CAPITAL PUNISHMENT: HISTORY

[ Footnote 1 ] Rap has been defined as a "style of black American popular music consisting of improvised rhymes performed to a rhythmic accompaniment." The Norton/Grove Concise Encyclopedia of Music 613 (1988). 2 Live Crew plays "[b]ass music," a regional, hip-hop style of rap from the Liberty City area of Miami, Florida. Brief for Petitioners 34.

[ Footnote 2 ] The parties argue about the timing. 2 Live Crew contends that the album was released on July 15, and the District Court so held. 754 F.Supp. 1150, 1152 (MD Tenn. 1991). The Court of Appeals states that Campbell's affidavit puts the release date in June, and chooses that date. 972 F.2d 1429, 1432 (CA6 1992). We find the timing of the request irrelevant for purposes of this enquiry. See n. 18, infra, discussing good faith.

[ Footnote 3 ] 2 Live Crew's motion to dismiss was converted to a motion for summary judgment. Acuff-Rose defended against the motion, but filed no cross-motion.

[ Footnote 4 ] Section 106 provides in part:

"Subject to sections 107 through 120, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

"(1) to reproduce the copyrighted work in copies or phonorecords;

"(2) to prepare derivative works based upon the copyrighted work;

"(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending...."

A derivative work is defined as one "based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a "derivative work." 17 U.S.C. 101.

2 Live Crew concedes that it is not entitled to a compulsory [ CAMPBELL v. ACUFF-ROSE MUSIC, INC., ___ U.S. ___ (1994), 5] license under 115 because its arrangement changes "the basic melody or fundamental character" of the original. 115(a)(2).

[ Footnote 5 ] The exclusion of facts and ideas from copyright protection serves that goal as well. See 102(b) ("In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery... "); Feist Publications v. Rural Telephone Service Co., 499 U.S. 340, 359 (1991) ("[F]acts contained in existing works may be freely copied"); Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 547(1985) (copyright owner's rights exclude facts and ideas, and fair use).

[ Footnote 6 ] An Act for the Encouragement of Learning, 8 Anne, ch. 19.

[ Footnote 7 ] Patry 27, citing Lawrence v. Dana, 15 F.Cas. 26, 60 (No. 8,136) (CCD Mass. 1869).

[ Footnote 8 ] Leval 1105. For a historical account of the development of the fair use doctrine, see Patry 1-64.

[ Footnote 9 ] See Senate Report, p. 62 ("[W]hether a use referred to in the first sentence of section 107 is a fair use in a particular case will depend upon the application of the determinative factors").

[ Footnote 10 ] Because the fair use enquiry often requires close questions of judgment as to the extent of permissible borrowing in cases involving parodies (or other critical works), courts may also wish to bear in mind that the goals of the copyright law, "to stimulate the creation and publication of edifying matter," Leval 1134, are not always best served by automatically granting injunctive relief when parodists are found to have gone beyond the bounds of fair use. See 17 U.S.C. 502(a) (court "may... grant... injunctions on such terms as it may deem reasonable to prevent or restrain infringement") (emphasis added); Leval 1132 (while in the "vast majority of cases, [an injunctive] remedy is justified because most infringements are simple piracy," such cases are "worlds apart from many of those raising reasonable contentions of fair use" where "there may be a strong public interest in the publication of the secondary work [and] the copyright owner's interest may be adequately protected by an award of damages for whatever infringement is found"); Abend v. MCA, Inc., 863 F.2d 1465, 1479 (CA9 1988) (finding "special circumstances" that would cause "great injustice" to defendants and "public injury" were injunction to issue), aff'd sub nom. Stewart v. Abend, 495 U.S. 207 (1990).

[ Footnote 11 ] The obvious statutory exception to this focus on transformative uses is the straight reproduction of multiple copies for classroom distribution.

[ Footnote 12 ] The American Heritage Dictionary 1317 (3d ed. 1992).

[ Footnote 13 ] 11 The Oxford English Dictionary 247 (2d ed. 1989).

[ Footnote 14 ] A parody that more loosely targets an original than the parody presented here may still be sufficiently aimed at an original work to [ CAMPBELL v. ACUFF-ROSE MUSIC, INC., ___ U.S. ___ (1994), 11] come within our analysis of parody. If a parody whose wide dissemination in the market runs the risk of serving as a substitute for the original or licensed derivatives (see infra, discussing factor four), it is more incumbent on one claiming fair use to establish the extent of transformation and the parody's critical relationship to the original. By contrast, when there is little or no risk of market substitution, whether because of the large extent of transformation of the earlier work, the new work's minimal distribution in the market, the small extent to which it borrows from an original, or other factors, taking parodic aim at an original is a less critical factor in the analysis, and looser forms of parody may be found to be fair use, as may satire with lesser justification for the borrowing than would otherwise be required.

[ Footnote 15 ] Satire has been defined as a work "in which prevalent follies or vices are assailed with ridicule," 14 The Oxford English Dictionary 500 (2d ed. 1989), or are "attacked through irony, derision, or wit," The American Heritage Dictionary 1604 (3d ed. 1992).

[ Footnote 16 ] The only further judgment, indeed, that a court may pass on a [ CAMPBELL v. ACUFF-ROSE MUSIC, INC., ___ U.S. ___ (1994), 13] work goes to an assessment of whether the parodic element is slight or great, and the copying small or extensive in relation to the parodic element, for a work with slight parodic element and extensive copying will be more likely to merely "supersede the objects" of the original. See infra, at ___, discussing factors three and four.

[ Footnote 17 ] We note in passing that 2 Live Crew need not label its whole album, or even this song, a parody in order to claim fair use protection, nor should 2 Live Crew be penalized for this being its first parodic essay. Parody serves its goals whether labeled or not, and there is no reason to require parody to state the obvious, (or even the reasonably perceived). See Patry & Perlmutter 716-717.

[ Footnote 18 ] Finally, regardless of the weight one might place on the alleged infringer's state of mind, compare Harper & Row, 471 U.S., at 562 (fair use presupposes good faith and fair dealing) (quotation marks omitted), with Folsom v. Marsh, 9 F.Cas. 342, 349 (No. 4,901) (CCD Mass. 1841) (good faith does not bar a finding of infringement); Leval 1126-1127 (good faith irrelevant to fair use analysis), we reject Acuff-Rose's argument that 2 Live Crew's request for permission to use the original should be weighed against a finding of fair use. Even if good faith were central to fair use, 2 Live Crew's actions do not necessarily suggest that they believed their version was not fair use; the offer may simply have been made in a good faith effort to avoid this litigation. If the use is otherwise fair, then no permission need be sought or granted. Thus, being denied permission to use a work does not weigh against a finding of fair use. See Fisher v. Dees, 794 F.2d 432, 437 (CA9 1986).

[ Footnote 19 ] This may serve to heighten the comic effect of the parody, as one witness stated, App. 32a, Affidavit of Oscar Brand; see also Elsmere Music, Inc. v. National Broadcasting Co., 482 F.Supp. 741, 747 (SDNY 1980) (repetition of "I Love Sodom"), or serve to dazzle with the original's music, as Acuff-Rose now contends.

[ Footnote 20 ] Harper & Row, 471 U.S., at 561; H.R.Rep. No. 102-836, p. 3, n. 3 (1992).

[ Footnote 21 ] Even favorable evidence, without more, is no guarantee of fairness. Judge Leval gives the example of the film producer's appropriation of a composer's previously unknown song that turns the song into a commercial success; the boon to the song does not make the film's simple copying fair. Leval 1124, n. 84. This factor, no less than the other three, may be addressed only through a "sensitive balancing of interests." Sony, 464 U.S., at 455, n. 40. Market harm is a matter of degree, and the importance of this factor will vary not only with the amount of harm, but also with the relative strength of the showing on the other factors.

[ Footnote 22 ] We express no opinion as to the derivative markets for works using elements of an original as vehicles for satire or amusement, making no comment on the original or criticism of it.

[ Footnote 23 ] See Nimmer 13.05[A]4., p. 13-102.61 ("a substantially adverse impact on the potential market"); Leval 1125 ("reasonably substantial" harm); Patry & Perlmutter 697-698 (same).

[ Footnote 24 ] In some cases it, may be difficult to determine whence the harm flows. In such cases, the other fair use factors may provide some indicia of the likely source of the harm. A work whose overriding purpose and character is parodic and whose borrowing is slight in relation to its parody will be far less likely to cause cognizable harm than a work with little parodic content and much copying. [ CAMPBELL v. ACUFF-ROSE MUSIC, INC., ___ U.S. ___ (1994), 1]

JUSTICE KENNEDY, concurring.

I agree that remand is appropriate and join the opinion of the Court, with these further observations about the fair use analysis of parody.

The common law method instated by the fair use provision of the copyright statute, 17 U.S.C. 107 (1988 ed. and Supp. IV), presumes that rules will emerge from the course of decisions. I agree that certain general principles are now discernable to define the fair use exception for parody. One of these rules, as the Court observes, is that parody may qualify as fair use regardless of whether it is published or performed for profit. Ante, at 22. Another is that parody may qualify as fair use only if it draws upon the original composition to make humorous or ironic commentary about that same composition. Ante, at 10. It is not enough that the parody use the original in a humorous fashion, however creative that humor may be. The parody must target the original, and not just its general style, the genre of art to which it belongs, or society as a whole (although if it targets the original, it may target those features as well). See Rogers v. Koons, 960 F.2d 301, 310 (CA2 1992) ("[T]hough the satire need not be only of the copied work and may... also be a parody of modern society, the copied work must be, at least in [ CAMPBELL v. ACUFF-ROSE MUSIC, INC., ___ U.S. ___ (1994), 2] part, an object of the parody"); Fisher v. Dees, 794 F.2d 432, 436 (CA9 1986) ("[A] humorous or satiric work deserves protection under the fair use doctrine only if the copied work is at least partly the target of the work in question"). This prerequisite confines fair use protection to works whose very subject is the original composition and so necessitates some borrowing from it. See MCA, Inc. v. Wilson, 677 F.2d 180, 185 (CA2 1981) ("[I]f the copyrighted song is not at least in part an object of the parody, there is no need to conjure it up"); Bisceglia, Parody and Copyright Protection: Turning the Balancing Act Into a Juggling Act, in ASCAP, Copyright Law Symposium, No. 34, pp. 23-29 (1987). It also protects works we have reason to fear will not be licensed by copyright holders who wish to shield their works from criticism. See Fisher, supra, at 437 ("Self-esteem is seldom strong enough to permit the granting of permission even in exchange for a reasonable fee"); Posner, When Is Parody Fair Use?, 21 J. Legal Studies 67, 73 (1992) ("There is an obstruction when the parodied work is a target of the parodist's criticism, for it may be in the private interest of the copyright owner, but not in the social interest, to suppress criticism of the work") (emphasis omitted).

If we keep the definition of parody within these limits, we have gone most of the way towards satisfying the four-factor fair use test in 107. The first factor (the purpose and character of use) itself concerns the definition of parody. The second factor (the nature of the copyrighted work) adds little to the first, since "parodies almost invariably copy publicly known, expressive works." Ante, at 17. The third factor (the amount and substantiality of the portion used in relation to the whole) is likewise subsumed within the definition of parody. In determining whether an alleged parody has taken too much, the target of the parody is what gives content to the inquiry. Some parodies, by their nature, [ CAMPBELL v. ACUFF-ROSE MUSIC, INC., ___ U.S. ___ (1994), 3] require substantial copying. See Elsmere Music, Inc. v. National Broadcasting Co., 623 F.2d 252 (CA2 1980) (holding that "I Love Sodom" skit on "Saturday Night Live" is legitimate parody of the "I Love New York" campaign). Other parodies, like Lewis Carroll's "You Are Old, Father William," need only take parts of the original composition. The third factor does reinforce the principle that courts should not accord fair use protection to profiteers who do no more than add a few silly words to someone else's song or place the characters from a familiar work in novel or eccentric poses. See, e.g., Walt Disney Productions v. Air Pirates, 581 F.2d 751 (CA9 1978); DC Comics Inc. v. Unlimited Monkey Business, Inc., 598 F.Supp. 110 (ND Ga. 1984). But, as I believe the Court acknowledges, ante, at 18-20, it is by no means a test of mechanical application. In my view, it serves in effect to ensure compliance with the targeting requirement.

As to the fourth factor (the effect of the use on the market for the original), the Court acknowledges that it is legitimate for parody to suppress demand for the original by its critical effect. Ante, at 22-23. What it may not do is usurp demand by its substitutive effect. Ibid. It will be difficult, of course, for courts to determine whether harm to the market results from a parody's critical or substitutive effects. But again, if we keep the definition of parody within appropriate bounds, this inquiry may be of little significance. If a work targets another for humorous or ironic effect, it is by definition a new creative work. Creative works can compete with other creative works for the same market, even if their appeal is overlapping. Factor four thus underscores the importance of ensuring that the parody is in fact an independent creative work, which is why the parody must "make some critical comment or statement about the original work which reflects the original perspective of the parodist - thereby giving the [ CAMPBELL v. ACUFF-ROSE MUSIC, INC., ___ U.S. ___ (1994), 4] parody social value beyond its entertainment function." Metro-Goldwyn-Mayer, Inc. v. Showcase Atlanta Cooperative Productions, Inc., 479 F.Supp. 351, 357 (ND Ga. 1979).

The fair use factors thus reinforce the importance of keeping the definition of parody within proper limits. More than arguable parodic content should be required to deem a would-be parody a fair use. 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. Almost any revamped modern version of a familiar composition can be construed as a "comment on the naivete of the original," ante, at 13, because of the difference in style and because it will be amusing to hear how the old tune sounds in the new genre. Just the thought of a rap version of Beethoven's Fifth Symphony or "Achy, Breaky Heart" is bound to make people smile. 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.

The Court decides it is "fair to say that 2 Live Crew's song reasonably could be perceived as commenting on the original or criticizing it, to some degree." Ante, at 13 (applying the first fair use factor). 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 take-off is rationalized post hoc as a parody.

With these observations, I join the opinion of the Court. [ CAMPBELL v. ACUFF-ROSE MUSIC, INC., ___ U.S. ___ (1994), 1]

· [ U.S. ]

· [ U.S. ]

· [ U.S. ]

CAPITAL PUNISHMENT: HISTORY

TASK 1. Match the following headings with the sections of the text below: