Last week, a group of organizations including the Association of Research Libraries, EFF, and Public Knowledge celebrated â€œFair Use Week.â€
Campbell v. Acuff-Rose is the most recent Supreme Court decision on fair use. It is also a pivotalÂ one, adopting Judge Pierre Levalâ€™s â€œtransformative useâ€ 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) (â€œthe transformative use paradigm, as adopted in Campbell v. Acuff-Rose overwhelmingly drives fair use analysis in the courts todayâ€).
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 itÂ in 2014.
Having said all this, it remains startling that the comic incorrectly states the Courtâ€™s holding in Campbell.
Campbell began when rap group 2 Live Crew created the song â€œPretty Womanâ€, a bawdy take-off of Roy Orbisonâ€™s classic â€œOh, Pretty Woman.â€ They initially sought permission from Orbisonâ€™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 Courtâ€™s analysis, but completely misstates the Courtâ€™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.â€
According to the comic, â€œ2 Live Crewâ€™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.â€
Contrast this with what the Supreme Court actually said: â€œwe 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.â€
But this misstatement pales in comparison to getting the Courtâ€™s holding wrong. The comic concludes, â€œOverall, 2 Live Crewâ€™s use of Pretty Woman was found to be a transformative fair use.â€ But thatâ€™s not at all what the Supreme Court said. It instead reversed the Sixth Circuit’s decisionÂ and remanded the case to the district court â€œfor further proceedings consistent with [its] opinionâ€â€”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 Courtâ€™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, â€œThat means we will be getting paid for the song.â€
The above demonstrates the importance of care and accuracyÂ 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) (â€œthe transformative use paradigm, as adopted in Campbell v. Acuff-Rose overwhelmingly drives fair use analysis in the courts todayâ€).|