High Court Sanctions Right to Parody Works of Others

The Supreme Court on Monday gave legal protection to writers, artists and actors who parody the works of others, ruling that a song that copies another work “for comic effect or ridicule” is generally exempt from copyright suits.

The 9-0 ruling is a victory for the rap group 2 Live Crew, which five years ago recorded a takeoff of the late Roy Orbison’s 1964 pop classic, “Oh, Pretty Woman.”

More broadly, the decision assures that a work that “mimics an original to make its point” cannot easily be blocked by a copyright infringement suit.

“Like less ostensibly humorous forms of criticism, (parody) can provide social benefit by shedding light on an earlier work and, in the process, creating a new one,” wrote Justice David H. Souter for the court. “We thus line up with the courts that have held that parody, like other comment or criticism, may claim” an exemption under the Copyright Act.

Monday’s ruling marked the first time that the high court has spoken directly on how a parody is to be treated under the copyright laws.

The issue arose in a case that included both a legal dispute and a clash of cultures. Where Orbison’s ballad spoke of a nighttime meeting with a woman who was “lovely as can be” and, he hoped, “lonely just like me,” the rap group speaks of a grotesque encounter with a “big hairy woman.”

When the song appeared on the album “As Clean As They Wanna Be,” the Nashville owners of Orbison’s copyright sued 2 Live Crew and won a ruling from the U.S. Court of Appeals in Cincinnati. Finding little to like and nothing amusing in the rap version, the appellate judges declared that a “blatantly commercial” rip-off of another work is an act of piracy.

The lower court judges agreed that the rap version was a parody of Orbison’s song, but nonetheless said that fact did not protect it from a copyright suit.

The Cincinnati ruling alarmed entertainment lawyers in Los Angeles and New York, who predicted that it could “effectively outlaw musical parody.” It even threatened actors and comedians whose skits rely on mocking the work of others, they said.

As a general matter, the Copyright Act of 1976 gives the creators of an original work the right to control its use and to profit from re-recordings. Those who want to make use of a copyrighted work typically must get permission and 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 theater critic can quote passages from an original work without infringing on a copyright.

The question in the case before the court (Luther Campbell vs. Acuff-Rose Music, 92-1292) was whether a parody can come under the “fair use” exception.

Souter, in a carefully worded, 25-page opinion, said there is no simple formula for deciding when a parody has gone too far and infringed upon a copyright. But he made at least four central points that protect parodies.

First, the “commercial nature” of a song or literary parody is “only one element” to consider. He disagreed with the lower court’s “rigid” view that a parody done for profit violates the copyright law. He noted, however, that using a copyrighted work to advertise a product “will be entitled to less indulgence.”

Second, copying the “heart of an original work” also does not necessarily violate the copyright law, as the lower court suggested. “The parody must be able to conjure up at least enough of the original to make the object of its critical wit recognizable,” Souter said.

Third, the parody need not be in “good taste” to be shielded. While Orbison’s song contains the “romantic musings of a man whose fantasy comes true,” 2 Live Crew offers instead “degrading taunts, a bawdy demand for sex and a sigh of relief from paternal responsibility. . . . While we might not assign a high rank to the parodic element here, we think it is fair to say that 2 Live Crew’s song reasonably could be perceived as commenting on the original or criticizing it, to some degree,” Souter wrote.

Fourth, a parody does not violate the Copyright Act just because it hurts the value of the original work, as the appeals court indicated. “A lethal parody, like a scathing theater view, kills demand for the original (but) it does not produce a harm cognizable under the Copyright Act,” Souter said. It is important, he said, for judges “to distinguish between biting criticism that merely suppresses demand and copyright infringement which usurps it.”

The high court appeared to leave open the question of whether the shield extends to those who use familiar songs for comic effects that are largely unrelated to the original work. For example, satirist Mark Russell and the comedy group Capitol Steps change the words to familiar tunes to poke fun at the high and mighty of Washington. Their parodies usually do not mock the original songs, however.

Souter noted that if a takeoff “has no critical bearing on the substance or style of the original composition (but) merely uses it to get attention,” it is generally not protected from claims of copyright infringement.

In concurring, Justice Anthony M. Kennedy stressed that “a parody must target the original . . . in a humorous fashion” to be protected. “Courts should not accord fair use protection to profiteers who do no more than add a few silly words to someone else’s song or place the characters from a familiar work in novel or eccentric poses,” he said.

In other actions, the court:

* Shielded judges from most complaints of showing bias or prejudice in the courtroom (Liteky vs. US, 92-6921).

Federal law requires a judge to step aside in a case when “his impartiality might reasonably be questioned” but the high court said that a judge’s comments or rulings from the bench cannot be the basis for a disqualification motion unless they “displayed a deep-seated favoritism or antagonism” for one party or the other.

* Agreed to review the question of whether states can tax some income that people receive from mutual funds that invest solely in U.S. government securities (Nebraska vs. Loewenstein, 93-823). Federal law generally exempts U.S. government securities from state taxes but Nebraska says it can impose taxes on those who purchase them through other funds.