." 3 Boswell's Life of
Johnson 19 (G. Hill ed. 1934).
Sony itself called for no hard evidentiary
presumption.
There, we emphasized the need for a "sensitive balancing of
interests," 464 U. S., at 455, n. 40, noted that Congress had
"eschewed a rigid, bright-line approach to fair use,"
id.,
at
585
449, n. 31, and stated that the commercial or nonprofit
educational character of a work is "not conclusive,"
id., at
448-449, but rather a fact to be "weighed along with other[s] in
fair use decisions,"
id., at 449, n. 32 (quoting House
Report, p. 66). The Court of Appeals's 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 &
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." 471 U.
S., at 562. 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 enquiry than the sale of a parody for
its own sake, let alone one performed a single time by students in
school. See generally Patry & Perlmutter 679-680;
Fisher
v.
Dees, 794 F. 2d, at 437;
MaxtoneGraham v.
Burtchaell, 803 F.2d
1253, 1262 (CA2 1986);
Sega Enterprises Ltd. v.
Accolade, Inc., 977 F.2d
1510, 1522 (CA9 1992).18
18 Finally, regardless of the weight one might place on the
alleged infringer's state of mind, compare
Harper &
Row, 471 U. S., at 562 (fair use presupposes good faith and
fair dealing) (quotation marks omitted), with
Folsom v.
Marsh, 9 F. Cas. 342, 349 (No. 4,901) (CCD Mass. 1841) (good
faith does not bar a finding of infringement); LevaI1126-1127 (good
faith irrelevant to fair use analysis), we reject Acuff-Rose's
argument that 2 Live Crew's request for permission to use the
original should be weighed against a finding of fair use. Even if
good faith were central to fair use, 2 Live Crew's actions do not
necessarily suggest that they believed their version was not fair
use; the offer may simply have been made in a goodfaith effort to
avoid this litigation. If the use is otherwise fair, then no
permission need be sought or granted. Thus, being denied permission
to use a work does not weigh against a finding of fair use. See
Fisher v.
Dees, 794 F.2d
432, 437
(CA9 1986).
586
B
The second statutory factor, "the nature of the copyrighted
work," § 107(2), draws on Justice Story's expression, the "value of
the materials used."
Folsom v.
Marsh, 9 F. Cas., at
348. 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. See,
e. g., Stewart v.
Abend, 495 U. S., at 237-238 (contrasting fictional short
story with factual works);
Harper &
Row, 471 U.
S., at 563-564 (contrasting soon-to-be-published memoir with
published speech);
Sony, 464 U. S., at 455, n. 40
(contrasting motion pictures with news broadcasts);
Feist,
499 U. S., at 348-351 (contrasting creative works with bare factual
compilations); 3 M. Nimmer & D. Nimmer, Nimmer on Copyright §
13.05[A][2] (1993) (hereinafter Nimmer); Leval 1116. 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. 754 F.
Supp., at 1155-1156; 972 F.2d, at 1437. 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.
C
The third factor asks whether "the amount and substantiality of
the portion used in relation to the copyrighted work as a whole," §
107(3) (or, in Justice Story's words, "the quantity and value of
the materials used,"
Folsom v.
Marsh, supra, at 348)
are reasonable in relation to the purpose of the copying. Here,
attention turns to the persuasiveness of a parodist's justification
for the particular copying done, and the enquiry will harken 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
587
of the use. See
Sony, supra, at 449-450 (reproduction of
entire work "does not have its ordinary effect of militating
against a finding of fair use" as to home videotaping of television
programs);
Harper &
Row, supra, at 564 ("[E]ven
substantial quotations might qualify as fair use in a review of a
published work or a news account of a speech" but not in a scoop of
a soon-to-be-published memoir). 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. See Leval 1123.
The District Court considered the song's parodic purpose in
finding that 2 Live Crew had not helped themselves overmuch. 754 F.
Supp., at 1156-1157. The Court of Appeals disagreed, stating that
"[w]hile 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 purloin a substantial portion of the
essence of the originaL" 972 F. 2d, at 1438.
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 &
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. 471 U. S., at 564-566, 568 (internal
quotation marks omitted). We also agree with the Court of Appeals
that whether "a substantial portion of the infringing work was
copied verbatim" from the copyrighted work is a relevant question,
see
id., at 565, for it may reveal a dearth 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,
588
is more likely to be a merely superseding use, fulfilling demand
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 allusion
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. See,
e. g., Elsmere
Music, 623 F. 2d, at 253, n. 1;
Fisher v.
Dees,
794 F. 2d, at 438-439. What makes for this recognition is quotation
of the original's most distinctive 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 2
Live Crew's use unreasonable as a matter of law. It is true, of
course, that 2 Live Crew copied the characteristic opening bass
riff (or musical phrase) 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 most 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. H 2 Live
Crew had copied a significantly less memorable part of the
original, it is difficult to see how its parodic character
589
would have come through. See
Fisher v.
Dees,
supra, at 439.
This is not, of course, to say that anyone who calls himself a
parodist can skim the cream and get away scot free. In parody, as
in news reporting, see
Harper &
Row, supra,
context is everything, and the question of fairness asks what else
the parodist did besides go to the heart of the original. It is
significant that 2 Live Crew not only copied the first line of the
original, but thereafter departed markedly from the Orbison lyrics
for its own ends. 2 Live Crew not only copied the bass riff and
repeated it,19 but also produced otherwise distinctive sounds,
interposing "scraper" noise, overlaying the music with solos in
different keys, and altering the drum beat. See 754 F. Supp., at
1155. This is not a case, then, where "a substantial portion" of
the parody itself is composed of a "verbatim" copying 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," 972 F. 2d, at 1438, but just for that reason, we fail
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 bass
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.
19 This may serve to heighten the comic effect of the parody, as
one witness stated, App. 32a, Mfidavit of Oscar Brand; see also
Elsmere Music, Inc. v.
National Broadcasting Co., 482
F. Supp. 741, 747 (SDNY 1980) (repetition of "I Love Sodom"), or
serve to dazzle with the original's music, as Acuff-Rose now
contends.
590
D
The fourth fair use factor is "the effect of the use upon the
potential market for or value of the copyrighted work." § 107(4).
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 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. Nimmer § 13.05[A][ 4],
p. 13102.61 (footnote omitted); accord,
Harper &
Row, 471 U. S., at 569; Senate Report, p. 65;
Folsom
v.
Marsh, 9 F. Cas., at 349. The enquiry "must take account
not only of harm to the original but also of harm to the market for
derivative works."
Harper &
Row, supra, at
568.
Since fair use is an affirmative defense,2o its proponent would
have difficulty carrying the burden of demonstrating fair use
without favorable evidence about relevant markets.21 In moving for
summary judgment, 2 Live Crew left themselves at just such a
disadvantage when they failed to address the effect on the market
for rap 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
Ap-
20 Harper &
Row, 471 U. S., at 561; H. R. Rep.
No. 102-836, p. 3, n. 3 (1992).
21 Even favorable evidence, without more, is no guarantee of
fairness.
Judge Leval gives the example of the film producer's
appropriation of a composer's previously unknown song that turns
the song into a commercial success; the boon to the song does not
make the film's simple copying fair. Leva11124, n. 84. This factor,
no less than the other three, may be addressed only through a
"sensitive balancing of interests."
Sony Corp. of America v.
Universal City Studios, Inc., 464 U. S. 417, 455, n. 40
(1984). Market harm is a matter of degree, and the importance of
this factor will vary, not only with the amount of harm, but also
with the relative strength of the showing on the other factors.
591
peals quoted from language in
Sony that" '[i]f the
intended use is for commercial gain, that likelihood may be
presumed. But if it is for a noncommercial purpose, the likelihood
must be demonstrated.'" 972 F. 2d, at 1438, quoting
Sony,
464 U. S., at 451. The court reasoned that because "the use of
the copyrighted work is wholly commercial, ... we presume that a
likelihood of future harm to Acuff-Rose exists." 972 F. 2d, at
1438. In so doing, the court resolved the fourth factor against 2
Live Crew, just as it had the first, by applying a presumption
about the effect of commercial use, a presumption which as applied
here we hold to be 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
noncommercial context of
Sony itself (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 "supersede[s] the objects,"
Folsom v.
Marsh,
supra, at 348, of the original and serves as a market
replacement for it, making it likely that cognizable market harm to
the original will occur.
Sony, supra, at 451. 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 parody 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 ("supersed[ing] [its] objects"). See Leval 1125;
Patry & Perlmutter 692, 697-698. This is so because the parody
and the original usually serve different market functions.
Bisceglia, ASCAP, Copyright Law Symposium, No. 34, at 23.
We do not, of course, suggest that a parody may not harm the
market at all, but when a lethal parody, like a scathing
592
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 garroting the original, destroying it
commercially as well as artistically," B. Kaplan, An Unhurried View
of Copyright 69 (1967), the role of the courts is to distinguish
between "[b]iting criticism [that merely] suppresses demand [and]
copyright infringemente, which] usurps it."
Fisher v.
Dees, 794 F. 2d, at 438.
This distinction between potentially remediable displacement and
unremediable disparagement is reflected in the rule that there is
no protectible 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."
S. Maugham, Of Human Bondage 241 (Penguin ed. 1992). Thus, to the
extent that the opinion below may be read to have considered harm
to the market for parodies of "Oh, Pretty Woman," see 972 F. 2d, at
1439, the court erred. Accord,
Fisher v.
Dees, supra,
at 437; Leva11125; Patry & Perlmutter 688-691.22
In explaining why the law recognizes no derivative 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,"
supra, at 591). But the
later work may have a more complex character, with effects not only
in the arena of criticism but also in protectible 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. 2
Live Crew's song comprises not
22We express no opinion as to the derivative markets for works
using elements of an original as vehicles for satire or amusement,
making no comment on the original or criticism of it.
593
only parody but also rap music, and the derivative market for
rap music is a proper focus of enquiry, see
Harper &
Row, supra, at 568; Nimmer § 13.05[B]. Evidence of
substantial harm to it would weigh against a finding of fair use,23
because the licensing of derivatives is an important economic
incentive to the creation of originals. See 17 U. S. C. § 106(2)
(copyright owner has rights to derivative works). 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.24
Although 2 Live Crew submitted uncontroverted affidavits on the
question of market harm to the original, neither they, nor
Acuff-Rose, introduced evidence or affidavits addressing the likely
effect of 2 Live Crew's parodic rap song on the market for a
nonparody, rap version of "Oh, Pretty Woman." And while Acuff-Rose
would have us find evidence of a rap market in the very facts that
2 Live Crew recorded a rap parody of "Oh, Pretty Woman" and another
rap group sought a license to record a rap derivative, there was no
evidence that a potential rap market was harmed in any way by 2
Live Crew's parody, rap version. The fact that 2 Live Crew's parody
sold 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
23 See Nimmer § 13.05[A][ 4], p. 13-102.61 ("a substantially
adverse impact on the potential market"); Leval 1125 ("reasonably
substantial" harm); Patry & Perlmutter 697-698 (same).
24 In some cases it may be difficult to determine whence the
harm flows.
In such cases, the other fair use factors may provide some
indicia of the likely source of the harm. A work whose overriding
purpose and character is parodic and whose borrowing is slight in
relation to its parody will be far less likely to cause cognizable
harm than a work with little parodic content and much copying.
594
on this issue, observing that Acuff-Rose is free to record
"whatever version of the original it desires," 754 F. Supp., at
1158; 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 on fair use disentitled the
proponent of the defense, 2 Live Crew, to summary judgment. The
evidentiary hole will doubtless be plugged on remand.
III
It was error for the Court of Appeals to conclude that the
commercial nature of 2 Live Crew's parody of "Oh, 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 erred in holding that 2 Live 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.
APPENDIX A TO OPINION OF THE COURT
"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 Mercy
Pretty Woman, won't you pardon me, Pretty Woman, I couldn't help
but see,
595
Appendix B to opinion of the Court
Pretty Woman, that you look lovely as can be Are you lonely just
like me?
Pretty Woman, stop a while,
Pretty Woman, talk a while,
Pretty Woman give your smile to me Pretty Woman, yeah, yeah,
yeah Pretty Woman, look my way,
Pretty Woman, say you'll stay with me 'Cause I need you, I'll
treat you right Come to me baby, Be mine tonight
Pretty Woman, don't walk on by, Pretty Woman, don't make me cry,
Pretty Woman, don't walk away,
Hey, O. K.
If that's the way it must be, O. K.
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? Yeah, she's walking back to me! Oh,
Pretty Woman.
APPENDIX B TO OPINION OF THE COURT
"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 Big hairy woman you
know I bet it's tough Big hairy woman all that hair it ain't
legit
596
'Cause you look like 'Cousin It' Big hairy woman
Bald headed woman girl your hair won't grow Bald headed woman
you got a teeny weeny afro Bald headed woman you know your hair
could look
nice
Bald headed woman first you got to roll it with rice Bald headed
woman here, let me get this hunk of biz for ya
Ya know what I'm saying you look better than rice a roni
Oh bald headed woman
Big hairy woman come on in
And don't forget your bald headed friend Hey pretty woman let
the boys
Jump in
Two timin' woman girl you know you ain't right Two timin' woman
you's 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 Oh, two
timin' woman
Oh pretty woman
JUSTICE KENNEDY, concurring.
I agree that remand is appropriate and join the opinion of the
Court, with these further observations about the fair use analysis
of parody.
The common-law method instated by the fair use provision of the
copyright statute, 17 U. s. C. § 107 (1988 ed. and Supp. IV),
presumes that rules will emerge from the course of decisions. I
agree that certain general principles are now discernible to define
the fair use exception for parody. One of these rules, as the Court
observes, is that parody may qualify as fair use regardless of
whether it is published or per-
597
formed for profit.
Ante, at 591. Another is that parody
may qualify as fair use only if it draws upon the original
composition to make humorous or ironic commentary about that same
composition.
Ante, at 580. It is not enough that the parody
use the original in a humorous fashion, however creative that humor
may be. The parody must target the original, and not just its
general style, the genre of art to which it belongs, or society as
a whole (although if it targets the original, it may target those
features as well). See
Rogers v.
Koons,
960 F.2d
301, 310 (CA2 1992) ("[T]hough the satire need not be only of
the copied work and may ... also be a parody of modern society, the
copied work must be, at least in part, an object of the parody");
Fisher v.
Dees, 794 F.2d
432, 436 (CA9 1986) ("[A] humorous or satiric work deserves
protection under the fair-use doctrine only if the copied work is
at least partly the target of the work in question"). This
prerequisite confines fair use protection to works whose very
subject is the original composition and so necessitates some
borrowing from it. See
MeA, Inc. v.
Wilson,
677 F.2d
180, 185 (CA2 1981) ("[I]f the copyrighted song is not at least
in part an object of the parody, there is no need to conjure it
up"); Bisceglia, Parody and Copyright Protection: Turning the
Balancing Act Into a Juggling Act, in ASCAP, Copyright Law
Symposium, No. 34, pp. 23-29 (1987). It also protects works we have
reason to fear will not be licensed by copyright holders who wish
to shield their works from criticism. See
Fisher, supra, at
437 ("Selfesteem is seldom strong enough to permit the granting of
permission even in exchange for a reasonable fee"); Posner, When Is
Parody Fair Use?, 21 J. Legal Studies 67, 73 (1992) ("There is an
obstruction when the parodied work is a target of the parodist's
criticism, for it may be in the private interest of the copyright
owner, but not in the social interest, to suppress criticism of the
work") (emphasis deleted).
If we keep the definition of parody within these limits, we have
gone most of the way towards satisfying the four-factor
598
fair use test in § 107. The first factor (the purpose and
character of use) itself concerns the definition of parody. The
second factor (the nature of the copyrighted work) adds little to
the first, since "parodies almost invariably copy publicly known,
expressive works."
Ante, at 586. The third factor (the
amount and substantiality of the portion used in relation to the
whole) is likewise subsumed within the definition of parody. In
determining whether an alleged parody has taken too much, the
target of the parody is what gives content to the inquiry. Some
parodies, by their nature, require substantial copying. See
Elsmere Music, Inc. v.
National Broadcasting Co.,
623 F.2d
252 (CA2 1980) (holding that "I Love Sodom" skit on "Saturday
Night Live" is legitimate parody of the "I Love New York"
campaign). Other parodies, like Lewis Carroll's "You Are Old,
Father William," need only take parts of the original composition.
The third factor does reinforce the principle that courts should
not accord fair use protection to profiteers who do no more than
add a few silly words to someone else's song or place the
characters from a familiar work in novel or eccentric poses. See,
e. g., Walt Disney Productions v.
Air Pirates,
581 F.2d
751 (CA9 1978);
DC Comics Inc. v.
Unlimited Monkey
Business, Inc., 598 F. Supp. 110 (ND Ga. 1984). But, as I
believe the Court acknowledges,
ante, at 588-589, it is by
no means a test of mechanical application. In my view, it serves in
effect to ensure compliance with the targeting requirement.
As to the fourth factor (the effect of the use on the market for
the original), the Court acknowledges that it is legitimate for
parody to suppress demand for the original by its critical effect.
Ante, at 591-592. What it may not do is usurp demand by its
substitutive effect.
Ibid. It will be difficult, of course,
for courts to determine whether harm to the market results from a
parody's critical or substitutive effects. But again, if we keep
the definition of parody within appropriate bounds, this inquiry
may be of little significance. If a work targets another for
humorous or ironic effect, it is by defini-
599
tion a new creative work. Creative works can compete with other
creative works for the same market, even if their appeal is
overlapping. Factor four thus underscores the importance of
ensuring that the parody is in fact an independent creative work,
which is why the parody must "make some critical comment or
statement about the original work which reflects the original
perspective of the parodist-thereby giving the parody social value
beyond its entertainment function."
Metro-Goldwyn-Mayer,
Inc. v.
Showcase Atlanta Cooperative Productions, Inc.,
479 F. Supp. 351, 357 (ND Ga. 1979).
The fair use factors thus reinforce the importance of keeping
the definition of parody within proper limits. More than arguable
parodic content should be required to deem a would-be parody a fair
use. Fair use is an affirmative defense, so doubts about whether a
given use is fair should not be resolved in favor of the
self-proclaimed parodist. We should not make it easy for musicians
to exploit existing works and then later claim that their rendition
was a valuable commentary on the original. Almost any revamped
modern version of a familiar, composition can be construed as a
"comment on the naivete of the original,"
ante, at 583,
because of the difference in style and because it will be amusing
to hear how the old tune sounds in the new genre. Just the thought
of a rap version of Beethoven's Fifth Symphony or "Achy Breaky
Heart" is bound to make people smile. If we allow any weak
transformation to qualify as parody, however, we weaken the
protection of copyright. And underprotection of copyright disserves
the goals of copyright just as much as overprotection, by reducing
the financial incentive to create.
The Court decides it is "fair to say that 2 Live Crew's song
reasonably could be perceived as commenting on the original or
criticizing it, to some degree."
Ibid. (applying the first
fair use factor). While I am not so assured that 2 Live Crew's song
is a legitimate parody, the Court's treatment of
600
the remaining factors leaves room for the District Court to
determine on remand that the song is not a fair use. As future
courts apply our fair use analysis, they must take care to ensure
that not just any commercial takeoff is rationalized
post
hoc as a parody.
With these observations, I join the opinion of the Court.
601
The next page is purposely numbered 801. The numbers between 600
and 801 were intentionally omitted, in order to make it possible to
publish the orders with
permanent page numbers, thus making
the official citations available upon publication of the
preliminary prints of the United States Reports.
602
OCTOBER 4, 1993
Appeal Dismissed
No. 93-208. IDAHO HISPANIC CAUCUS, INC., ET AL.
V. IDAHO
ET AL. Appeal from D. C. Idaho dismissed for want of
jurisdiction.
Certiorari Granted-Vacated and Remanded
No. 92-1596. LIBERTY MORTGAGE CO.
V. FREY ET AL. C. A.
10th Cir. Certiorari granted, judgment vacated, and case remanded
for further consideration in light of
Nobelman v.
American Savings Bank, 508 U. S. 324 (1993).
Reported below: 982
No. 92-1826. TEXAS
V. PARRISH. Ct. Crim. App. Tex.
Certiorari granted, judgment vacated, and case remanded for further
consideration in light of
United States v.
Dixon,
509 U. S. 688
(1993). Reported below: 872 S. W. 2d 224.
No. 92-1968. BODIE
V. CITY OF HUNTSVILLE ET AL. C. A.
11th Cir. Certiorari granted, judgment vacated, and case remanded
for further consideration in light of
Leatherman v.
Tarrant County Narcotics Intelligence and Coordination Unit,
507
No. 92-8022. SAFFEELS
V. UNITED STATES. C. A. 8th
Cir.
Motion of petitioner for leave to proceed
in forma
pauperis granted. Certiorari granted, judgment vacated, and
case remanded for further consideration in light of
Stinson
v.
United States, 508 U. S. 36 (1993).
Reported below:
982 F.2d
1199.
No. 92-8439. RINCON
V. UNITED STATES. C. A. 9th Cir.
Motion of petitioner for leave to proceed
in forma
pauperis granted. Certiorari granted, judgment vacated, and
case remanded for further consideration in light of
Daubert
v.
Merrell Dow Pharmaceuticals, Inc., 509 U. S. 579 (1993).
Reported below:
984 F.2d
1003.
No. 92-8613. EVANS
V. UNITED STATES. C. A. 11th Cir.
Motion of petitioner for leave to proceed
in forma
pauperis 801
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