Supreme Court rules parody of song may be ‘fair use’

WASHINGTON, D.C. — The commercial parody of the rock ‘n’ roll classic, “Oh, Pretty Woman,” by the rap group 2 Live Crew may be protected as a fair use under copyright law, the Supreme Court ruled in early March.

The high court rejected a federal appeals court’s finding that the commercial purpose of all parody makes it presumptively unfair.

Considering the parodic purpose of the 2 Live Crew song, the high court concluded that the rap group had not necessarily copied excessively from the original.

Ray Orbison and William Dees wrote the original song in 1964. “Pretty Woman,” written by 2 Live Crew’s Luther Campbell in 1989, starts with the same bass riff and first line as the original song. 2 Live Crew substitutes “shocking lyrics for predictable ones” and interposes “scraper” noises, overlays solos in different keys and alters the drum beat, according to the opinion.

The high court said the Court of Appeals in Cincinnati (6th Cir.) did not appreciate the need in parody to use some characteristic features of the original work. The court said it found the critical element of parody in the 2 Live Crew song, but left it to the lower court on remand to evaluate whether the parodic element of the work is slight or great.

Lastly, the court dismissed any inference of harm to the original copyright holder’s market. The derivative market for rap music is a proper focus of inquiry, although no evidence was offered in the lower courts. The high court suggested that this “evidentiary hole” be plugged on remand.

The case began when Acuff-Rose Music, the owner of the copyright in the 1964 song sued Campbell in June 1990 in federal district court in Nashville, claiming that the parody infringed its copyright.

The Supreme Court returned the case to the district court for further consideration.

(Campbell v. Acuff-Rose Music, Inc.; Media Counsel: Bruce Rogow, Fort Lauderdale, Fla.)

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