*1 CAMPBELL, SKYYWALKER, ACUFF- aka et al.
ROSE INC. MUSIC, 9,1993 Argued No. 92-1292. November March Decided *2 Souter, J., Kennedy, J., opinion delivered the for unanimous Court. *3 post, p. 596. concurring opinion, filed a
Bruce S. Rogow the cause for With argued petitioners. him on the briefs was Alan Mark Turk. S. Rosdeitcher
Sidney the cause for argued respondent. With him on the brief were Peter L. and Stuart M. Felcher Cobert.* delivered the opinion Court.
Justice Souter We are called to decide whether 2 upon Live Crew’s com- mercial of parody Roy Woman,” Orbison’s “Oh, song, Pretty *Briefs of amici curiae urging reversal were for filed the American Reich, by Steven F. Civil Liberties Union Shapiro, Marjorie Steven R. Heins, Powell; John A and Capitol Inc., Steps Production, by for et al. Lane; William C. for the Harvard Lampoon, Inc., by Robert H. Loeffier Band; and Jonathan Friedman; for the PEN Leon by American Center and Berry for C. by Robert et al. C. Yen. Alfred amici curiae Briefs of urging affirmance were filed for National Music Association, Inc., Publishers’ al. by Marvin E. Frankel Mi- et and Oberman; chael S. for Kaye, by and Fred Stephen Rackow Ebb et al. Sims, Charles S. Baumgarten. Jon A and Briefs of amici curiae were filed for Home Box Office et al. Daniel by M. Waggoner, DeVore, P. Cameron GeorgeVradenburg, Bogin, Bonnie and Bros, Cotton; Richard by Cary H. Sherman and Robert for Warner Alan Garrett. abe fair use within the Act meaning Copyright (1988 IV). 1976,17 S. Although U. C. 107 ed. and Supp. 2 Live
the District Court for granted summary judgment Crew, reversed, holding the Court of defense Appeals fair use barred commercial character and song’s excessive a Because we hold that com- borrowing. parody’s element mercial character one to a fair weighed and that insufficient consideration was enquiry, given the nature we degree weighing copying, reverse remand.
I 1964, In Orbison and William Roy Dees wrote rock ballad “Oh, called Woman” and Pretty their it to assigned rights infra, Music, respondent A, Acuff-Rose Inc. See Appendix Acuff-Rose 594. for registered song protection.
Petitioners Luther R. Campbell, Wongwon, Christopher Ross, and Mark David Hobbs are known as collectively Crew, Live music 1989, In popular rap group.1 Campbell wrote a entitled which “Pretty Woman,” he later de- scribed in an intended, affidavit as “through comical lyrics, to satirize the work . .” . . App. Pet. Cert. 80a. July On 2 Live Crew’s manager informed Acuff-Rose that Live Crew had written a “Oh, *4 Woman,” that Pretty would all they afford credit for owner- ship and of the to authorship original Acuff-Rose, song Dees, and Orbison, and that were to they a for willing fee pay use wished to make of they it. Enclosed with the letter were a of the copy and a 2 lyrics of Live recording Crew’s infra, at 595. Acuff-Rose’s agent song. B, See Appendix refused “I permission, that am of stating aware the success 1Rap has been “style defined as a of black popular American music con sisting improvised of rhymes performed rhythmic to a accompaniment.” (1988). The Encyclopedia Norton/Grove Concise of Music 613 2 Live plays music,” Crew regional, style “[b]ass a hip-hop rap of from the Lib erty City Miami, area of Florida. Brief for Petitioners 34.
573 2 I Crews’, ‘The Live but must inform that you enjoyed by ‘Oh, of we cannot the use a permit Pretty ” Nonetheless, Woman.’ to Pet. for June App. Cert. 85a. Live 1989,2 records, Crew released cassette July tapes, discs of Woman” a collection compact “Pretty songs entitled “As Clean As Wanna albums Be.” The They Woman” discs authors as compact identify “Pretty Orbison and Dees and its as Acuff-Rose. publisher later,
Almost a a of a after million year nearly quarter sold, had been Acuff-Rose sued 2 Live copies recording record Records, Crew and its Luke company, Skyywalker The District Court sum- infringement. granted for 2 Crew,3 Live the commer- mary judgment reasoning of 2 cial Live use; Crew’s was no bar to fair purpose song that 2 Live version Crew’s was which de- “quickly words, into on generates play substituting predictable lyr- ics with ones” to shocking show “how bland and banal the is; Orbison that 2 Live Crew had taken no more song” than was necessary “conjure order up” it; and that it was that 2 Live Crew’s “extremely unlikely could song affect the market adversely for the original.” (MD 1150, 1991). 1154-1155, 1157-1158 Supp. Tenn. The District Court these factors and held that 2 weighed Id., Live Crew’s made fair song Orbison’s original. at 1158-1159.
The Court Appeals for the Sixth Circuit reversed and (1992). 972 F. 2d remanded. it as- Although sumed for the of its that 2 purpose Live Crew’s opinion parties argue The timing. about the 2 Live Crew contends that album July 15, was released on and the District so Court held. 754 (MD F. Supp. 1991). Tenn. The Court of Appeals states that Campbell’s puts June, affidavit date in release and chooses that date. (CA6 1429,1432 1992). 972 F 2d find timing request We irrele 18, infra, vant for purposes of this enquiry. See n. discussing good faith. 32 Live Crew’s motion to dismiss was converted to a motion for sum mary judgment. against motion, Acuff-Rose defended but filed no cross-motion.
674 original, parody Appeals a Orbison the Court of was thought emphasis put the Court had District too little on the “every presumptively use fact that commercial ... .. . City Sony Corp. unfair,” America Studios, v. Universal (1984), Inc., 464 451 and it held that “the U. S. admit tedly parody “requires commercial nature” the the conclu that the first four factors under sion” relevant the statute weighs against finding 2d, of fair use. 972 F. at 1435, 1437. Appeals by “taking Next, that, the Court determined the original making heart of it the heart of a new work,” qualitatively, had, 2 Live Crew Id., taken too much. at 1438. Finally, potential noting after that the effect on the market (and works) for the the market for derivative is “un doubtedly single important most element of fair use,” Enterprises, Publishers, Inc. v. Nation 471 (1985), Appeals U. S. 566 Court of faulted the Dis “refus[ing] indulge presumption” Court for trict to purposes analysis “harm for the fair has been estab presumption attaching lished to commercial uses.” 2d, 972 F. In sum, 1438-1439. the court concluded that “blatantly purpose prevents its commercial . . . this being from a fair Id., use.” at 1439. granted (1993),
We
certiorari,
It is uncontested here that Live Crew’s would be an infringement rights Pretty of Acuff-Rose’s “Oh, Woman,” (1988 Copyright under the Act of 1976, C. U. S. ed. IV), Supp. finding through parody.4 but of fair use provides part: Section 106 “Subject through 120, to sections 107 the owner of under this has title rights any exclusive to do and to authorize of the following: “(1) reproduce copyrighted copies phonorecords; work in “(2) prepare derivative works upon copyrighted work; based
575 From the infancy copyright protection, some opportunity for fair materials has been neces- copyrighted thought sary to fulfill copyright’s very purpose, promote “[t]o Arts____” of Science and useful Progress Const., Art. U. S. I, §8, cl. For as truth, 8.5 Justice in Story explained, “[i]n literature, art, are, be, science and in if few, there and can which in sense, an abstract and any, things, are new strictly throughout. Every literature, book in science and art, borrows, must borrow, use much necessarily which was well known and used before.” Emerson Da- v. vies,. (No. (CCD 615, 1845). 8 F. 619 4,436) Cas. Mass. Simi- larly, Lord Ellenborough inherent tension in expressed the need simultaneously protect material and copyrighted to allow to build wrote, others it when he “while I shall upon think bound to secure myself man in the every enjoyment of his one must not manacles copy-right, science.” put upon “(3) copies phonorecords copyrighted to distribute or work to public by rental, or lease, sale other transfer of ownership, or or lending ... A derivative upon work is defined as one “based or preexisting one more
works, translation, such as a arrangement, dramatization, musical fiction- alization, picture version, motion recording, sound reproduction, art abridgment, condensation, any or other may form which a work be re- cast, transformed, adapted. revisions, or A consisting work of editorial annotations, elaborations, which, whole, or other repre- modifications as a an original sent authorship, is a ‘derivative work.’” 17 U. S. C. §101. 2 Live Crew concedes it is not entitled compulsory to a license §115
under arrangement because its changes melody “the basic or funda- 115(a)(2). mental original. § character” of the 5The exclusion facts and ideas from copyright protection serves that goal 102(b) (“In as well. See no copyright case does protection for an original work of authorship any idea, procedure, extend to process, system, operation, method of concept, principle, .”); discovery Feist Publi . . cations, Telephone Co., Inc. v. Rural Service 340, (1991) 499 U. S. 359 (“[F]acts in existing contained freely works copied”); Harper & Row, Publishers, Inc. v. Nation Enterprises, (1985) 471 U. S. (copyright rights owner’s ideas, use). exclude facts and and fair Carey Kearsley, 168, 170, Esp. Eng. Rep. (K. 1803). In B. under the cases Statute brought 1710,6 of Anne of courts held that in some English instances “fair would not an author’s abridgements” infringe rights, see W. The Fair Patry, Use Law 6-17 Privilege Copyright (1985) (hereinafter Leval, Toward Patry); a Fair Use Stand- (1990) (hereinafter ard, 103 Harv. L. Rev. 1105 Leval), and *7 the First although Congress enacted our initial copyright of statute, 31,1790,1 Act May Stat. without any explicit to “fair use,” reference as it later came known,7 to be the doctrine was the recognized by American courts nonetheless. Marsh,
In Folsom v.
(No.
(CCD
4,901)
Ҥ 107. Limitations on exclusive Fair use rights: of
“Notwithstanding 106 and provisions sections 106A, fair use a work, of copyrighted such including use by reproduction or copies phonorecords or by any other means specified section, for such purposes as criticism, (includ- comment, news reporting, teaching ing for multiple classroom copies use), or scholarship, research, not an of infringement In copyright. deter- whether the mining use made of a work in any particular 6An Act for the Encouragement of Learning, Anne, ch. 19. 7 Patry 27, citing Dana, Lawrence (No. (CCD 8,136) 15 F. Cas. 1869). Mass. 8Leval 1105. For a historical account of the development of the fair use doctrine, Patry see 1-64. to be shall
case is fair use factors considered include—
“(1) the and character of the use, including purpose whether such use is a commercial nature or is for non- educational profit purposes;
“(2) work; the nature the copyrighted “(3) substantiality the amount and used portion as a whole; relation copyrighted “(4) the upon effect market potential or value work. copyrighted “The fact that a work is shall itself bar unpublished if fair use such is made consid- finding finding upon (1988 eration all the above S. factors.” U. C. IV). ed. and Supp. § 107 “to meant restate the doc-
Congress present judicial trine of fair use, narrow, not to it in any change, enlarge way” intended that courts continue the tra- common-law *8 dition of fair use adjudication. 94-1476, H. R. No. 66 Rep. p. (hereinafter (1976) House 94-473, S. No. 62 Report); Rep. p. (hereinafter (1975) Senate The fair use doctrine Report). thus “permits [and courts to avoid requires] rigid application when, the copyright occasion, statute on it would stifle the very creativity which that law is to foster.” designed (1990) Abend, (internal Stewart v. 495 207, U. S. 236 quota- omitted). tion marks and citation
The task is not to be with simplified rules, for bright-line the statute, like the doctrine it calls recognizes, for case-by- case analysis. Row, 471 Harper S., & U. 560; 464 Sony, S., 448, U. 31; and n. House Report, 65-66; Re- pp. Senate 62. port, p. The text the terms employs and “including” “such as” in the preamble to indicate paragraph the “illustra- tive and not limitative” function of § the examples 101; given, see & 561, which supra, thus provide general guidance about the sorts of that courts and copying most had found to be fair
Congress commonly uses.9 Nor the four may statutory isolation, factors be treated in one from another. All are to be and the results explored, weighed together, light purposes copyright. Leval 1110-1111; Patry Pérlmutter, See Fair Mis- Use Profit, construed: Presumptions, Cardozo Parody, (1993) (hereinafter Arts & Ent. L. J. 685-687 Patry & Perlmutter).10
A
The first factor in a fair use
is “the
enquiry
purpose
use,
character of the
whether such use is of a com-
including
mercial nature or is for
educational
nonprofit
purposes.”
107(1).
§
This factor draws on Justice
formulation,
Story’s
made.” Folsom “the nature and
of the selections
objects
Marsh,
at 348. The
here
enquiry
may
guided by
in the
examples given
preamble
§107,
to
looking
whether the use is for
criticism,
comment, or news report-
(“[W]hether
Report, p.
See Senate
a use referred to in the first
sentence of
particular
section 107 is a fair use in a
depend upon
case will
factors”).
application
of the determinative
10Because the
enquiry
requires
fair use
often
questions
judg
close
permissible
ment as to the extent of
borrowing in
involving parodies
cases
(or
works),
may
other critical
courts
also wish to bear in mind
goals
copyright law,
“to stimulate the
publication
creation and
matter,”
edifying
always
Leval
are not
by automatically
best served
granting injunctive
parodists
relief when
gone beyond
are found to have
502(a) (court
the bounds of fair use. See 17 U. S.
“may
C.
grant...
...
injunctions
on such terms as it
deem reasonable
prevent
or restrain
infringement”)
(while
(emphasis added); Leval
majority
in the “vast
cases,
injunctive]
remedy
justified
[an
because
infringements
most
are
simple piracy,” such
apart
cases are “worlds
from many
raising
of those
*9
reasonable
may
contentions of fair use” where “there
be a strong public
publication
interest in the
secondary
[and] the
own
may
er’s interest
adequately protected by
an
damages
award of
infringement
found”);
whatever
MCA, Inc.,
is
Abend v.
863 F. 2d
(CA9 1988)
(finding “special circumstances” that would
“great
cause
injustice” to
“public
defendants and
injury”
injunction
issue),
were
aff’d
(1990).
Abend,
sub nom. Stewart v.
This Court has
once before even considered whether
parody may
opinion
use,
be fair
and that time issued no
be-
equal
Benny
cause
Court’s
Inc.,
division.
Loew’s
(CA9 1956),
239 F. 2d aff’d sub nom. Columbia Broad-
(1958).
casting System,
Inc.,
Inc. v. Loew’s
(SDNY), aff’d,
The fact that can claim for some legitimacy appro- not, does tell course, either or priation parodist judge much about where to draw the Like line. a book review material criticized, or quoting copyrighted parody may use, not be fair may and petitioners’ any suggestion pa- rodie use is fair has no more presumptively justification or law fact than the claim that equally hopeful any news fair, should be see reporting presumed S., 471 U. at 561. The Act an has no hint of evidentiary pref- erence for over their victims, and no workable parodists pre- sumption for could take account the fact that par- often ody shades into satire when is society lampooned its creative or through artifacts, that a work contain may both parodie nonparodic elements. Accordingly, parody, like use, other has to its any work the relevant way through factors, and be case judged case, in light ends of law.
Here, the District held, Court and the Court of Appeals assumed, that 2 Live Crew’s “Pretty Woman” contains par- trast, when there is or substitution, little no risk of market whether be- large cause of work, extent of transformation of the earlier the new market, work’s minimal distribution in the the small extent which it factors, borrows an original, from or taking parodie other aim at an origi- nal is a analysis, less critical factor and looser forms of parody may use, may found be fair justification as satire with lesser for the borrowing required. than would otherwise be 15Satire has been defined as a “in prevalent which follies or vices ridicule,” are assailed English with Dictionary, Oxford or are through irony, derision, wit,” “attacked Heritage American Diction ary, supra, at 1604. on and
ody, work, what- commenting criticizing ever it have to society about As the Dis- say large. remarked, trict 2 Live Court words of Crew’s song copy line, first but then into original’s “quickly degenerate] words, on with play substituting lyrics predictable shocking ones how derisively [that] ... bland and banal demonstrate] the Orbison seems to them.” at 1155 Supp., omitted). (footnote below, Judge Nelson, came to dissenting conclusion, the same that the Live Crew song “was clearly intended to ridicule the white-bread and “reminds original” congress us that sexual with nameless streetwalkers stuff romance and is not necessarily with- necessarily *12 (there several) its consequences. out The singers are have the same on their minds as did the thing man with the lonely but voice, nasal here there is no of hint wine and roses.” 2d, 972 1442. the Although majority below had diffi- criticism of culty discerning any the in 2 Live original Crew’s assumed for song, it of its purposes that there opinion was Id., 1435-1436, some. and n. 8.
We have less difficulty that critical element in 2 finding Live than Crew’s the of song Court did, Appeals although found it we will not take having the further of evaluat- step its The quality. threshold ing when question fair use is raised in defense of is a parody whether parodie character may reasonably perceived.16 Whether, going beyond that, is in good taste or bad does not and should not matter to fair use. As Justice Holmes explained, would “[i]t be a dangerous for undertaking trained persons only to the law to constitute themselves final judges worth of [a work], outside of the narrowest and most obvious At limits. 16 judgment, The indeed, further may pass that a court on a work goes to an of parodie assessment whether the slight element great, or copying and the small or extensive parodie in relation to element, the for a slight parodie work with element and copying extensive will be more likely to merely “supersede objects” infra, original. of See 586-594, discussing factors three four. and the one extreme some works would be sure to miss genius Their make them appreciation. very novelty repul- would sive until the had learned the new in which public language their author Bleistein v. Donaldson spoke.” Lithographing (1903) (circus Co., 188 U. S. have posters cf. Yankee Inc. Publishing v. News America protection); (SDNY 1992) Inc., 809 F. Publishing, Supp. (Leval, J.) (“First Amendment do not protections to those apply only who whose are clearly, funny, and whose speak jokes paro- (trademark succeed”) case). dies
While we a rank ele- might assign high parodie here, ment we think it fair to that Live Crew’s say could be reasonably as on the perceived commenting original it, some Live Crew criticizing degree. juxtaposes n the romantic of a man whose musings true, comes fantasy with taunts, sex, a a degrading demand bawdy sigh of relief from paternal The later words can responsibility. be taken as a comment on naivete of an earlier as day, its sentiment rejection that ignores of street life ugliness it debasement signifies. It is this joinder reference and ridicule that marks off author’s choice from the other of comment types and criticism that traditionally have had claim to fair *13 as protection transformative works.17 The Court of Appeals, however, cut the short immediately into 2 enquiry Live Crew’s fair by use claim its confining treatment of the first factor to one essentially fact, relevant the commercial nature of the use. The court then inflated the of this significance fact by a osten- applying presumption
17We note in passing that Live Crew need album, not label their whole or even this a song, parody in order to claim fair protection, nor should 2 Live Crew penalized for being parodie this essay. its first Parody goals serves its not, whether labeled or and is no require there reason to (or to state the obvious even reasonably perceived). See Patry & Perlmutter 716-717. Sony, from
sibly culled that use of “every copy- commercial is Sony, righted material . unfair . . . .” presumptively . . S., 464 U. at 451. In to dispositive giving virtually weight the commercial nature of of Court Appeals erred.
The of the statute makes language clear that commer- cial or educational a of work one nonprofit purpose element of the factor first into its and char- enquiry purpose 107(1) acter. term Section uses the “including” begin clause dependent use, to commercial referring main clause of a broader into speaks investigation “purpose Row, As & character.” we explained Harper Congress resisted to narrow the of this en- attempts ambit traditional of fair quiry adopting categories use, and presumptively it courts to of urged breadth their preserve traditionally of ample view the universe of S., relevant evidence. 471 U. 561; House 66. Report, p. mere fact that Accordingly, a use is educational and for does not it profit insulate from a finding infringement, more than the commer- any cial character a use bars If, indeed, a finding fairness. commerciality carried force presumptive against finding fairness, the presumption would swallow all of the nearly illustrative uses listed in the preamble 107, §of paragraph news including reporting, comment, criticism, teaching, and research, since scholarship, these “are activities gener- conducted for ally this profit country.” at 592 (Brennan, J., dissenting). could not Congress have intended such a rule, which is not certainly inferable from the cases, common-law as did arising they from the world of letters in which Samuel Johnson could pronounce man but blockhead “[n]o wrote, ever for except (G. money.” 1934). Life Boswell’s of Johnson Hill ed. Sony itself called no hard evidentiary presumption. There, we the need for emphasized a “sensitive balancing interests,” 464 atS., U. n. noted that had Congress “eschewed a rigid, bright-line id., use,” approach fair
585 nonprofit 31, 449, n. and stated that the commercial or educa id., 448-449, tional character a work is “not at conclusive,” “weighed along other[s] rather a fact to but be with fair 66). (quoting p. Report, id., 449, decisions,” use n. 32 House Appeals’s Sony The Court of elevation of one sentence from per Sony a se rule to thus runs as much counter to itself as long adjudication. to common-law tradition of fair use explained Harper Sony as we Rather, Row, & stands for proposition publication that the “fact that a was commer opposed nonprofit separate cial as to is a factor that tends to weigh against finding S., a of fair 471 use.” U. at 562. But tendency all, that is and the fact that even the force of that vary against will with the context is a further reason elevat ing commerciality presumptive significance. to hard The example, copyrighted prod use, for of a to a advertise indulgence uct, even in a will be entitled to less enquiry under the first factor of the fair use than the sale of performed single sake, a for own its let alone a one generally Patry time students in school. See & Perlmut 679-680; Dees, ter Fisher 2d, 437; v. 794 F. Maxtone- (CA2 1986);Sega v. Burtchaell, Graham 803 2d 1253, 1262 F. Enterprises Accolade, Inc., Ltd. v. 977 2d 1510, F. 1522 (CA9 1992).18 18Finally, regardless of the weight might place alleged one on the in
fringer’s mind, (fair compare state of S., U. use presupposes good dealing) faith fair (quotation omitted), marks with Marsh, (No. Folsom v. (CCD 1841) 4,901) Cas. (good Mass. faith not finding does bar a of infringement); (good Leval 1126-1127 faith to analysis), irrelevant fair use reject argument we Acuff-Rose’s that 2 Live request permission Crew’s to use the weighed should be against finding a good of fair use, use. Even if faith were central to fair 2 Live necessarily Crew’s actions do suggest they believed their use; version was not fair offer simply have been in good- made a faith litigation. effort fair, avoid this If the otherwise then no permission need sought granted. Thus, being permission denied use work weigh against does not fair use. See Fisher finding Dees, (CA9 1986). 794 F. 2d *15 586
B The second “the nature of statutory factor, the copy- work,” 107(2), on Story’s draws Justice righted expression, Marsh, the materials used.” Folsom v. “value of 9 F. at This Cas., 348. factor calls for that some recognition are works closer to the core of intended copyright protection others, than with that fair use is diffi- more consequence cult establish when to the former works are See, copied. Abend, e. Stewart v. g., S., 495 at U. 237-238 fic- (contrasting Row, & short with works); tional factual story 471 at S.,U. 563-564 memoir (contrasting soon-to-be-published (con- with at published speech); Sony, S., 464 U. 455, n. 40 motion broadcasts); Feist, with news trasting pictures S.,U. at 348-351 creative (contrasting works with bare fac- tual M. compilations); Nimmer, Nimmer & D. Nimmer on (1993) (hereinafter Copyright §13.05[A][2] Nimmer); Leval We with 1116. both the agree District Court and the Court of that the Orbison Appeals original’s creative expression for dissemination falls within of public the core the copyright’s protective purposes. 1155-1156; Supp., 2d, 972 F. fact, at 1437. This however, is not much this help case, or ever likely help much in the fair separating use sheep from the in a infringing goats case, since parodies almost invariably copy publicly known, works. expressive
C third The factor asks whether “the amount and substanti- ality used in portion relation to the copyrighted 107(3) whole,” § as a (or, in Justice words, Story’s “the quan- and value of the Folsom tity materials Marsh, used,” 348) supra, are reasonable in relation to the of purpose Here, copying. attention turns to of persuasiveness a parodist’s justification for the particular done, copying the enquiry will harken back to the first the statutory factors, for, as in cases, we prior recognize that the extent of permissible varies with copying purpose character Sony, supra, (reproduction
of the use. See at 449-450 ordinary militating entire work “does not effect have its against finding videotaping fair as home use” televi- (“[E]ven programs); Harper sion sub- quotations might qualify as stantial fair use a review aof published speech” work or a of a news account but memoir). scoop soon-to-be-published bearing of a The facts *16 on this factor will also to address the fourth, tend reveal- ing degree parody may the to the which serve as a market original potentially substitute for the or licensed derivatives. See Leval 1123. parodie song’s purpose
The District considered the Court finding helped in that 2 Live had Crew not themselves over- Supp., Appeals much. 754 F. at 1156-1157. The Court of disagreed, stating may inappropriate “[w]hile that it not be necessary, copying to find that no more taken was than the qualitatively taking was substantial. . . We conclude that . original making the heart of the and it the heart of a new purloin portion to work was a substantial essence original.” 2d, at 1438. Appeals The Court of is of course correct that this factor thought only quantity for calls about the of the materials quality used, but importance, about their In too. example, the Nation had taken some signaled words out of President memoirs, Ford’s but we significance quotations finding in them to amount part to “the likely heart of book,” to be most news- worthy important licensing S., serialization. U. (internal omitted). quotation 564-566, at marks We also agree Appeals with the Court of that whether “a substantial portion infringing copied work was verbatim” from copyrighted question, work is a id., relevant see for it reveal a dearth of transformative or character purpose greater under the first factor, or a likelihood of mar- ket harm composed under primarily fourth; a work of an original, particularly heart, its changed, with little added or use, is more to be a likely merely de- superseding fulfilling mand for the original. we
Where with the court below is in part company apply- to ing guides these and in in the particular parody before us. difficult case. Parody presents Parody’s humor, comment, event its from any necessarily springs allusion to its recognizable object distorted imita- through art tion. Its lies the tension between known original and its twin. When takes aim at a parodie particular work, the must able original “conjure up” at least to make the enough object its critical g., Music, e. Elsmere recognizable. See, wit 2d, 623 F. Fisher Dees, 1; 2d, n. 794 F. 438-439. What makes for this is recognition quotation original’s most distinc- tive or features, memorable which the can be parodist sure the audience will Once enough know. has been taken to as- identification, sure how much more reasonable will depend, on the extent to which the say, song’s overriding purpose *17 and or, character is to parody contrast, likelihood that the serve may as a parody market substitute for the But original. using some characteristic features can- not be avoided.
We think the Court of Appeals was insufficiently apprecia- tive of need for the parody’s recognizable sight or sound when it ruled 2 Live Crew’s use unreasonable as a matter It true, law. is of course, that 2 Live Crew copied (or the characteristic bass riff opening musical phrase) and original, true that the words of the first line copy the Orbison lyrics. But if quotation riff and opening the first line be said to to the go “heart” of the original, the heart is also what most conjures readily up the for it and is the at parody, heart which takes parody aim. Copy- does not ing become excessive in relation to parodie purpose because merely the portion taken was the original’s heart. If 2 Crew Live had a copied significantly less memorable part
of the it is original, difficult to see how its parodie character supra, Dees, Fisher would have come See through. 439. not, course,
This is that who calls himself say anyone In can skim the cream and scot free. get away parodist as in news see con- reporting, text is and the asks what everything, fairness question else the did besides to the heart of the parodist go original. that 2 It is Live Crew not the first significant only copied line of the but thereafter from original, markedly departed the Orbison for its own lyrics ends. Live Crew it,19 the bass riff and oth- repeated but also copied produced noise, erwise distinctive sounds, over- interposing “scraper” the music with solos in different laying altering keys, the drum beat. See 754 1155. This is not Supp., case, then, where “a substantial of the itself portion” is of a “verbatim” It is of the composed copying original. not, is, that a case where the as insubstantial, is so to the that compared the third factor must re- copying, solved as a matter of law against parodists. that, it say
Suffice here as to the we think the lyrics, Court of correctly that was Appeals suggested “no more taken than 2d, 972 F. necessary,” but just we fail to reason, see how the can be excessive copying relation to its parodie purpose, even if the taken is portion “heart.” original’s music, As to the we no express opin- ion whether riff repetition bass copying, excessive and we remand to permit evaluation of the taken, amount light song’s parodie character, purpose its trans- formative elements, and considerations of the *18 for potential market substitution sketched more below. fully 19 may heighten This serve to the comic effect of the as one stated, 32a, witness App. of Brand; Affidavit see also Elsmere Oscar Music, Inc. v. Co., National Broadcasting (SDNY 482 Supp. F. 747 1980) (repetition of Sodom”), “I Love or serve original’s to dazzle with the music, as Acuff-Rose now contends.
590
D is “the The fourth use factor effect of the upon fair the market for or of the value work.” potential copyrighted 107(4). § It to consider not the extent requires courts only of harm of market caused actions the al- by particular but and wide- infringer, also “whether unrestricted leged of conduct engaged sort the defendant. . . spread in a would result adverse on the substantially impact poten- tial for the 13.05[A][4], market” Nimmer 13- original. p. (footnote omitted); accord, Row, & Harper S., 102.61 U. Marsh, Folsom 569; 65; Cas., at Report, p. Senate 349. The “must take account not of harm to enquiry only but also of harm to the market derivative for Row, & Harper works.” 568. fair use is an
Since affirmative defense,20 its proponent would have the burden of difficulty carrying demonstrating fair use without favorable evidence about relevant markets.21 for In left moving summary Live them- judgment, Crew selves at such a when failed to ad- just disadvantage they dress the effect on the derivatives, market con- rap fined themselves to uncontroverted submissions that there was no effect on likely the market for the did They original. not, however, themselves thereby subject to the evidentiary presumption applied by Court In Appeals. assessing the likelihood of significant market harm, Court Ap- S., 561; 102-836, 471 U. H. Rep. p. R. No. n. 3 (1992). evidence, more, Even favorable guarantee without is no of fairness. Judge gives example producer’s Leval film appropriation of a composer’s previously song unknown song turns the into commercial success; the boon not simple does make the copying film’s 1124, n. factor, fair. Leval 84. three, This no less than the other through Sony only balancing addressed Corp. “sensitive interests.” Studios, Inc., City America v. Universal (1984). 417, 455, 464 U. S. n. 40 Market is a matter degree, importance harm factor of this will vary, harm, with the amount of but also strength with the relative on showing the other factors. *19 “ Sony from that quoted language the intended peals ‘[i]f is for commercial that likelihood gain, be may presumed. ifBut it is for a noncommercial purpose, likelihood must Sony, 2d, 1438, be demonstrated.’” 972 F. at quoting S.,U. at 451. The court reasoned that because “the use commercial,... work is copyrighted we wholly presume that a likelihood of future harm to Acuff-Rose exists.” 2d, 1438. In so the court resolved the fourth doing, factor 2 Live against Crew, first, as it had the just by apply- about the effect ing presumption use, of commercial a pre- sumption which as we here hold to be applied error.
No or inference of market “presumption” harm that might Sony find support to a case applicable involving some- mere thing beyond for commercial duplication purposes. Sony’s discussion of a presumption contrasts a context of verbatim copying its for commer- original entirety Sony cial with purposes, the noncommercial context of itself (home of television copying In the former programming). Sony circumstances, what said makes common simply sense: when a commercial use amounts to mere duplication anof entirety it original, clearly “superseded] objects,” supra, Marsh, Folsom 348, and serves original as a market replacement it, it making that likely cognizable Sony, market harm to the will occur. original at 451. But on the when, the second use is contrary, transformative, market substitution is least certain, less and market harm at. not be so inferred. readily Indeed, as to parody pure it is more simple, that the likely new work will not affect the market for the in a under way cognizable this factor, is, by acting as a substitute for it (“superseding] [its] See Leval objects”). 1125; Patry & Perlmutter 697-698. This is so because the the original usu- serve ally different market functions. Bisceglia, ASCAP, Law Copyright No. Symposium, 23.
We do not, of course, that a suggest parody may harm all, market at but when a lethal like a scathing *20 original, review, theater kills demand for the it does not cognizable produce Copyright a harm under the Act. Be- “parody may quite legitimately garroting cause aim at the original, destroying commercially artistically,” it as well as Kaplan, Copyright (1967), An B. Unhurried View the distinguish “[b]iting the role of courts is to between criticism merely] suppresses [that copyright [and] infringe- demand usurps which] ment[, Dees, it.” Fisher 2d, F. at 438. potentially displace This distinction between remediable disparagement ment and unremediable is reflected the protectible rule that there is no derivative market for criti potential only The market for cism. derivative uses includes original general those that creators of works would de velop develop. or license others to Yet the unlikelihood that imaginative creators of works will license critical reviews or lampoons productions of their own removes such uses from very potential licensing “People notion of a market. ask they only praise.” Maugham, for criticism, ... but want S. 1992). Bondage (Penguin
Of Human ed. Thus, to the opinion may extent that the below be read to have consid parodies Pretty ered harm to the market for of “Oh, Woman,” see 972 2d, the court Accord, erred. supra, Patry Dees, Fisher v. at 437; Leval 1125; & Perlmut ter 688-691.22 explaining why recognizes
In the law no derivative market including parody, for critical works, we have, course, been speaking nothing of the later work as if it had but a critical (i. aspect 591). “parody pure simple,” supra, e., But the later complex have a more with ef- character, only fects not protectible the arena of criticism but also in markets for derivative works, In too. that sort of case, beyond law looks the criticism to the other elements of the work, as it comprises does here. 2 Live Crew’s express opinion We no as to the derivative using markets for works elements of original an as vehicles for amusement, satire or making no comment on the or criticism of it.
only parody rap but the derivative market music, also rap proper enquiry, music is a focus of see §13.05[B]. 568; Evidence of substantial Nimmer against finding weigh harm use,23 to it would of fair because licensing important is an incen- derivatives economic 106(2) originals. tive to the creation See 17 C. U. S. works). (copyright rights owner derivative Of has that as course, us, harm to derivatives need concern The above, discussed harm of market substitution. parody may impair fact uses the market for derivative very commentary effectiveness its critical is no more relevant under than like threat to *21 original market.24
Although 2 Live Crew submitted uncontroverted affidavits question original, they, on the of market harm to the neither addressing nor Acuff-Rose, introduced evidence affidavits likely parodie rap effect 2 of Live Crew’s on nonparody, rap Pretty market for a of “Oh, version Woman.” rap And while would have us find evidence of a Acuff-Rose very rap market in the facts that 2 Live Crew recorded a parody Pretty sought rap group “Oh, Woman” and another rap derivative, license record a there evidence was no potential rap any way by that a market was harmed in 2 rap parody, Live Crew’s The version. fact that Live part says rap songs Crew’s sold as a collection of very parody’s rap little about the effect on a market for a original, version of the either of or of the music alone lyrics. essentially passed music with its The District Court (“a 13.05[A][4], See p. Nimmer substantially 13-102.61 adverse im pact potential market”); on the Leval (“reasonably substantial” harm); Patry (same). & Perlmutter 697-698 24 In some cases it be difficult to determine whence the harm flows. cases, In such may provide other fair use factors some indicia of the likely source A harm. overriding purpose whose and charac parodie ter is borrowing whose slight is relation to its will likely be far cognizable less to cause harm parodie than a work with little content and much copying. issue,
on this observing that free to record Acuff-Rose desires,” “whatever version of the it 754 F. Supp., 1158; the of Appeals by Court went the other erroneous way treatment, presumption. Contrary to each it is impossible to deal with the fourth factor that except recognizing a silent record an on factor on fair important bearing disentitled the defense, of the Live proponent Crew, to The summary hole will judgment. evidentiary doubtless on remand. plugged
Ill It was error for the Court of conclude that Appeals of 2 commercial nature Live of “Oh, Crew’s parody Pretty Woman” rendered it unfair. No such eviden- presumptively tiary is available to either the presumption address first fac- tor, the use, character and or the mar- purpose fourth, ket harm, in determining whether a transformative use, such as is a fair one. The court also erred in holding 2 Live Crew had necessarily from copied excessively the Or- bison original, considering parodie purpose use. We therefore reverse of the Court of judgment Appeals and remand the case for further consistent with proceedings this opinion.
It is so ordered. *22 APPENDIX A TO THE OPINION OF COURT “Oh, Woman” Pretty Orbison William Roy Dees Woman, Pretty street, down walking Pretty Woman, the kind I meet, like to Pretty Woman, I don’t believe you,
you’re truth, not the No one could look as good as you Mercy
Pretty Woman, won’t you pardon me, Pretty Woman, I couldn’t see, but help Woman, Pretty that you look as can lovely Are you like lonely just me? Woman,
Pretty a while, stop
Pretty Woman, talk a while, Pretty Woman give your smile me Woman, Pretty yeah, yeah, yeah Woman, Pretty look my way, Woman,
Pretty say you’ll stay with me I ’Cause need I’ll you, treat you right Come to me Be mine baby, tonight Woman, Pretty don’t walk on by, Woman, don’t Pretty make cry, me Woman, don’t Pretty walk away, O. K. Hey,
If that’s the itway must be, O. K. I I’ll on guess go home, it’s late There’ll be tomorrow but night, wait!
What Ido see
Is she back to walking me?
Yeah, she’s walking back to me!
Oh, Pretty Woman.
APPENDIX B TO OPINION OF THE COURT Woman”
“Pretty 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 know you I bet it’s tough *23 Big hairy woman all that , hair it ain’t legit It’ like ‘Cousin look you ’Cause woman Big hairy hair won’t grow woman girl your
Bald headed afro weeny a teeny got woman you Bald headed look hair could know your woman you headed Bald nice with rice to roll it first you got woman
Bald headed hunk of this let me here, get headed woman Bald biz for ya than rice look better I’m saying you what
Ya know roni woman bald headed Oh come on in woman
Big hairy headed friend bald forget your And don’t let the boys woman Hey pretty Jump ain’t know you right woman girl you
Two timin’ with last my boy night out you’s Two timin’ woman mind a load off my woman that takes Two timin’ mine I ain’t baby now know Two timin’ woman woman Oh, two timin’ woman
Oh pretty Kennedy, concurring. Justice remand is and join opinion I agree appropriate about the fair use with these further observations Court, analysis parody. method instated the fair use provision
The common-law
(1988
S.
ed.
statute,
Supp.
U. C.
from the course of deci-
that rules will
IV),
emerge
presumes
are now dis-
I
that certain
agree
general principles
sions.
to define the fair use
One
parody.
cernible
exception
rules,
observes,
as the
is that parody may qual-
these
Court
it is
or per-
as fair use
whether
ify
regardless
published
*24
Ante,
formed for
at 591. Another
is that
profit.
parody-
as fair use
if it
may qualify
only
draws
the
upon
original
to make
or
composition
humorous
ironic
about
commentary
Ante, that same
composition.
580.
It is not
enough
the
use the
parody
a humorous fashion, however
creative that humor
be.
may
The
must
parody
the
target
and not
its
original,
the
just
general style,
of art
to
genre
which it
as a
belongs,
society
whole
if it
(although
targets
Rog-
well).
the original, it may target
those features as
See
ers v. Koons,
(CA2
1992)
The fair use factors thus reinforce the ing proper the definition within More than limits. arguable parodie required content should be deem parody a would-be fair use. Fair use an affirmative de- given fense, so doubts about whether use is fair should self-proclaimed parodist. not be resolved in favor of the We *26 easy existing exploit should not make it for musicians to works and then later claim that their rendition was a valu- commentary original. any revamped able on the Almost composition modern version of a familiar can be construed original,” as a “comment on ante, the naiveté of style because of the difference in and because it will be amus- ing genre. to hear how the old tune sounds in the new Just thought rap of a Symphony version of Beethoven’s Fifth “Achy Breaky or people Heart” is bound to make smile. If any qualify we allow weak parody, transformation to as how- protection copyright. ever, we weaken the And under- protection goals copyright just disserves the overprotection, by as much reducing as the financial incen- tive to create. say
The Court decides it is “fair to song that Live Crew’s reasonably perceived could commenting as on the Ibid, criticizing degree.” it, to (applying some the first factor). fair use While I am not so assured that 2 Live song legitimate Crew’s is a the Court’s treatment of remaining factors leaves room for the District Court to determine on remand that the is not a fair use. As apply analysis, they future courts our fair use must take care just any to ensure that not commercial takeoff is rationalized post parody. as a hoc join opinion observations,
With these I of the Court.