23 July, 2013

Retrospective - Parody and Fair Use

Imitation is the greatest form of flattery. A phrase that resonates even today, despite being written by Charles Colton as far as the early 1800s, yet where does one draw the line between mere imitation and copying of another's work? This line is often tread when dealing with parody and copyright, as distinguishing when a work is copied for the sake of utilizing it as a basis for humor, and when it is used as a means for personal gain or notoriety. The issue was brought back into the court's determination in 1994, after the Court of Appeals did not rule on the matter due to division within the bench in Benny v Loew's.

The case of Campbell v Acuff-Rose Music dealt with a song by 2 Live Crew, a rap group, titled "Pretty Woman" which was claimed to being parody of the iconic 1960s song "Oh Pretty Woman" by Roy Orbison. Prior to releasing the song the members of 2 Live Crew sought permission from the publisher of the original to release their version of the song, which was promptly refused by the publisher. Regardless of the denial for permission 2 Live Crew released the song as a part of their album in 1989, still identifying Mr. Orbison and Acuff-Rose in the materials provided with the album. After over 250,000 copies were sold of their new album almost a year later, Acuff-Rose sued the band and their publisher for copyright infringement. The case went all the way to the US Supreme Court after several years of litigation.

What the court had to assess was whether 2 Live Crew's use of the song fell under fair use. The vocal point of the matter was well condensed by the court: "...the need simultaneously to protect copyrighted material and to allow others to build upon it". In this the court had to look at the four factors relating to fair use: the purpose and character of the use; the nature of the copyrighted work; the amount used; and the effect the use had on the potential market value of the original work.

The purpose and character of a work is essentially determining whether the new work adds anything new or substantial to the original, with a further purpose or difference character by altering the first; often mentioned as a 'transformative' work. The more transformative the new work is, the less likely it is that other factors, such as commercialism in this instance, would weigh against in. The court accepted that parody is indeed a transformative function in the creation of new works, and that it could fall under fair use. 

2 Live Crew showcasing just how amazing the 1990s were
The second factor was the assessment of the nature of the original work, meaning whether the original should be protected by copyright. The less 'value' a song has, the more likely it is that the work has not been infringed should it be parodied. The court accepted that Mr. Orbison's original song had value to it and thus could be infringed by 2 Live Crew should their infringement be significant enough. However the court did express that the factor "...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 core of parody is the use of the original work as a means to deliver the humorous approach to the work itself. 

The third factor is one where the amount used, often referred to as substantiality, has to be looked at. Better expressed by Justice Story: "...the quantity and value of the materials used"; the quantity and quality of the material which was used in the creation of the parody. The court tried to approach the issue in recognizing its uniqueness to other instances of fair use: "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". The court laid down the foundations for a test to be used in future cases in determining instances of parody, where the original song should be recognizable in the parody, however not too much of the original can be copied. The court saw that 2 Live Crew had not taken a substantial amount of the song, having only used the recognizable bass riff from the beginning of the song and then creating something of their own through the rest of the song. Had they copied Mr. Orbison's song completely, both musically and lyrically, to a degree where it would be hard to distinguish the two, the copying could have been substantial.

Roy forgot he was indoors
The fourth and final factor is the potential impact on the original work's market. This effect has to be a negative one for there to be infringement, for example detracting from the sales of the original song or the image of the song through adverse conduct. The court did finally decide that 2 Live Crew's rap version of the song did not harm the market of the original, due to them belonging to completely different markets to begin with; the original to a more rock-oriented market, and the latter to a rap market. The court did however mention that a parody could potentially still cause harm to the original's market should the right circumstances befall it. A possible example of this is a similar song parodying another in a similar style, in this instance had 2 Live Crew made a rock version it could potentially cause harm. Any effects to that market would then count against finding the use as one that falls under fair use. 

Through Campbell v Acuff-Rose the court unanimously said that parody is a fully accepted form of fair use, should the actual copying of the work be done for a legitimate parody purpose. An artist cannot copy another's work merely in the guise of parodying the song, while still attempting to profit from the potential confusion as to the original song. As stated by Justice Kennedy in his separate opinion:

"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... 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".

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