510 U.S. 569 (1994)
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.1
Acuff-Rose registered the song for copyright protection.2
Petitioners Luther R. Campbell, Christopher Wongwon, Mark Ross, and David Hobbs, collectively known as 2 Live Crew, wrote a song in 1989 entitled "Pretty Woman," which Campbell described in an affidavit as intended through comical lyrics to satirize the original work.3 On July 5, 1989, 2 Live Crew's manager informed Acuff-Rose that the group had written a parody of the song, that they would afford all credit for ownership and authorship to Acuff-Rose, Dees, and Orbison, and that they were willing to pay a fee for the use.4 Enclosed with the letter were a copy of the lyrics and a recording of 2 Live Crew's song.5 Acuff-Rose's agent refused permission.6
In June or July 1989, 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."7 The albums and compact discs identify the authors of "Pretty Woman" as Orbison and Dees and its publisher as Acuff-Rose.8 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.9
The District Court granted summary judgment for 2 Live Crew.10 The Court of Appeals for the Sixth Circuit reversed and remanded.11 The Supreme Court granted certiorari to determine whether 2 Live Crew's commercial parody could be a fair use.12
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?13
Section 107 of the Copyright Act of 1976 provides that the fair use of a copyrighted work for purposes such as criticism or comment is not an infringement.14 Courts determine fair use by weighing four factors.15 The factors are the purpose and character of the use including its commercial nature.16 They also include the nature of the copyrighted work.17 The amount and substantiality of the portion used must be considered.18 Finally, courts examine the effect of the use upon the potential market for or value of the copyrighted work.19
Yes. The District Court granted summary judgment for 2 Live Crew after finding the parody transformative under the first factor despite its commercial release of nearly a quarter million copies.20 The Court of Appeals reversed by treating commercial character as presumptively unfair under the first and fourth factors.21 It also found excessive copying of the heart of the original under the third factor.22
The Supreme Court held that no such presumption applies to transformative parody.23 The parody reasonably could be perceived as commenting on the original.24 This requires remand for proper balancing of all factors against the established facts of the 1989 release and the refusal of permission by Acuff-Rose.25
A commercial parody may qualify as fair use under section 107, and the judgment of the Court of Appeals is reversed with remand for further proceedings.26
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Justice Kennedy concurred in the remand but offered further observations about the fair use analysis of parody.27 He emphasized that parody qualifies for fair use protection only when it targets the original composition itself for humorous or ironic commentary.28 The parody must not merely use the original's style or target society at large.29
This prerequisite confines fair use protection to works whose very subject is the original composition and necessitates some borrowing from it. He stressed that fair use is an affirmative defense.30 Courts must ensure the parody is an independent creative work rather than a weak transformation that merely exploits the original for commercial gain.31
Doubts should not be resolved in favor of the self-proclaimed parodist.32
Whether the commercial character of the parody requires the conclusion that the first fair use factor weighs against a finding of fair use?33
The first fair use factor examines the purpose and character of the use, including whether it is commercial.34 Commercial nature is only one element to be weighed.35 It does not create a presumption against fair use.36 Transformative uses that add new expression or meaning receive greater protection even if commercial.37
No. Although 2 Live Crew released the parody commercially in the album As Clean As They Wanna Be, the group stood to profit from nearly a quarter million sales.38 The song's parodic character reasonably could be perceived as commenting on the naivete of the original by juxtaposing romantic lyrics with degrading taunts.39 The Court of Appeals erred by elevating the commercial fact to virtually dispositive weight under a misreading of Sony.40 The statute and precedent require case-by-case weighing.41
The transformative parody element lessens the significance of commercialism when applied to the facts of the 1989 request for permission and subsequent release.42
The commercial character of the parody does not require the conclusion that the first factor weighs against fair use.43
Related opinions on this issue
Justice Kennedy agreed that commercial character alone does not bar fair use.44 He added that the first factor itself incorporates the requirement that the parody target the original work for humorous or ironic commentary. It is not enough that the parody use the original in a humorous fashion.
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. This prerequisite confines fair use protection to works whose very subject is the original composition. He cautioned that more than arguable parodic content should be required to deem a would-be parody a fair use.
Allowing weak transformations to qualify as parody would weaken the protection of copyright. Under-protection of copyright disserves the goals of copyright just as much as overprotection by reducing the financial incentive to create.
Whether 2 Live Crew took too much from the original by copying the heart of the song under the third fair use factor?45
The third fair use factor considers the amount and substantiality of the portion used in relation to the copyrighted work as a whole.46 The copying must be reasonable in light of the purpose of the use.47 For parody, enough of the original must be taken to conjure it up for recognition.48 Taking the heart is not excessive if necessary to the parodic purpose.49
No. Although 2 Live Crew copied the characteristic opening bass riff and the first line of lyrics, which may constitute the heart of the Orbison original, such copying was necessary to make the parodic character recognizable to listeners familiar with the 1964 ballad.50 The group then departed markedly by adding scraper noise, solos in different keys, altered drum beats, and new lyrics that ridiculed the original's sentiment.51 This satisfied the requirement that no more be taken than necessary for the parody when measured against the established facts of the 1989 composition and release.52
Copying the heart of the original does not preclude fair use under the third factor when done for parodic purposes.53
Whether the effect of the parody on the potential market for the original or for derivative works precludes a finding of fair use under the fourth factor?54
The fourth fair use factor requires consideration of the effect of the use upon the potential market for the original and derivative works.55 No presumption of market harm arises from commercial use alone when the secondary work is transformative.56 Harm from criticism or disparagement is not cognizable.57 Harm from market substitution is.58
No. 2 Live Crew submitted uncontroverted affidavits showing no likely effect on the market for the original.59 There was no evidence of harm to a potential market for nonparody rap derivatives of the song.60 The Court of Appeals wrongly applied a Sony presumption of harm from commercial use.61 The parody serves a different market function from the original ballad.62
Any derivative licensing market for criticism does not exist.63 The silent record on rap derivatives requires remand rather than a finding against fair use on the facts of the 1989 release after permission was refused.64
The effect of the parody on the potential market does not preclude a finding of fair use under the fourth factor.65
Related opinions on this issue
Justice Kennedy noted that the fourth factor underscores the need to ensure the parody is an independent creative work.66 Its critical effect may legitimately suppress demand for the original. Its substitutive effect may not.67
He cautioned that allowing weak transformations to qualify as parody would reduce the financial incentive to create originals.68 Such under-protection would disserve the goals of copyright just as much as overprotection.69 The fair use factors 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.