Justices to Review Use of Tune for Parody : Law: Spoofs generally have not been held to be a copyright infringement. Reversing that could have a wide impact in the entertainment industry.

The Supreme Court agreed Monday to decide whether a performer can record a parody of a popular tune without paying copyright fees.

The justices said they would review a ruling that requires the rap group 2 Live Crew to pay damages for what was deemed a “blatantly commercial” mockery of Roy Orbison’s hit, “Oh, Pretty Woman.” In their 1989 album “As Clean As They Wanna Be,” 2 Live Crew sang about a “big hairy woman.”

A ruling on this case, due next year, could have a broad impact in the entertainment industry. Most courts have said that a “parody” is not a copyright infringement because it is commentary on an original work. But last year, a federal appeals court in Cincinnati characterized 2 Live Crew’s tune as more a piracy than a parody.

If this decision is upheld by the high court, it “would effectively outlaw musical parody in nearly every circumstance,” say lawyers representing 2 Live Crew.

The parody case gives the justices a chance to resolve one of the recurring dilemmas in copyright law.

The Copyright Act gives the creators of an original work the right to control its use and to profit from rerecordings. Those who want to make use of a copyrighted work typically pay a fee to the owners of the copyright.

But the law makes an exception for the “fair use” of a copyrighted work “for purposes such as criticism, comment, news reporting, teaching, scholarship or research.” For example, a book reviewer or a theater critic can quote passages from an original work without infringing a copyright.

In most instances, a performer who parodies a song has been viewed as making a type of “criticism (or) comment” on the original work and thereby is exempted from paying copyright fees.

For example, the U.S. 9th Circuit Court of Appeals based in California refused in 1986 to award damages to the composers of a 1950s hit “When Sunny Gets Blue,” which had been recorded by Johnny Mathis. In 1984, disc jockey Rick Dees recorded a parody entitled “When Sunny Sniffs Glue.” After listening to the two recordings, the appellate judges said that it was clear Dee’s version “was intended to poke fun at the composer’s song and at Mr. Mathis’s rather singular vocal range.”

Copyright experts say that the federal courts in Los Angeles and New York have tended to protect parodies from copyright infringement suits. But the 2 Live Crew case was before the U.S. 6th Circuit Court of Appeals, whose jurisdiction includes Nashville. That court has tended to side with copyright owners whose works have been used by others.

The case before the court arose when officials of Acuff-Rose Music in Nashville refused permission to license 2 Live Crew’s take-off on “Oh, Pretty Woman.” The rights to that 1964 hit, written by Orbison and William Dees, had been sold to the Nashville company.

Its officials characterized the 2 Live Crew version as vulgar and “not consistent with good taste.”

Before a trial judge, however, music experts testified that the rap group’s version “ridiculed the white-bread original” and showed it to be “bland and banal.” A federal judge agreed and threw out the copyright infringement claim.

But on a 2-1 vote, the appeals court in Cincinnati said that the rap group’s work was a “blatantly commercial” attempt to steal Orbison’s hit for their own gain.

Attorneys for Washington’s leading comedians, Mark Russell and the group Capitol Steps, urged the court to hear the case (Luther Campbell vs. Acuff-Rose Music, 92-1292), saying that the lower court ruling could prevent them from using popular songs to mock the nation’s premier politicians.

Among other actions, the justices refused to get involved in a protracted and complicated dispute over the use of test scores in the promotion of police officers in San Francisco (San Francisco Police Officer Assn. vs San Francisco, 92-1298).

The police union had challenged the city’s affirmative action efforts as unconstitutional but the justices dismissed the appeal without comment.

In another case (Hall vs. Minnesota, 92-1333), the justices let stand a Minnesota law making it a crime to call consumers with an automatic dialing device. The court refused to consider a First Amendment challenge to the state law, which banned the use of automatic dialing devices for commercial solicitations.

The justices also let stand the conviction of two defense industry lobbyists for stealing “unclassified information” about pending government contracts (McAusland vs. United States, 92-960).

The two lobbyists were convicted in connection with the government’s Operation Ill Wind investigation for stealing sensitive information on contract bids for their employer, Litton Data Systems.

In their appeal, they questioned whether the law making it a crime to steal government property includes the theft of “unclassified information.” Without comment, the justices dismissed their appeal.