Ishkur’s Guide to Electronic Music has long recognized by fans of electronic music for its comprehensive and irreverent descriptions of the numerous and protean sub-genres of the musical form. Kenneth John Taylor, the author of Ishkur’s Guide, makes this observation about Miami bass:
Every few years, like clockwork, a Miami Bass track will come out of nowhere and get REALLY big on the Top40 charts. It happened with Tag Team’s “Whoomp there it is”. It happened with 69 Boyz’ “Tootsee Roll”. And it happened (unfortunately) again with Baha Men’s “Who Let the Dogs Out.” For such a fun genre, I’m still trying to figure out why this happens with only a select few songs, and not all of them. Like, for instance, why did Tag Team’s “Whoomp! There it is” make it big and not 95 South’s “Woot! There it is”, when they are practically the same song?
One of the Miami bass groups that did get really big on the charts was 2 Live Crew — the group had seven studio albums that entered the Billboard 200 during the 80’s and 90’s. Sometimes called the “godfathers” of Miami bass,1 the Crew was also notorious for writing lyrics that, to say the least, would make a sailor blush.
In 1989, the group released their third album, As Nasty as They Want to Be. At the same time, a “sanitized” version of the album, As Clean as They Want to Be, was released.2 In a curious stroke of circumstance, both of these albums resulted in the band going to court, but for entirely different reasons.
Prurient Interests and Parody
As Nasty as They Want to Be was almost immediately criticized for its objectionable lyrics. Several record store employees in various parts of the country were even arrested for selling the album to minors. 2 Live Crew fought back in Broward County, Florida, in response to actions taken by the Sheriff’s Department to discourage sale of the album.
The ensuing case made its way to the 11th Circuit Court of Appeals, which had to determine whether the album was considered “obscene” under the test laid out by the Supreme Court in Miller v. California.3 Under the Miller test, obscenity is determined by asking “(a) whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest … ; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” In Luke Records v. Navarro, noting that this was “apparently the first time that a court of appeals has been asked to apply the Miller test to a musical composition,” the 11th Circuit concluded that, since there was no evidence presented that the work lacked “serious artistic value,” the album was not obscene.4
Just eight days after the 11th Circuit’s decision in Luke Records was handed down, 2 Live Crew’s lawyers were in front of the 6th Circuit for oral arguments in a separate case.
Along with cleaned-up versions of songs, As Clean as They Want to Be included the song “Pretty Woman”, not present on As Nasty as They Want to Be. The song was a raunchy take on Roy Orbison’s rock ballad, “Oh, Pretty Woman.” Music publisher Acuff-Rose Music had denied 2 Live Crew a license to parody the song; 2 Live Crew recorded and released it anyway, and Acuff-Rose sued for copyright infringement.
The 6th Circuit reversed the District Court’s holding that 2 Live Crew’s version of the song was a fair use,5 and the decision was appealed to the Supreme Court. In one of copyright’s seminal decisions, the Supreme Court reversed the 6th Circuit and held that 2 Live Crew’s parody was a fair use, despite its commercial nature and the amount of expression borrowed from the original.6
As the Court pointed out in Campbell, fair use often serves the same function of copyright protection itself — to promote the progress of the useful arts. Twenty years earlier, a different court had noted that “the development of ‘fair use’ has been influenced by some tension between the direct aim of the copyright privilege to grant the owner a right from which he can reap financial benefit and the more fundamental purpose of the protection ‘To promote the Progress of Science and the useful Arts.'”7 This promotion of the progress, said the Court in Campbell, is “generally furthered by the creation of transformative works” — works that include parody, which “can provide social benefit, by shedding light on an earlier work, and, in the process, creating a new one.”
Had either case gone the other way, we would have had some interesting results. 2 Live Crew’s music could have been found to be both lacking “serious literary, artistic, political, or scientific value” yet promoting the progress of the useful arts, or vice versa.
Content Industries’ Defense of Free Speech
While 2 Live Crew’s coinciding legal battles involving free expression and copyright are interesting trivia, they lead me to a broader point about connections between the two issues. Copyright is sometimes criticized as stifling creativity — yet 2 Live Crew’s success at the Supreme Court shows otherwise. And if we dig deeper into the Crew’s obscenity case, we can begin to see, perhaps, that copyright law even played some part in the favorable outcome for the group there.
In the past decade or so, there has been increasing academic interest in the relationship between the First Amendment and copyright law.8 Additionally, as content industries look for more effective methods of addressing online piracy, critics have ratcheted up their attempts to equate copyright protection with censorship.9
But what’s often ignored is the contributions of content industries to the protection and expansion of first amendment rights.
Artistic expression, political dissidence, and religious heterodoxy form a sort of free speech triumvirate that has been the target of content regulation most frequently by most societies throughout history. I previously discussed the proclivity for regulating creativity in Artistic Expression, the First Amendment, and Copyright. As the RIAA states, “The history of our nation’s music is also a history of those who would censor that creative expression, afraid of what it explores and exposes.” For a closer look at how pop music in particular has been targeted, check out The History of Banned Rock ‘n’ Roll by blogger Nikkieg23, which includes such anecdotes as this one from 1955: “Police in Bridgeport, Connecticut cancel a dance at the Ritz ballroom featuring Fats Domino. Authorities say the cancellation is because they discovered that ‘rock and roll dances might be featured'”.
2 Live Crew’s brush with obscenity resulted in a flood of academic attention.10 But the tension between ‘obscene’ music and the law had been increasing for some time before the 11th Circuit’s decision.
In 1985, the Parents Music Resource Center (PMRC) was formed to confront what was seen as a problem with pop music lyrics that were sexually suggestive or glorified violence. The Center’s founding members included several wives of politicians, including Tipper Gore, so it was able to quickly gain traction in Washington. Its goal was to pressure the music industry into taking a number of steps to prevent children from being exposed to explicit music, though some of the Center’s husbands wanted the government to step in.
Senator Hollings, whose wife was affiliated with the PMRC, said at a Senate Committee hearing on Contents of Music and the Lyrics of Records, “I will be looking from the Senator’s standpoint, not just to bring pressures to try to see if there is some constitutional provisions to tax, but an approach that can be used by the Congress to limit this outrageous filth, suggestive violence, suicide, and everything else in the Lord’s world that you would not think of. Certainly the writers and framers of our first amendment never perhaps heard this music in their time, never considered the broadcast airwaves and certainly that being piped into people’s homes willy nilly over the air.”
The RIAA strenuously opposed the PMRC’s efforts. It did agree to place warning labels on records with explicit content after initially resisting the idea, but refused the other steps suggested by the Center, seeing them as an affront to its members’ expressive integrity. In a letter to the PMRC, the RIAA said, “the music industry refuses to take the first step toward a censorship mode to create a master bank of ‘good/bad’ words or phrases or thoughts or concepts”.
The parental advisory labels adopted by the RIAA were inspired in part by the movie rating system which the MPAA uses.
Since practically the beginning of the movie industry, the medium was subject to censorship. By the 1920’s, encouraged in part by a Supreme Court decision that the First Amendment did not protect motion pictures,11 numerous states and local governments had censorship boards — administrative bodies whose job was to determine what individuals were allowed to see. But as the film industry grew in size and importance, it began to make moves against the outright censorship of motion pictures.
The forerunner of today’s MPAA, the Motion Pictures Producers and Distributors Association, was formed in 1922 as an industry trade and lobbying organization. It began self-regulating the content of its members, fearing that censorship might make it to the federal level. From 1930 until 1968, the Motion Picture Production Code (commonly referred to as the “Hays Code” when it began) set guidelines for film studios about what type of content was appropriate. It was eventually replaced by the movie ratings system that we’re familiar with today, a voluntary system that describes rather than proscribes the content of films.
Attitudes about the legitimacy of motion pictures as expression also changed during this time. The Supreme Court went from considering films as “spectacles”, not a “part of the press of the country” or an “[organ] of public opinion”, as stated in Mutual Film Corporation, to having “no doubt that moving pictures, like newspapers and radio, are included in the press whose freedom is guaranteed by the First Amendment” in 1948.12 In 1952, the Supreme Court overturned the holding in Mutual Film Corp. and recognized that the First Amendment extends to motion pictures.13 The Court declared a number of movie censorship laws unconstitutional in the years that followed.14
Today, content industry groups like the MPAA and RIAA continue to work toward protecting the free expression rights of their mediums and members. For just one example, see the MPAA’s brief, joined by other trade groups and unions, in Schwarzenegger v. Entertainment Merchants Association, currently before the Supreme Court, arguing that California’s prohibition on the sale of violent video games to minors is unconstitutional.
Copyright’s Role in Protecting Rights
It’s fair to say that creators of all stripes today in the US are more free to express themselves than in decades past. Audiences too can access a wider range of ideas because of this freedom — making their own choices of what to experience rather than having those choices made for them.
And as discussed above, industry groups and trade organizations have undoubtedly played some role in the expansion of that freedom. That they have should not come as a surprise. True, they are motivated largely by self-interest. A company engaged in producing and distributing content wants the broadest latitude of what is acceptable content in a society as possible. Government limits on that latitude, like obscenity laws, increase the risks and costs of the company — either subjecting the company to liability after publication or increasing the time and money spent on ensuring compliance before publication. But self-interest is not a bad thing, as Adam Smith pointed out over 200 years ago.15 And when self-interest coincides with expanding fundamental freedoms for everyone, that’s certainly a good thing.
It also seems evident that the expansion of these rights would not have been as quick or effective absent these groups. Groups have bigger influence than individuals on policy, especially when the interests at stake are diffuse, as is the case with freedom of speech.
Most importantly, however, is the fact that the existence of content industries, and the fact that they have been able to grow and develop to such an extent, owes a great deal to the existence of copyright. The law provides a stable rights system that has encouraged the development of industries devoted solely to the creation of content for content’s sake. The amount of investment in the creative industries would be greatly diminished absent such a system.
Copyright’s role in protecting free speech rights is just one of the values it has for society. It is just one of the reasons why, despite the challenges of the law posed by digital technology and the internet, copyright should continue to serve as the framework for producing and distributing creative works rather than be discarded or hamstrung.
It’s unlikely that James Madison had this concept in mind when he talked about the Copyright Clause of the Constitution in the Federalist Papers, but his words are just as applicable. When it comes to copyright, “The public good fully coincides … with the claims of individuals.”16
- John Leland, Singles column, Spin Magazine, pg 76 (February 1989). [↩]
- I’m relying primarily on Mathieu Deflem’s Rap, Rock, and Censorship: Popular Culture and the Technologies of Justice, Paper presented at the annual meeting of the Law and Society Association, Chicago, May 27-30, 1993, for details about 2 Live Crew and the Parents Music Resource Center in the discussion that follows. [↩]
- 413 US 15 (1973). [↩]
- 960 F.3d 134 (1992). [↩]
- Acuff-Rose Music v. Campbell, 972 F.2d 1429 (1992). [↩]
- Campbell v. Acuff-Rose Music, 510 US 569 (1994). [↩]
- Williams & Wilkins Company v. U.S., 487 F.2d 1345, 1352 (Ct. of Claims 1973). [↩]
- I previously listed a number of articles on this subject in Copyright and Censorship, see especially footnotes 15, 16, and 17. [↩]
- See, for example, ICE Seizures Criticism: Magic Words for examples of the criticism surrounding the seizure of domain names as property facilitating copyright infringement. [↩]
- See Deflem’s article linked above. [↩]
- Mutual Film Corporation v. Industrial Commission of Ohio, 236 US 230 (1916). [↩]
- US v. Paramount Pictures, 334 US 131, 166. [↩]
- Joseph Burstyn v. Wilson, 343 US 495. [↩]
- See Superior Films v. Department of Education of Ohio, 346 US 587 (1954); Kingsley Int’l Pictures v. Regents of the Univ of NY, 360 US 684 (1959); Freedman v. Maryland, 380 US 51 (1965); Interstate Circuit v. Dallas, 390 US 676 (1968). [↩]
- “It is not from the benevolence of the butcher the brewer, or the baker that we expect our dinner, but from their regard to their own interest.” An Inquiry Into the Nature and Causes of the Wealth of Nations (1776). [↩]
- Federalist No. 43. [↩]