U.S. SUPREME COURT DECIDES 2 LIVE CREW PARODY CASE

Roy Orbison wrote the song Oh Pretty Woman in 1964, and it became a musical and commercial success. In 1989, Luther Cambell, of the rap group 2 Live Crew, used Orbison's musical "hook" and the first lines of the song as the basis for a rap parody version. The 2 Live Crew version focused on a street hooker as the "pretty woman," rather than Orbison's purely idyllic "pretty woman."

Orbison had assigned his copyright to Acuff-Rose, who sued Cambell for copyright infringement. The copyright statute grants to the copyright holder the exclusive rights to perform the work and prepare "derivative works," such as new versions or adaptations of lyrics and music. Acuff-Rose argued that Cambell and 2 Live Crew infringed on the copyright by using the original version to write the rap rendition of the song. 2 Live Crew defended by arguing that their use was a "parody," protected by the "fair use" doctrine.

The trial court agreed with 2 Live Crew, but the Sixth Circuit Court of Appeals reversed, agreeing with Acuff-Rose. The U.S. Supreme Court reversed the Court of Appeals, holding that the parody could qualify as fair use. Section 107 of the copyright statute calls for a court to examine four factors in assessing whether fair use exists.

• The purpose of the use, including whether it is a commercial use;
• The nature of the original work;
• How much of the original work was used and what portion of the work;
• The effect of the copying on the market for the original work.

The Sixth Circuit held that 2 Live Crew's rap version was not "fair use" because it was predominantly a commercial use -- a recording sold for profit. The Supreme Court held that commercial use is not determinative of the fair use analysis, and that a use may still be "fair" under copyright law, even if it is for financial gain. The court said that all four factors are to be afforded equal weight and noted that even traditional forms of fair use, such as news reporting and teaching, are generally for profit.

The Acuff-Rose opinion may open the door for the use of components of a copyrighted work as parody, even when the parody is for profit. A ready example might be the use of icons, lyrics, or music in a computer or video game which pokes fun at the underlying work. Multimedia programming may shape the contours of this new case.