go to words of the songs in question
go to majority opinion
go to concurring opinion
FN* The syllabus constitutes no part of the opinion of the Court but
has been prepared by the Reporter of Decisions for the convenience of the
reader. See United States v. Detroit Lumber Co., 200 U.S. 321, 337, 26 S.Ct.
282, 287, 50 L.Ed. 499.
Respondent 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." The District
Court granted summary judgment for 2 Live Crew, holding that its song was
a parody that made fair use of the original song. See Copyright Act of 1976,
17 U.S.C. s 107. The Court of Appeals reversed and remanded, holding that
the commercial nature of the parody rendered it presumptively unfair under
the first of four factors relevant under s 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 s 107 factor; and
that market harm for purposes of the fourth s 107 factor had been established
by a presumption attaching to commercial uses.
Held: 2 Live Crew's commercial parody may be a fair use within the meaning
of s 107. Pp. 1169-1179.
(a) Section 107, which provides that "the fair use of a copyrighted
work ... for purposes such as criticism [or] comment ... is not an infringement
...," continues the common-law tradition of fair use adjudication and
requires case-by-case analysis rather than bright-line rules. 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. Pp. 1169-1171.
(b) Parody, like other comment and criticism, may claim fair use. Under
the first of the four s 107 factors, "the purpose and character of
the use, including whether such use is of a commercial nature ...,"
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,"
altering the original with new expression, meaning, or message. 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.
The heart of any parodist's claim to quote from existing material is the
use of some elements of a prior author's composition to create a new one
that, at least in part, comments on that author's work. But that tells courts
little about where to draw the line. Thus, like other uses, parody has to
work its way through the relevant factors. Pp. 1171-1172.
(c) The Court of Appeals properly assumed that 2 Live Crew's song contains
parody commenting on and criticizing the original work, but erred in giving
virtually dispositive weight to the commercial nature of that parody by
way of a presumption, ostensibly culled from Sony Corp. of America v. Universal
City Studios, Inc., 464 U.S. 417, 451, 104 S.Ct. 774, 792, 78 L.Ed.2d 574,
that "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,
and Sony itself called for no hard evidentiary presumption. The Court of
Appeals's rule runs counter to Sony and to the long common-law tradition
of fair use adjudication. Pp. 1172-1174.
(d) The second s 107 factor, "the nature of the copyrighted work,"
is not much help in resolving this and other parody cases, since parodies
almost invariably copy publicly known, expressive works, like the Orbison
song here. P. 1175.
(e) The Court of Appeals erred in holding that, as a matter of law, 2 Live
Crew copied excessively from the Orbison original under the third s 107
factor, which asks whether "the amount and substantiality of the portion
used in relation to the copyrighted work as a whole" are reasonable
in relation to the copying's purpose. 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. Moreover, 2 Live Crew thereafter departed markedly from the Orbison
lyrics and produced otherwise distinctive music. As to the lyrics, the copying
was not excessive in relation to the song's parodic purpose. As to the music,
this Court expresses no opinion whether repetition of the bass riff is excessive
copying, but remands to permit evaluation of the amount taken, in light
of the song's parodic purpose and character, its transformative elements,
and considerations of the potential for market substitution. Pp. 1175-1177.
(f) The Court of Appeals erred in resolving the fourth s 107 factor, "the
effect of the use upon the potential market for or value of the copyrighted
work," by presuming, in reliance on Sony, supra, at 451, 104 S.Ct.,
at 793, the likelihood of significant market harm based on 2 Live Crew's
use for commercial gain. 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. The cognizable harm is
market substitution, not any harm from criticism. 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. The fourth
factor requires courts also to consider the potential market for derivative
works. See, e.g., Harper & Row Publishers, Inc. v. Nation Enterprises,
471 U.S. 539, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985). If the later work has
cognizable substitution effects in protectible markets for derivative works,
the law will look beyond the criticism to the work's other elements. 2 Live
Crew's song comprises not only parody but also rap music. The absence of
evidence or affidavits addressing the effect of 2 Live Crew's song on the
derivative market for a nonparody, rap version of "Oh, Pretty Woman"
disentitled 2 Live Crew, as the proponent of the affirmative defense of
fair use, to summary judgment. Pp. 1177-1179.
972 F.2d 1429 (CA6 1992), reversed and remanded.
Justice SOUTER delivered the opinion of the Court.
We are called upon to decide whether 2 Live Crew's commercial parody of
Roy Orbison's song, "Oh, Pretty Woman," may be a fair use within
the meaning of the Copyright Act of 1976, 17 U.S.C. s 107 (1988 ed. and
Supp. IV). Although the District Court granted summary judgment for 2 Live
Crew, the Court of Appeals reversed, holding the defense of fair use barred
by the song's commercial character and excessive borrowing. Because we hold
that a parody's commercial character is only one element to be weighed in
a fair use enquiry, and that insufficient consideration was given to the
nature of parody in weighing the degree of copying, we reverse and remand.
In 1964, Roy Orbison and William Dees wrote a rock ballad called "Oh,
Pretty Woman" and assigned their rights in it to respondent Acuff-Rose
Music, Inc. See Appendix A, infra, at 1179. Acuff-Rose registered the song
for copyright protection.
Petitioners Luther R. Campbell, Christopher Wongwon, Mark Ross, and David
Hobbs are collectively known as 2 Live Crew, a popular rap music group. [FN1] In 1989, Campbell
wrote a song entitled "Pretty Woman," which he later described
in an affidavit as intended, "through comical lyrics, to satirize the
original work...." App. to Pet. for Cert. 80a. On July 5, 1989, 2 Live
Crew's manager informed Acuff-Rose that 2 Live Crew had written a parody
of "Oh, Pretty Woman," that they would afford all credit for ownership
and authorship of the original song to Acuff-Rose, Dees, and Orbison, and
that they were willing to pay a fee for the use they wished to make of it.
Enclosed with the letter were a copy of the lyrics and a recording of 2
Live Crew's song. See Appendix B, infra, at 1179-80. Acuff-Rose's agent
refused permission, stating that "I am aware of the success enjoyed
by 'The 2 Live Crews', but I must inform you that we cannot permit the use
of a parody of 'Oh, Pretty Woman.' " App. to Pet. for Cert. 85a. Nonetheless,
in June or July 1989, [FN2]
2 Live Crew released records, cassette tapes, and compact discs of "Pretty
Woman" in a collection of songs entitled "As Clean As They Wanna
Be." The albums and compact discs identify the authors of "Pretty
Woman" as Orbison and Dees and its publisher as Acuff-Rose.
Almost a year later, after nearly a quarter of a million copies of the recording
had been sold, Acuff-Rose sued 2 Live Crew and its record company, Luke
Skyywalker Records, for copyright infringement. The District Court granted
summary judgment for 2 Live Crew, [FN3]
reasoning that the commercial purpose of 2 Live Crew's song was no bar to
fair use; that 2 Live Crew's version was a parody, which "quickly degenerates
into a play on words, substituting predictable lyrics with shocking ones"
to show "how bland and banal the Orbison song" is; that 2 Live
Crew had taken no more than was necessary to "conjure up" the
original in order to parody it; and that it was "extremely unlikely
that 2 Live Crew's song could adversely affect the market for the original."
754 F.Supp. 1150, 1154-1155, 1157-1158 (MD Tenn.1991). The District Court
weighed these factors and held that 2 Live Crew's song made fair use of
Orbison's original. Id., at 1158-1159.
The Court of Appeals for the Sixth Circuit reversed and remanded. 972 F.2d
1429, 1439 (1992). Although it assumed for the purpose of its opinion that
2 Live Crew's song was a parody of the Orbison original, the Court of Appeals
thought the District Court had put too little emphasis on the fact that
"every commercial use ... is presumptively ... unfair," Sony Corp.
of America v. Universal City Studios, Inc., 464 U.S. 417, 451, 104 S.Ct.
774, 792, 78 L.Ed.2d 574 (1984), and it held that "the admittedly commercial
nature" of the parody "requires the conclusion" that the
first of four factors relevant under the statute weighs against a finding
of fair use. 972 F.2d, at 1435, 1437. Next, the Court of Appeals determined
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. Id.,
at 1438. Finally, after noting that the effect on the potential market for
the original (and the market for derivative works) is "undoubtedly
the single most important element of fair use," Harper & Row, Publishers,
Inc. v. Nation Enterprises, 471 U.S. 539, 566, 105 S.Ct. 2218, 2233, 85
L.Ed.2d 588 (1985), the Court of Appeals faulted the District Court for
"refus[ing] to indulge the presumption" that "harm for purposes
of the fair use analysis has been established by the presumption attaching
to commercial uses." 972 F.2d, at 1438-1439. In sum, the court concluded
that its "blatantly commercial purpose ... prevents this parody from
being a fair use." Id., at 1439.
We granted certiorari, 507 U.S. 1003, 113 S.Ct. 1642, 123 L.Ed.2d 264 (1993),
to determine whether 2 Live Crew's commercial parody could be a fair use.
It is uncontested here that 2 Live Crew's song would be an infringement
of Acuff-Rose's rights in "Oh, Pretty Woman," under the Copyright
Act of 1976, 17 U.S.C. s 106 (1988 ed. and Supp. IV), but for a finding
of fair use through parody. [FN4] From the infancy of copyright protection, some opportunity
for fair use of copyrighted materials has been thought necessary to fulfill
copyright's very purpose, "[t]o promote the Progress of Science and
useful Arts...." U.S. Const., Art. I, s 8, cl. 8.
[FN5] For as Justice Story explained, "[i]n
truth, in literature, in science and in art, there are, and can be, few,
if any, things, which in an abstract sense, are strictly new and original
throughout. Every book in literature, science and art, borrows, and must
necessarily borrow, and use much which was well known and used before."
Emerson v. Davies, 8 F.Cas. 615, 619 (No. 4,436) (CCD Mass.1845). Similarly,
Lord Ellenborough expressed the inherent tension in the need simultaneously
to protect copyrighted material and to allow others to build upon it when
he wrote, "while I shall think myself bound to secure every man in
the enjoyment of his copy-right, one must not put manacles upon science."
Carey v. Kearsley, 4 Esp. 168, 170, 170 Eng.Rep. 679, 681 (K.B.1803). In
copyright cases brought under the Statute of Anne of 1710,
[FN6] English courts held that in some instances
"fair abridgements" would not infringe an author's rights, see
W. Patry, The Fair Use Privilege in Copyright Law 6-17 (1985) (hereinafter
Patry); Leval, Toward a Fair Use Standard, 103 Harv.L.Rev. 1105 (1990) (hereinafter
Leval), and although the First Congress enacted our initial copyright statute,
Act of May 31, 1790, 1 Stat. 124, without any explicit reference to "fair
use," as it later came to be known, [FN7]
the doctrine was recognized by the American courts nonetheless.
In Folsom v. Marsh, 9 F.Cas. 342 (No. 4,901) (CCD Mass. 1841), Justice Story
distilled the essence of law and methodology from the earlier cases: "look
to the nature and objects of the selections made, the quantity and value
of the materials used, and the degree in which the use may prejudice the
sale, or diminish the profits, or supersede the objects, of the original
work." Id., at 348. Thus expressed, fair use remained exclusively judge-
made doctrine until the passage of the 1976 Copyright Act, in which Justice
Story's summary is discernible: [FN8]
s 107. Limitations on exclusive rights: Fair use "Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include--
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(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.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
The first factor in a fair use enquiry is "the purpose and character
of the use, including whether such use is of a commercial nature or is for
nonprofit educational purposes." s 107(1). This factor draws on Justice
Story's formulation, "the nature and objects of the selections made."
Folsom v. Marsh, supra, at 348. The enquiry here may be guided by the examples
given in the preamble to s 107, looking to whether the use is for criticism,
or comment, or news reporting, and the like, see s 107. The central purpose
of this investigation is to see, in Justice Story's words, whether the new
work merely "supersede[s] the objects" of the original creation,
Folsom v. Marsh, supra, at 348; accord, Harper & Row, supra, 471 U.S.,
at 562, 105 S.Ct., at 2231 ("supplanting" the original), or instead
adds something new, with a further purpose or different character, altering
the first with new expression, meaning, or message; it asks, in other words,
whether and to what extent the new work is "transformative." Leval
1111. Although such transformative use is not absolutely necessary for a
finding of fair use, Sony, supra, 464 U.S., at 455, n. 40, 104 S.Ct., at
795, n. 40, [FN11]
the goal of copyright, to promote science and the arts, is generally furthered
by the creation of transformative works. Such works thus lie at the heart
of the fair use doctrine's guarantee of breathing space within the confines
of copyright, see, e.g., Sony, supra, at 478-480, 104 S.Ct., at 807-808
(BLACKMUN, J., dissenting), and 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.
This Court has only once before even considered whether parody may be fair
use, and that time issued no opinion because of the Court's equal division.
Benny v. Loew's Inc., 239 F.2d 532 (CA9 1956), aff'd sub nom. Columbia Broadcasting
System, Inc. v. Loew's Inc., 356 U.S. 43, 78 S.Ct. 667, 2 L.Ed.2d 583 (1958).
Suffice it to say now that parody has an obvious claim to transformative
value, as Acuff-Rose itself does not deny. Like less ostensibly humorous
forms of criticism, it can provide social benefit, by shedding light on
an earlier work, and, in the process, creating a new one. We thus line up
with the courts that have held that parody, like other comment or criticism,
may claim fair use under s 107. See, e.g., Fisher v. Dees, 794 F.2d 432
(CA9 1986) ("When Sonny Sniffs Glue," a parody of "When Sunny
Gets Blue," is fair use); Elsmere Music, Inc. v. National Broadcasting
Co., 482 F.Supp. 741 SDNY), aff'd, 623 F.2d 252 (CA2 1980) ("I Love
Sodom," a "Saturday Night Live" television parody of "I
Love New York," is fair use); see also House Report, p. 65; Senate
Report, p. 61, U.S.Code Cong. & Admin.News 1976, pp. 5659, 5678 ("[U]se
in a parody of some of the content of the work parodied" may be fair
use).
The germ of parody lies in the definition of the Greek parodeia, quoted
in Judge Nelson's Court of Appeals dissent, as "a song sung alongside
another." 972 F.2d, at 1440, quoting 7 Encyclopedia Britannica 768
(15th ed. 1975). Modern dictionaries accordingly describe a parody as a
"literary or artistic work that imitates the characteristic style of
an author or a work for comic effect or ridicule,"
[FN12] or as a "composition in prose or
verse in which the characteristic turns of thought and phrase in an author
or class of authors are imitated in such a way as to make them appear ridiculous." [FN13] For the purposes
of copyright law, the nub of the definitions, and the heart of any parodist's
claim to quote from existing material, is the use of some elements of a
prior author's composition to create a new one that, at least in part, comments
on that author's works. See, e.g., Fisher v. Dees, supra, at 437; MCA, Inc.
v. Wilson, 677 F.2d 180, 185 (CA2 1981). If, on the contrary, the commentary
has no critical bearing on the substance or style of the original composition,
which the alleged infringer merely uses to get attention or to avoid the
drudgery in working up something fresh, the claim to fairness in borrowing
from another's work diminishes accordingly (if it does not vanish), and
other factors, like the extent of its commerciality, loom larger. [FN14] Parody needs to
mimic an original to make its point, and so has some claim to use the creation
of its victim's (or collective victims') imagination, whereas satire can
stand on its own two feet and so requires justification for the very act
of borrowing. [FN15]
See ibid.; Bisceglia, Parody and Copyright Protection: Turning the Balancing
Act Into a Juggling Act, in ASCAP, Copyright Law Symposium, No. 34, p. 25
(1987).
The fact that parody can claim legitimacy for some appropriation does not,
of course, tell either parodist or judge much about where to draw the line.
Like a book review quoting the copyrighted material criticized, parody may
or may not be fair use, and petitioners' suggestion that any parodic use
is presumptively fair has no more justification in law or fact than the
equally hopeful claim that any use for news reporting should be presumed
fair, see Harper & Row, 471 U.S., at 561, 105 S.Ct., at 2230. The Act
has no hint of an evidentiary preference for parodists over their victims,
and no workable presumption for parody could take account of the fact that
parody often shades into satire when society is lampooned through its creative
artifacts, or that a work may contain both parodic and nonparodic elements.
Accordingly, parody, like any other use, has to work its way through the
relevant factors, and be judged case by case, in light of the ends of the
copyright law.
Here, the District Court held, and the Court of Appeals assumed, that 2
Live Crew's "Pretty Woman" contains parody, commenting on and
criticizing the original work, whatever it may have to say about society
at large. As the District Court remarked, the words of 2 Live Crew's song
copy the original's first line, but then "quickly degenerat[e] into
a play on words, substituting predictable lyrics with shocking ones ...
[that] derisively demonstrat[e] how bland and banal the Orbison song seems
to them." 754 F.Supp., at 1155 (footnote omitted). Judge Nelson, dissenting
below, came to the same conclusion, that the 2 Live Crew song "was
clearly intended to ridicule the white-bread original" and "reminds
us that sexual congress with nameless streetwalkers is not necessarily the
stuff of romance and is not necessarily without its consequences. The singers
(there are several) have the same thing on their minds as did the lonely
man with the nasal voice, but here there is no hint of wine and roses."
972 F.2d, at 1442. Although the majority below had difficulty discerning
any criticism of the original in 2 Live Crew's song, it assumed for purposes
of its opinion that there was some. Id., at 1435-1436, and n. 8.
We have less difficulty in finding that critical element in 2 Live Crew's
song than the Court of Appeals did, although having found it we will not
take the further step of evaluating its quality. The threshold question
when fair use is raised in defense of parody is whether a parodic character
may reasonably be perceived. [FN16]
Whether, going beyond that, parody is in good taste or bad does not and
should not matter to fair use. As Justice Holmes explained, "[i]t would
be a dangerous undertaking for persons trained only to the law to constitute
themselves final judges of the worth of [a work], outside of the narrowest
and most obvious limits. At the one extreme some works of genius would be
sure to miss appreciation. Their very novelty would make them repulsive
until the public had learned the new language in which their author spoke."
Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 251, 23 S.Ct. 298,
300, 47 L.Ed. 460 (1903) (circus posters have copyright protection); cf.
Yankee Publishing Inc. v. News America Publishing, Inc., 809 F.Supp. 267,
280 (SDNY 1992) (Leval, J.) ("First Amendment protections do not apply
only to those who speak clearly, whose jokes are funny, and whose parodies
succeed") (trademark case).
While we might not assign a high rank to the parodic element here, we think
it fair to say that 2 Live Crew's song reasonably could be perceived as
commenting on the original or criticizing it, to some degree. 2 Live Crew
juxtaposes the romantic musings of a man whose fantasy comes true, with
degrading taunts, a bawdy demand for sex, and a sigh of relief from paternal
responsibility. The later words can be taken as a comment on the naivete
of the original of an earlier day, as a rejection of its sentiment that
ignores the ugliness of street life and the debasement that it signifies.
It is this joinder of reference and ridicule that marks off the author's
choice of parody from the other types of comment and criticism that traditionally
have had a claim to fair use protection as transformative works. [FN17]
The Court of Appeals, however, immediately cut short the enquiry into 2
Live Crew's fair use claim by confining its treatment of the first factor
essentially to one relevant fact, the commercial nature of the use. The
court then inflated the significance of this fact by applying a presumption
ostensibly culled from Sony, that "every commercial use of copyrighted
material is presumptively ... unfair...." Sony, 464 U.S., at 451, 104
S.Ct., at 792. In giving virtually dispositive weight to the commercial
nature of the parody, the Court of Appeals erred.
The language of the statute makes clear that the commercial or nonprofit
educational purpose of a work is only one element of the first factor enquiry
into its purpose and character. Section 107(1) uses the term "including"
to begin the dependent clause referring to commercial use, and the main
clause speaks of a broader investigation into "purpose and character."
As we explained in Harper & Row, Congress resisted attempts to narrow
the ambit of this traditional enquiry by adopting categories of presumptively
fair use, and it urged courts to preserve the breadth of their traditionally
ample view of the universe of relevant evidence. 471 U.S., at 561, 105 S.Ct.
at 2230; House Report, p. 66, U.S.Code Cong. & Admin.News 1976, pp.
5659, 5679. 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 s 107, including news reporting, comment, criticism,
teaching, scholarship, and research, since these activities "are generally
conducted for profit in this country." Harper & Row, supra, at
592, 105 S.Ct., at 2246 (Brennan, J., dissenting). Congress could not have
intended such a rule, which certainly is not inferable from the common-law
cases, arising as they did from the world of letters in which Samuel Johnson
could pronounce that "[n]o man but a blockhead ever wrote, except for
money." 3 Boswell's Life of Johnson 19 (G. Hill ed. 1934).
Sony itself called for no hard evidentiary presumption. There, we emphasized
the need for a "sensitive balancing of interests," 464 U.S., at
455, n. 40, 104 S.Ct., at 795, n. 40, noted that Congress had "eschewed
a rigid, bright-line approach to fair use," id., at 449, n. 31, 104
S.Ct., at 792, n. 31, and stated that the commercial or nonprofit educational
character of a work is "not conclusive," id., at 448-449, 104
S.Ct., at 792, but rather a fact to be "weighed along with other[s]
in fair use decisions," id., at 449, n. 32, 104 S.Ct. at 792, n. 32,
(quoting House Report, p. 66) U.S.Code Cong. & Admin.News 1976, pp.
5659, 5679. The Court of Appeals's elevation of one sentence from Sony to
a per se rule thus runs as much counter to Sony itself as to the long common-law
tradition of fair use adjudication. Rather, as we explained in Harper &
Row, Sony stands for the proposition that the "fact that a publication
was commercial as opposed to nonprofit is a separate factor that tends to
weigh against a finding of fair use." 471 U.S., at 562, 105 S.Ct.,
at 2231. But that is all, and the fact that even the force of that tendency
will vary with the context is a further reason against elevating commerciality
to hard presumptive significance. The use, for example, of a copyrighted
work to advertise a product, even in a parody, will be entitled to less
indulgence under the first factor of the fair use enquiry than the sale
of a parody for its own sake, let alone one performed a single time by students
in school. See generally Patry & Perlmutter 679- 680; Fisher v. Dees,
794 F.2d, at 437; Maxtone-Graham v. Burtchaell, 803 F.2d 1253, 1262 (CA2
1986); Sega Enterprises Ltd. v. Accolade, Inc., 977 F.2d 1510, 1522 (CA9
1992). [FN18]
The second statutory factor, "the nature of the copyrighted work,"
s 107(2), draws on Justice Story's expression, the "value of the materials
used." Folsom v. Marsh, 9 F.Cas., at 348. This factor calls for recognition
that some works are closer to the core of intended copyright protection
than others, with the consequence that fair use is more difficult to establish
when the former works are copied. See, e.g., Stewart v. Abend, 495 U.S.,
at 237-238, 110 S.Ct., at 1768-1769 (contrasting fictional short story with
factual works); Harper & Row, 471 U.S., at 563-564, 105 S.Ct., at 2231-2233
(contrasting soon-to-be-published memoir with published speech); Sony, 464
U.S., at 455, n. 40, 104 S.Ct., at 792, n. 40 (contrasting motion pictures
with news broadcasts); Feist, 499 U.S., at 348-351, 111 S.Ct., at 1289-1291
(contrasting creative works with bare factual compilations); 3 M. Nimmer
& D. Nimmer, Nimmer on Copyright s 13.05[A][2] (1993) (hereinafter Nimmer);
Leval 1116. We agree with both the District Court and the Court of Appeals
that the Orbison original's creative expression for public dissemination
falls within the core of the copyright's protective purposes. 754 F.Supp.,
at 1155-1156; 972 F.2d, at 1437. This fact, however, is not much help in
this case, or ever likely to help much in separating the fair use sheep
from the infringing goats in a parody case, since parodies almost invariably
copy publicly known, expressive works.
The third factor asks whether "the amount and substantiality of
the portion used in relation to the copyrighted work as a whole," s
107(3) (or, in Justice Story's words, "the quantity and value of the
materials used," Folsom v. Marsh, supra, at 348) are reasonable in
relation to the purpose of the copying. Here, attention turns to the persuasiveness
of a parodist's justification for the particular copying done, and the enquiry
will harken back to the first of the statutory factors, for, as in prior
cases, we recognize that the extent of permissible copying varies with the
purpose and character of the use. See Sony, supra, 464 U.S., at 449-450,
104 S.Ct., at 792-793 (reproduction of entire work "does not have its
ordinary effect of militating against a finding of fair use" as to
home videotaping of television programs); Harper & Row, supra, 471 U.S.,
at 564, 105 S.Ct., at 2232 ("[E]ven substantial quotations might qualify
as fair use in a review of a published work or a news account of a speech"
but not in a scoop of a soon-to- be-published memoir). The facts bearing
on this factor will also tend to address the fourth, by revealing the degree
to which the parody may serve as a market substitute for the original or
potentially licensed derivatives. See Leval 1123.
The District Court considered the song's parodic purpose in finding that
2 Live Crew had not helped themselves overmuch. 754 F.Supp., at 1156-1157.
The Court of Appeals disagreed, stating that "[w]hile it may not be
inappropriate to find that no more was taken than necessary, the copying
was qualitatively substantial.... We conclude that taking the heart of the
original and making it the heart of a new work was to purloin a substantial
portion of the essence of the original." 972 F.2d, at 1438.
The Court of Appeals is of course correct that this factor calls for thought
not only about the quantity of the materials used, but about their quality
and importance, too. In Harper & Row, for example, the Nation had taken
only some 300 words out of President Ford's memoirs, but we signaled the
significance of the quotations in finding them to amount to "the heart
of the book," the part most likely to be newsworthy and important in
licensing serialization. 471 U.S., at 564-566, 568, 105 S.Ct., at 2232-2234,
2234 (internal quotation marks omitted). We also agree with the Court of
Appeals that whether "a substantial portion of the infringing work
was copied verbatim" from the copyrighted work is a relevant question,
see id., at 565, 105 S.Ct., at 2232, for it may reveal a dearth of transformative
character or purpose under the first factor, or a greater likelihood of
market harm under the fourth; a work composed primarily of an original,
particularly its heart, with little added or changed, is more likely to
be a merely superseding use, fulfilling demand for the original.
Where we part company with the court below is in applying these guides to
parody, and in particular to parody in the song before us. Parody presents
a difficult case. Parody's humor, or in any event its comment, necessarily
springs from recognizable allusion to its object through distorted imitation.
Its art lies in the tension between a known original and its parodic twin.
When parody takes aim at a particular original work, the parody must be
able to "conjure up" at least enough of that original to make
the object of its critical wit recognizable. See, e.g., Elsmere Music, 623
F.2d, at 253, n. 1; Fisher v. Dees, 794 F.2d, at 438-439. What makes for
this recognition is quotation of the original's most distinctive or memorable
features, which the parodist can be sure the audience will know. Once enough
has been taken to assure identification, how much more is reasonable will
depend, say, on the extent to which the song's overriding purpose and character
is to parody the original or, in contrast, the likelihood that the parody
may serve as a market substitute for the original. But using some characteristic
features cannot be avoided.
We think the Court of Appeals was insufficiently appreciative of parody's
need for the recognizable sight or sound when it ruled 2 Live Crew's use
unreasonable as a matter of law. It is true, of course, that 2 Live Crew
copied the characteristic opening bass riff (or musical phrase) of the original,
and true that the words of the first line copy the Orbison lyrics. But if
quotation of the opening riff and the first line may be said to go to the
"heart" of the original, the heart is also what most readily conjures
up the song for parody, and it is the heart at which parody takes aim. Copying
does not become excessive in relation to parodic purpose merely because
the portion taken was the original's heart. If 2 Live Crew had copied a
significantly less memorable part of the original, it is difficult to see
how its parodic character would have come through. See Fisher v. Dees, supra,
at 439.
This is not, of course, to say that anyone who calls himself a parodist
can skim the cream and get away scot free. In parody, as in news reporting,
see Harper & Row, supra, context is everything, and the question of
fairness asks what else the parodist did besides go to the heart of the
original. It is significant that 2 Live Crew not only copied the first line
of the original, but thereafter departed markedly from the Orbison lyrics
for its own ends. 2 Live Crew not only copied the bass riff and repeated
it, [FN19] but
also produced otherwise distinctive sounds, interposing "scraper"
noise, overlaying the music with solos in different keys, and altering the
drum beat. See 754 F.Supp., at 1155. This is not a case, then, where "a
substantial portion" of the parody itself is composed of a "verbatim"
copying of the original. It is not, that is, a case where the parody is
so insubstantial, as compared to the copying, that the third factor must
be resolved as a matter of law against the parodists.
Suffice it to say here that, as to the lyrics, we think the Court of Appeals
correctly suggested that "no more was taken than necessary," 972
F.2d, at 1438, but just for that reason, we fail to see how the copying
can be excessive in relation to its parodic purpose, even if the portion
taken is the original's "heart." As to the music, we 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, its transformative elements, and considerations
of the potential for market substitution sketched more fully below.
The fourth fair use factor is "the effect of the use upon the potential
market for or value of the copyrighted work." s 107(4). It requires
courts to consider not only the extent of market harm caused by the particular
actions of the alleged infringer, but also "whether unrestricted and
widespread conduct of the sort engaged in by the defendant ... would result
in a substantially adverse impact on the potential market" for the
original. Nimmer s 13.05[A] [4], p. 13-102.61 (footnote omitted); accord,
Harper & Row, 471 U.S., at 569, 105 S.Ct., at 2235; Senate Report, p.
65; Folsom v. Marsh, 9 F.Cas., at 349. The enquiry "must take account
not only of harm to the original but also of harm to the market for derivative
works." Harper & Row, supra, 471 U.S. at 568, 105 S.Ct., at 2234.
Since fair use is an affirmative defense, [FN20]
its proponent would have difficulty carrying the burden of demonstrating
fair use without favorable evidence about relevant markets.
[FN21] In moving for summary judgment, 2 Live
Crew left themselves at just such a disadvantage when they failed to address
the effect on the market for rap derivatives, and confined themselves to
uncontroverted submissions that there was no likely effect on the market
for the original. They did not, however, thereby subject themselves to the
evidentiary presumption applied by the Court of Appeals. In assessing the
likelihood of significant market harm, the Court of Appeals quoted from
language in Sony that " '[i]f the intended use is for commercial gain,
that likelihood may be presumed. But if it is for a noncommercial purpose,
the likelihood must be demonstrated.' " 972 F.2d, at 1438, quoting
Sony, 464 U.S., at 451, 104 S.Ct., at 104 S.Ct., at 793. The court reasoned
that because "the use of the copyrighted work is wholly commercial,
... we presume that a likelihood of future harm to Acuff-Rose exists."
972 F.2d, at 1438. In so doing, the court resolved the fourth factor against
2 Live Crew, just as it had the first, by applying a presumption about the
effect of commercial use, a presumption which as applied here we hold to
be error.
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. Sony's discussion of a presumption contrasts a
context of verbatim copying of the original in its entirety for commercial
purposes, with the noncommercial context of Sony itself (home copying of
television programming). In the former circumstances, what Sony said simply
makes common sense: when a commercial use amounts to mere duplication of
the entirety of an original, it clearly "supersede[s] the objects,"
Folsom v. Marsh, supra, at 348, of the original and serves as a market replacement
for it, making it likely that cognizable market harm to the original will
occur. Sony, supra, 464 U.S., at 451, 104 S.Ct., at 793. But when, on the
contrary, the second use is transformative, market substitution is at least
less certain, and market harm may not be so readily inferred. Indeed, as
to parody pure and simple, it is more likely that the new work will not
affect the market for the original in a way cognizable under this factor,
that is, by acting as a substitute for it ("supersed[ing] [its] objects").
See Leval 1125; Patry & Perlmutter 692, 697-698. This is so because
the parody and the original usually serve different market functions. Bisceglia,
ASCAP, Copyright Law Symposium, No. 34, at 23.
We do not, of course, suggest that a parody may not harm the market at all,
but when a lethal parody, like a scathing theater review, kills demand for
the original, it does not produce a harm cognizable under the Copyright
Act. Because "parody may quite legitimately aim at garroting the original,
destroying it commercially as well as artistically," B. Kaplan, An
Unhurried View of Copyright 69 (1967), the role of the courts is to distinguish
between "[b]iting criticism [that merely] suppresses demand [and] copyright
infringement[, which] usurps it." Fisher v. Dees, 794 F.2d, at 438.
This distinction between potentially remediable displacement and unremediable
disparagement is reflected in the rule that there is no protectible derivative
market for criticism. The market for potential derivative uses includes
only those that creators of original works would in general develop or license
others to develop. Yet the unlikelihood that creators of imaginative works
will license critical reviews or lampoons of their own productions removes
such uses from the very notion of a potential licensing market. "People
ask ... for criticism, but they only want praise." S. Maugham, Of Human
Bondage 241 (Penguin ed. 1992). Thus, to the extent that the opinion below
may be read to have considered harm to the market for parodies of "Oh,
Pretty Woman," see 972 F.2d, at 1439, the court erred. Accord, Fisher
v. Dees, supra, at 437; Leval 1125; Patry & Perlmutter 688- 691. [FN22]
In explaining why the law recognizes no derivative market for critical works,
including parody, we have, of course, been speaking of the later work as
if it had nothing but a critical aspect (i.e., "parody pure and simple,"
supra, at 1177). But the later work may have a more complex character, with
effects not only in the arena of criticism but also in protectible markets
for derivative works, too. In that sort of case, the law looks beyond the
criticism to the other elements of the work, as it does here. 2 Live Crew's
song comprises not only parody but also rap music, and the derivative market
for rap music is a proper focus of enquiry, see Harper & Row, supra,
471 U.S., at 568, 105 S.Ct., at 2234; Nimmer s 13.05 [B]. Evidence of substantial
harm to it would weigh against a finding of fair use,
[FN23] because the licensing of derivatives
is an important economic incentive to the creation of originals. See 17
U.S.C. s 106(2) (copyright owner has rights to derivative works). Of course,
the only harm to derivatives that need concern us, as discussed above, is
the harm of market substitution. The fact that a parody may impair the market
for derivative uses by the very effectiveness of its critical commentary
is no more relevant under copyright than the like threat to the original
market. [FN24]
Although 2 Live Crew submitted uncontroverted affidavits on the question
of market harm to the original, neither they, nor Acuff-Rose, introduced
evidence or affidavits addressing the likely effect of 2 Live Crew's parodic
rap song on the market for a nonparody, rap version of "Oh, Pretty
Woman." And while Acuff-Rose would have us find evidence of a rap market
in the very facts that 2 Live Crew recorded a rap parody of "Oh, Pretty
Woman" and another rap group sought a license to record a rap derivative,
there was no evidence that a potential rap market was harmed in any way
by 2 Live Crew's parody, rap version. The fact that 2 Live Crew's parody
sold as part of a collection of rap songs says very little about the parody's
effect on a market for a rap version of the original, either of the music
alone or of the music with its lyrics. The District Court essentially passed
on this issue, observing that Acuff-Rose is free to record "whatever
version of the original it desires," 754 F.Supp., at 1158; the Court
of Appeals went the other way by erroneous presumption. Contrary to each
treatment, it is impossible to deal with the fourth factor except by recognizing
that a silent record on an important factor bearing on fair use disentitled
the proponent of the defense, 2 Live Crew, to summary judgment. The evidentiary
hole will doubtless be plugged on remand.
It was error for the Court of Appeals to conclude that the commercial
nature of 2 Live Crew's parody of "Oh, Pretty Woman" rendered
it presumptively unfair. No such evidentiary presumption is available to
address either the first factor, the character and purpose of the use, or
the fourth, market harm, in determining whether a transformative use, such
as parody, is a fair one. The court also erred in holding that 2 Live Crew
had necessarily copied excessively from the Orbison original, considering
the parodic purpose of the use. We therefore reverse the judgment of the
Court of Appeals and remand the case for further proceedings consistent
with this opinion.
It is so ordered.
APPENDIX A TO OPINION OF THE COURT
"Oh, Pretty Woman" by Roy Orbison and William Dees
Pretty Woman, walking down the street, Pretty Woman, the kind I like to
meet, Pretty Woman, I don't believe you, you're not the truth, No one could
look as good as you Mercy Pretty Woman, won't you pardon me, Pretty Woman,
I couldn't help but see, Pretty Woman, that you look lovely as can be Are
you lonely just like me? Pretty Woman, stop a while, Pretty Woman, talk
a while, Pretty Woman give your smile to me Pretty Woman, yeah, yeah, yeah
Pretty Woman, look my way, Pretty Woman, say you'll stay with me 'Cause
I need you, I'll treat you right Come to me baby, Be mine tonight Pretty
Woman, don't walk on by, Pretty Woman, don't make me cry, Pretty Woman,
don't walk away, Hey, O.K. If that's the way it must be, O.K. I guess I'll
go on home, it's late There'll be tomorrow night, but wait! What do I see
Is she walking back to me? Yeah, she's walking back to me! Oh, Pretty Woman.
APPENDIX B TO OPINION OF THE COURT
"Pretty Woman" as Recorded by 2 Live Crew
Pretty woman walkin' down the street Pretty woman girl you look so sweet
Pretty woman you bring me down to that knee Pretty woman you make me wanna
beg please Oh, pretty woman Big hairy woman you need to shave that stuff
Big hairy woman you know I bet it's tough Big hairy woman all that hair
it ain't legit 'Cause you look like 'Cousin It' Big hairy woman Bald headed
woman girl your hair won't grow Bald headed woman you got a teeny weeny
afro Bald headed woman you know your hair could look nice Bald headed woman
first you got to roll it with rice Bald headed woman here, let me get this
hunk of biz for ya Ya know what I'm saying you look better than rice a roni
Oh bald headed woman Big hairy woman come on in And don't forget your bald
headed friend Hey pretty woman let the boys Jump in Two timin' woman girl
you know you ain't right Two timin' woman you's out with my boy last night
Two timin' woman that takes a load off my mind Two timin' woman now I know
the baby ain't mine Oh, two timin' woman Oh pretty woman
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. s 107 (1988 ed. and Supp. IV), presumes that rules will
emerge from the course of decisions. I agree that certain general principles
are now discernible 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
1178. 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 1172. 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 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
deleted).
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 s 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 1175. 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, 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 1176-77,
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 1177-78. 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 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 1173, 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." Ibid. (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
takeoff is rationalized post hoc as a parody.
With these observations, I join the opinion of the Court.
___________
FN1. 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.
FN2. 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.
FN3. 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.
FN4. 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. s 101. 2 Live Crew concedes that it is not entitled to
a compulsory license under s 115 because its arrangement changes "the
basic melody or fundamental character" of the original. s 115(a)(2).
FN5. The exclusion
of facts and ideas from copyright protection serves that goal as well. See
s 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,
Inc. v. Rural Telephone Service Co., 499 U.S. 340, 359, 111 S.Ct. 1282,
1294, 113 L.Ed.2d 358 (1991) ("[F]acts contained in existing works
may be freely copied"); Harper & Row, Publishers, Inc. v. Nation
Enterprises, 471 U.S. 539, 547, 105 S.Ct. 2218, 2223, 85 L.Ed.2d 588 (1985)
(copyright owner's rights exclude facts and ideas, and fair use).
FN6. An Act for
the Encouragement of Learning, 8 Anne, ch. 19.
FN7. Patry 27,
citing Lawrence v. Dana, 15 F.Cas. 26, 60 (No. 8,136) (CCD Mass.1869).
FN8. Leval 1105.
For a historical account of the development of the fair use doctrine, see
Patry 1-64.
FN9. 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").
FN10. 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. s 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,
110 S.Ct. 1750, 109 L.Ed.2d 184 (1990).
FN11. The obvious
statutory exception to this focus on transformative uses is the straight
reproduction of multiple copies for classroom distribution.
FN12. American
Heritage Dictionary 1317 (3d ed. 1992).
FN13. 11 Oxford
English Dictionary 247 (2d ed. 1989).
FN14. A parody
that more loosely targets an original than the parody presented here may
still be sufficiently aimed at an original work to 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 at 1177-1179, 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.
FN15. Satire has
been defined as a work "in which prevalent follies or vices are assailed
with ridicule," 14 Oxford English Dictionary, supra, at 500, or are
"attacked through irony, derision, or wit," American Heritage
Dictionary, supra, at 1604.
FN16. The only
further judgment, indeed, that a court may pass on a 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 1175-79, discussing factors
three and four.
FN17. We note in
passing that 2 Live Crew need not label their 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.
FN18. Finally,
regardless of the weight one might place on the alleged infringer's state
of mind, compare Harper & Row, 471 U.S., at 562, 105 S.Ct., at 2231
(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).
FN19. 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.
FN20. Harper &
Row, 471 U.S., at 561, 105 S.Ct., at 2230; H.R.Rep. No. 102-836, p. 3, n.
3 (1992).
FN21. 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 Corp. of America v.
Universal City Studios, Inc., 464 U.S. 417, 455, n. 40, 104 S.Ct. 774, 795,
n. 40, 78 L.Ed.2d 574 (1984). 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.
FN22. 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.
FN23. See Nimmer
s 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).
FN24. 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.