Copyright Law and the Fair Use Doctrine

What Does it Mean to Copyright Music?

At one time or another, we’ve seen the words “all rights restricted” on a CD, album, or iTunes file.  We’ve also seen those FBI warnings at the beginning of films, but what does it all mean? These boilerplate statements seen on artistic works refer to Federal copyright law.  In this article, we will limit the discussion to copyright law as it relates to music and recordings.    Federal copyright law protects the owners of music and recordings from unlawful sampling or pirating.  That means the owner of the music has the exclusive right to copy, record, sell and distribute the music.  The owner can decide if another musician or group can record his music or use it in a performance.  He can charge other musicians and entertainment companies for using all or part of his musical creation, and he can sue to prevent unauthorized uses.  There are different rules governing master recordings, music compositions, and hosting your music on music streaming services.  Federal copyright law is an intricate web of rules and regulations for different works and different elements of those works.

Copyright law is complex, having developed by judicial decision over decades of court cases.  In the 1970’s those judicial precedents were compiled and codified in the Federal Copyright Act of 1976.  Along with all its protections for artistic works, the statute includes section 107, which provides some general loopholes in the form of the “fair use doctrine,” a concept developed by the judiciary to allow for reasonable uses of a musical work for education, criticism, news reporting, research, and the like.  For example: it would be unreasonable for a news program to be precluded from playing excerpts from a parody or song that was the subject of a newsworthy lawsuit.

“Criticism” includes satires and parodies of the work. Fisher v. Dees, 794 F. 2d 432 (CA9 1986) was a 9th Circuit case where the Court held “When Sonny Sniffs Glue,” a parody of the old classic “When Sonny Gets Blue,” was fair use of the original.   You have seen and heard parodies of hit songs on YouTube, TV and the radio. In most cases, commercial parodies get a license to use the original, but not always. You may remember Weird Al Yankovic, who recorded parodies of many popular songs.  His song “Eat It” was a hugely popular parody of the Michael Jackson hit “Beat It.”

Campbell v. Acuff Rose-Music, Inc.

The key court case that interpreted the fair use exception to copyright law is Campbell, AKA Skywalker, et al. v. Acuff-Rose Music, Inc., 510 U.S.C. 569 (1994).  The case created some guidelines for deciding what is and is not fair use, but it did not create any hard and fast rules.  Justice Souter explained in the Supreme Court opinion that Congress never intended nor does the judiciary favor creating a bright line of rigid rules for deciding fair use.  “The task is not to be simplified with bright-line rules, for the statute, like the doctrine it recognizes, calls for case-by-case analysis.”  Justice Souter in Campbell at 577, citing Harper & Row, 471 U.S. at 560. 

Background to the Case

Campbell v. Acuff-Rose arose in 1989, when the rap group, 2 Live Crew, recorded a song called “Pretty Woman.”  The rap song was a parody of Roy Orbison’s “Oh Pretty Woman.”  Roy Orbison was a well-known singer/song writer in the 1960’s and 1970’s.  Orbison and Bill Dees wrote the song “Oh Pretty Woman,” and Orbison recorded it in 1964.  It was a big hit, spending 3 weeks in the number one spot on Billboard’s Hot 100, and it sold 7 million records, which was considered a huge number in 1964.  Most people have heard this song.  It has been used in TV commercials and recorded by many artists.  It begins: “Pretty Woman, walking down the street, Pretty Woman, the kind I like to meet , . . “

In 1989, Luther Campbell, of 2 Live Crew, wrote a song called “Pretty Woman.”  It was a parody of the original, using a play on words to point out how phony and bland Roy Orbison’s version was.  The group approached Acuff-Rose, the owners of the song, and offered to purchase the right to use the original in their parody, but Acuff-Rose refused to grant them the license.  2 Live Crew opted to release its version despite the opposition in their album “As Clean As They Wanna Be.”  The album, released on both cassette and CD, was a hit, and Acuff-Rose sued for copyright infringement.  Campbell and his bandmates defended their action on the basis that their parody was a protected use under the fair use doctrine and not a copyright infringement.

The Fair Use Doctrine

The 1976 Copyright Act lists four factors to be considered in determining whether or not the fair use exception to copyright law applies.  The factors are as follows:

(1) The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purpose;

(2) The nature of the copyrighted work;

(3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) The effect of the use upon the potential market for or value of the copyrighted work.

Although the 4 factors are clearly set forth in the statute, the courts have struggled and sometimes disagreed on how they are to be evaluated and applied.     

The Case Proceeds Through the Federal Courts

The case first went to the District Court for the Middle District of Tennessee.  The District Court agreed there was substantial similarity between the two songs, but held that as a parody, the 2 Live Crew recording was a fair use of the original work.  It granted Campbell’s motion for summary judgment, holding the commercial nature of 2 Live Crew’s work was not a bar to fair use protection.  Acuff-Rose appealed to the Sixth Circuit Court of Appeals.  The Sixth Circuit focused on the commercial purpose of the 2 Live Crew song.  It held that the song was recorded for profit, and the for-profit motive made it presumptively unfair to use the Roy Orbison version.  It found that copyright law had been violated.

2 Live Crew asked the United States Supreme Court to accept review of the Sixth Circuit’s appellate court decision.  The Supreme Court took the case, and, in a unanimous 1994 decision, reversed the ruling of the Court of Appeals.  In an opinion written by Justice Souter with a concurring opinion by Justice Kennedy, the Court criticized the decision below for its rigid application of the commercial purpose factor.  Justice Souter wrote that the Court of Appeals short circuited the fair use enquiry by focusing entirely on the commercial nature of the parody and considering nothing else.  The Court of Appeals seemed to say that every commercial use of a musical work was an unfair use, a copyright infringement.  Justice Souter said:

Accordingly, the mere fact that a use is educational and not for profit does not insulate it from a finding of infringement, any more than the commercial character of a use bars a finding of fairness.  If indeed, commerciality carried presumptive force against a finding of fairness, the presumption would swallow nearly all of the illustrative uses listed in the preamble paragraph of § 107, including news reporting, comment, criticism, teaching, scholarship, and research, since these activities “are generally conducted for profit in this country.”  Campbell at 584, Citing Harper & Row, 471 U.S. 539, 592 (1985).

The Supreme Court held it was error to presume that a commercial use of a work is always unfair.  It also noted that the transformative nature of parody mitigates against the idea that the commercial purpose controls.

The Court held that the second factor, the nature of the copyrighted work, is not much help in determining fair use.  The Court then considered the third factor, how much of the original work is used in the copy?  It decided that 2 Live Crew had taken the heart of the original and used it in their song, but that you cannot do a parody without using a substantial portion of the original. 

The fourth fair use factor is the effect of the appropriated use upon the potential market or the value of the original.  Here, the Court pointed out that a parody transforms the original.  The original and the parody usually appeal to different audiences.  It noted that the market for Orbison’s romantic, white bread song would be quite different than the market for the gritty rap parody.  The Supreme Court held that the Court of Appeals had erred in focusing solely on the commercial nature of 2 Live Crew’s recording.  It held that 2 Live Crew’s “Pretty Woman” was a parody intended to ridicule Orbison’s romantic view of sexual congress after seeing a woman on the street.  It replaced his lyrics with vulgar substitutes such as “Big hairy woman you need to shave that stuff.  Big hairy woman you know I bet it’s tough.”

What We Can Learn From Campbell v. Acuff-Rose

The case tells us that copyright infringement cases will be considered on their own facts.  There are no hard and fast rules to tell us what is copyright infringement and what is fair use.  It tells us that parody will be given a wider latitude by the courts than other uses, and that profit cannot be the only determining factor of what is and is not fair use of a copyrighted work.






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