Assembly (Concrete Erudition)



thing 000813 (Pretty Woman)

In 1964, Roy Orbison and William Dees released the song Oh, Pretty Woman. The lyrics of the song tell the story of a man who sees a pretty woman walking by. The record ultimately sold seven million copies and became a pop music classic. The copyrights of the song were assigned to Acuff-Rose Music. On July 15, 1989, Luther Campbell, Christopher Wongwon, Mark Ross, and David Hobbs, collectively known as 2 Live Crew, released the song Pretty Woman, on their third record album, tape and compact disc, entitled As Nasty As They Wanna Be. 2 Live Crew is a hip hop group from Miami, Florida, known for their sexually explicit rap lyrics. The song is on side B, between Me So Horny and My Seven Bizzos. The compact disc cover and compact disc itself acknowledge Orbison and Dees as the authors of Oh, Pretty Woman and Acuff-Rose as the publisher.On July 5, 1989, 2 Live Crew’s manager, Linda Fine, wrote to Gary Teifer of Opryland and Acuff-Rose. She informed Teifer that 2 Live Crew was going to parody Oh, Pretty Woman. Teifer responded on July 17, denying the license request and informing Fine that “we cannot permit the use of a parody of Oh, Pretty Woman”. On June 18, 1990, after nearly a quarter of a million copies of the recording of Pretty Woman had been sold Acuff-Rose, sued 2 Live Crew and their record company, Luke Skyywalker Records, for copyright infringement. 2 Live Crew argued that Pretty Woman is a parody that constitutes fair use. On January 14, 1991, the court case Acuff Rose Music v. Campbell took place at the United States District Court Tennessee in Nashville. Judge Thomas Wiseman held that:

Fair Use. [...] 1. Purpose and Character of the Use. [...] Obviously, 2 Live Crew’s song is included on a commercially distributed record album sold for the purpose of making a profit. [...] [I]t is plain that 2 Live Crew also desired to parody the original version of Oh, Pretty Woman. [...] [B]ased on a comparison of the two songs and the affidavits provided to the Court, it is apparent that 2 Live Crew has created a comic parody of Oh, Pretty Woman. The theme, content and style of the new version are different than the original. [...] The parody also employs a number of musical devices that exaggerate the original and help to create a comic effect. [...] 2. Nature of the Copyrighted Work. [...] Since Oh, Pretty Woman is a published work, with creative roots, this factor weighs in favor of [Acuff Rose Music]. [...] 3. Amount of Quotation. [...] In this case, 2 Live Crew has not mimicked so much of Oh, Pretty Woman that it runs afoul of the substantiality factor. [...] [T]he relative brevity of the copying, it appropriates no more from the original than is necessary to accomplish reasonably its parodic purpose. [...] 4. Effect on the Market. [...] [I]t is extremely unlikely that 2 Live Crew’s song could adversely affect the market for the original. The intended audience for the two songs is entirely different. [...] Having applied s 107’s four factors, the Court finds that they weigh in favor of [Campbell].

The court concluded that 2 Live Crew’s rendition of Pretty Woman was a parody of Oh, Pretty Woman and constituted fair use. Accuff-Rose appealed. On August 17, 1992, the court case Acuff Rose Music v. Campbell took place at the United States Court of Appeals. Judge Charles Joiner held that:

[W]e proceed to determine whether the calculus of section 107 results in a determination of fair use. [...] Purpose and Character of Use. [...] [I]n analyzing the purpose and character of 2 Live Crew’s use of the copyrighted song, the facts in the record require that we start from the position that the use is unfair. [...] Although in this case we do not set aside the district court’s conclusion that 2 Live Crew’s song is a criticism in the nature of a parody in the popular sense, we nevertheless find that the district court erred in the process of determining that the criticism constituted a fair use of the copyrighted work. We find that the admittedly commercial nature of the derivative work-the purpose of the work being no less important than its character in the Act’s formulation-requires the conclusion that the first factor weighs against a finding of fair use. [...] Nature of Copyrighted Work. [...] The status of Oh, Pretty Woman as a creative work is not contested. [...] The record amply supports a finding in favor of Acuff-Rose on this factor. [...] Portion Used. [...] Acuff-Rose’s musicologist stated that the riff was probably sampled from the original, that is, simply recorded verbatim and then mixed with 2 Live Crew’s additions. [...] 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. [...] Effect on Potential Market. [...] In the instant case, the use of the copyrighted work is wholly commercial, so that we presume that a likelihood of future harm to Acuff-Rose exists.

The court reversed, remanded and concluded that the district court erred in granting summary judgment to Campbell. The four factors didn’t support the conclusion of fair use. Campbell appealed. On March 7, 1994, the court case Acuff Rose Music v. Campbell took place at the United States Supreme Court. Justice David Souter held that:

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. [...] 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.

The Supreme Court concluded that the commercial character of the song parody did not create presumption against fair use.