Last week, a group of organizations including the Association of Research Libraries, EFF, and Public Knowledge celebrated “Fair Use Week.”
Campbell v. Acuff-Rose is the most recent Supreme Court decision on fair use. It is also a pivotal one, adopting Judge Pierre Leval’s “transformative use” framing. 1Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105 (1990). Nowadays, this idea of transformativeness predominates fair use analysis. 2See Neil Weinstock Netanel, Making Sense of Fair Use, 15 Lewis & Clark Law Review 715, 734 (2011) (“the transformative use paradigm, as adopted in Campbell v. Acuff-Rose overwhelmingly drives fair use analysis in the courts today”).
One of the authors of the comic is Kyle Courtney, a copyright advisor at Harvard University. Courtney is also the originator of Fair Use Week, launching it in 2014.
Having said all this, it remains startling that the comic incorrectly states the Court’s holding in Campbell.
Campbell began when rap group 2 Live Crew created the song “Pretty Woman”, a bawdy take-off of Roy Orbison’s classic “Oh, Pretty Woman.” They initially sought permission from Orbison’s publisher, Acuff-Rose, but were denied. They released the song anyway, and Acuff-Rose sued.
2 Live Crew claimed the song was a parody, and thus a fair use, and the case went all the way up to the Supreme Court.
The comic walks through the Supreme Court’s analysis, but completely misstates the Court’s conclusion regarding the third fair use factor, which directs courts to look at “the amount and substantiality of the portion used in relation to the copyrighted work as a whole.”
According to the comic, “2 Live Crew’s copying of the original (e.g., the opening bass riff and first line of the Orbison song) was not deemed to be excessive to its purpose.”
Contrast this with what the Supreme Court actually said: “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.”
But this misstatement pales in comparison to getting the Court’s holding wrong. The comic concludes, “Overall, 2 Live Crew’s use of Pretty Woman was found to be a transformative fair use.” But that’s not at all what the Supreme Court said. It instead reversed the Sixth Circuit’s decision and remanded the case to the district court “for further proceedings consistent with [its] opinion”—that is, not ultimately deciding whether the use was fair or not.
If anything, the Court was leaning against fair use. Justice Kennedy filed a concurring opinion solely to express his doubts, saying
While I am not so assured that 2 Live Crew’s song is a legitimate parody, the Court’s treatment of 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.
In fact, the two parties settled following the Supreme Court’s decision, with 2 Live Crew agreeing to a license with Acuff-Rose. According to a contemporary news account, Acuff-Rose said of the settlement, “That means we will be getting paid for the song.”
The above demonstrates the importance of care and accuracy when reading cases, as well as the potential pitfalls of relying solely on secondary sources, even from experts.
|↑1||Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105 (1990).|
|↑2||See Neil Weinstock Netanel, Making Sense of Fair Use, 15 Lewis & Clark Law Review 715, 734 (2011) (“the transformative use paradigm, as adopted in Campbell v. Acuff-Rose overwhelmingly drives fair use analysis in the courts today”).|