A ‘Pretty’ Parody Stands Up

Freedom of speech, if it is to be effectively protected, must be knowledgeably protected. Everyone can appreciate that crying “Fire!” in a crowded theater when there is no fire is an abuse of freedom of speech. But the finer distinctions are not always so obvious.

It is reassuring, therefore, to see several distinctions finely made in the unanimous U.S. Supreme Court decision upholding the rights of the elusive variety of speech we call parody.

The holders of the copyright to Roy Orbison’s song “Pretty Woman” had sued over a parody of that song by the rap group 2 Live Crew. Though some matters of fact remain to be determined by a lower court, Justice David H. Souter, writing for the Supreme Court, has now recognized both the legitimacy of parody and the functionally legitimate needs of parody--the need to quote the original, for example.

In another literarily informed move, Souter has recognized that parody is a form of criticism and deserves the legal protection that criticism enjoys, even when it reduces the commercial value of the original. In ruling for 2 Live Crew, Souter distinguished “between biting criticism that merely suppresses demand and copyright infringement which usurps it.”

In another literary lawsuit destined eventually to reach the Supreme Court, a crime journalist, Dan E. Moldea, alleges that the reviewer of Moldea’s book “Interference: How Organized Crime Influences Professional Football” made factual errors about the book that the New York Times, which published the review, failed to correct even by printing a brief letter from Moldea. Can a writer sue over a negative opinion? Over the opinion as such, no, but over factual error offered as the basis of the opinion, yes, Moldea insists. So did a federal appeals court in Washington last month. The resolution of this question by the Supreme Court calls for a discriminating literary eye. It is gratifying to note that, in Souter, the court seems to have such an eye.