Campbell v.
Acuff-Rose Music (Short title)
510 U.S. 569 | March 7, 1994
Petitioners: CAMPBELL, aka SKYYWALKER, et al.
Respondent: ACUFF ROSE MUSIC, INC.
DOCTRINE
A parody's commercial character is only one element to be weighed in a fair use inquiry,
and consideration should also be given to the nature of the parody in weighing the
degree of copying.
FACTS
- 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 Acuff Rose's copyright in Roy
Orbison's rock ballad, "Oh Pretty Woman."
District Court: GRANTED summary judgment for 2 Live Crew, holding that its song
was a parody that made fair use of the original song.
CA: 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.
Hence, this petition.
ISSUE/S
1. W/N 2 Live Crew's commercial parody may be a fair use within the meaning of
§107.
RULING & RATIO
1.
- YES
- Section 107, which provides that "the fair use of a copyrighted work . . .
for purposes such as criticism [or] comment . . . is not an infringement.”
- 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.
- Parody, like other comment and criticism, may claim fair use. Under the first
of the four §107 factors,
o "the purpose and character of the use, including whether such use is
of a commercial nature . . . ,
o " 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,"
o 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.
- In Sony Corp. of America v. Universal City Studios, Inc,
o "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,
- 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.
o Moreover, 2 Live Crew thereafter departed markedly from the
Orbison lyrics and produced otherwise distinctive music.
o As to the lyrics, the copying was not excessive in relation to the
song's parodic purpose.
o As to the music, this Court expresses no opinion whether repetition
of the bass riff is excessive copying
- 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.
- As to parody 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.
DISPOSITION
Reversed and Remanded.
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 3.
NOTES: 4 FACTOR TEST OF FAIR USE.
 Factor Test for Fair Use:
1. "Purpose and character of the use, including whether such use
is of a commercial nature or is for nonprofit educational
purposes."
 Elements:
 Guided by the examples in Sec. 107.
 Central purpose is to see whether the new work
merely "supersedes the objects" of the original
creation, or adds something new.
 Does this new creation have a further purpose or
different character than the original with a new
meaning or message? Is it transformative?
 Parody has an obvious claim to transformative
value.
 For purposes of copyright law, the heart
of the parody's value is that it comments
on the old work.
 Shouldn't be using the original work just
to gain attention or to avoid having to
come up with something new.
 Needs to mimic an original to make its
point (unlike satire).
 Application to this case:
 There are clearly elements of criticism in D's song;
4.
whether it is in good or bad taste is not up to the
courts to decide.
 Commercial use is only one element, and is not
determinative.
2. "Nature of the copyrighted work"
 Elements:
 "Value of the material used."
 Calls for recognition that some works are closer to
the core of intended copyright protection than
others, and thus fair use is more difficult to
establish.
 Application to this case:
 Orbison's original creative expression does fall in
this category, but it is not very helpful here
because parody's. in order to serve their function,
must copy publicly known, expressive works.
Are "the amount and substantiality of the portion used in
relation to the copyrighted work as a whole" reasonable in
relation to the purpose of the copying?
 Elements:
 Consider the persuasiveness of a parodist's
justification for the particular copying done.
 Similar to the first factor.
 Degree to which the parody might serve as a
market substitute for the original.
 Quality of what was taken from the original, rather
than just quantity, is considered, as well as
whether a substantial portion was copied
verbatim.
 Application to this case:
 While it is true that 2 Live Crew copied the opening
riff of the song as well as the first line of words, it
is essential to the nature of parody that the parody
copy some recognizable portion of the song.
 Copying does not become excessive just because
the "heart" of the work was copied. However,
context is everything. It is significant that Ds
immediately departed from the lyrics after the first
line, as well as the fact that they incorporated other
sounds into the music.
 No more was taken then necessary in relation to
the song's parodic purposes.
"The effect of the use upon the potential market for or value of
the copyrighted work."
 Elements:
 Extent of market harm
 "Whether unrestricted and widespread conduct of
the sort engaged in by the D would result in a
substantially adverse impact on the potential
market" for the original (aggregate).
 Must take into account harm to original but also
harm to the market for derivative works.
 Take into account transformative use vs.
duplication.
 Ex: A parody and the original use usually
serve different market functions.
 Also, if a parody's legitimate purpose is to
criticize the original, market harm might
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 result, but this is fair market harm (cf.
Keebil)
 Application to this case:
 COA appeals applied the presumption about the
effect of commercial use, which is in error.
 When the second use is transformative, as in this
case, market harm may not be readily inferred, as
it could with a duplication of the entirety of the
original.
 Difficult to discern the parody's effect on a market
for a rap version of the original. Evidentiary issue.

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