2 Live Crew
Campbell v. Acuff-Rose Music, Inc. is probably the seminal
case for the modern application of the fair use doctrine. After years of
neglect languishing in the back waters of intellectual property, the fair use
doctrine received the spotlight from the Supreme Court in 1994. The lightning
rod was 2 Live Crew (no stranger to Constitutional controversy) and their
allegedly parodic use of the "Pretty Woman" song. Hear what Luke
Skywalker (aka Luther Campbell) had to say about the Supreme Court's decision:
mp3 sample (5 sec - 42630 Bytes)
Audio Samples from "Oh, Pretty Woman" as Recorded by Roy Orbison
Lyrics - "Oh, Pretty Woman" by Roy Orbison and William Dees
In 1964, Roy Orbison and William Dees wrote a rock ballad called "Oh,
Pretty Woman", about the same time that the Chiffons were swinging with
"He's So Fine". In July of
1989, the rap group 2 Live Crew released the album "As Clean As They Wanna
Be", containing a collection of their songs that don't contain the amount
of profanity and obscenity normally associated with a 2 Live Crew album. One of
these clean songs is "Pretty Woman". With this song, 2 Live Crew
basically took the distinctive bass riff from the original Orbison song and
changed the lyrics in true Crew style. Orbison and Dees are credited on the
Crew album. Although the music is certainly identifiable as the original
Orbison song, it is not unchanged. Also in true Crew style, the music contains
interposed scraper noises, overlays of solos in different keys, and an altered
Coincidentally, shortly after the 2 Live Crew version came out, the motion picture "Pretty Woman" was released. Interestingly, the soundtrack featured the Roy Orbison version of the song, but the movie took the 2 Live Crew version of the title. Consequently, the movie producers were required to license the Orbison version of the song, but since titles cannot be copyrighted, the producers would not be liable to either Orbison or 2 Live Crew for the use of the title "Pretty Woman" for the title of the movie.
Also of interest is the fact that the movie poster for the film itself became a source of sampling controversy. As may or may not be obvious from the picture above, the face belongs to the star Julia Roberts, but the body belongs to a nameless body double. With the widespread use of Photoshop and other digital manipulators, photographs can longer be considered integrated unique works. In the above case, getting a release from Richard Gere and Julia Roberts may not be sufficient protection for commercial republication without the additional release from the body double.
One of the critical factors that the court looked at was whether or not the 2 Live Crew version was likely to dilute the market for the original Orbison version. The court seemed to think that the buying audiences for each version were substantively different. Do you think the following songs are targeted at different audiences?
In looking at 2 Live Crew's use of the "Pretty Woman" song, the Supreme Court successfully looked past the previous fair use decisions which basically stated that any commercial use was presumptively infringement.
"in 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)
As notable for its appearance in fair use cases as for its use of commas, the opinion set forth in Emerson was used as an anchor by the court to the return to the original precepts of the framers of the Constitution.
"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 supercede the objects, of the original work."
Folsom v. Marsh, 9 F.Cas. 342, 348 (No. 4,901) (CCD Mass. 1841)
Most importantly, the court went back and gave full weight to each of the
individual factors of the fair use test as
promulgated in the Copyright Act of 1976. Instead of dismissing the Crew's
claim on the basis that they had used the appropriated material for commercial
gain, the court looked at the other factors of permissible fair use and
determined that parody was indeed protected fair use, even though the
perpetrators gained financially .
Audio Samples from "Oh, Pretty Woman" -
Audio Samples from "Pretty Woman" -
"Oh, Pretty Woman" -
"Pretty Woman" -