The rap group 2 Live Crew recorded and sold a commercial
The rap group 2 Live Crew recorded and sold a commercial
The rap group 2 Live Crew recorded and sold a commercial parody of Roy Orbison's copyrighted song “Oh Pretty Woman.” Rose Music, Inc.. the copyright holder, sued the 2 Live Crew members after nearly a quarter million copies of the recording had been sold. The case came before the Supreme Court after the court of appeals decided that 2 Live Crew's parody had taken too much of “Oh Pretty Woman” to be protected as a fair use.
SOUTER, J: It is uncontested here that 2 Live Crew's song would be an infringement of rights in “Oh Pretty Woman,” under the Copyright Act of 1976, but for a finding of fair use through parody. From the infancy of copyright protection, some opportunity for fair use of copyrighted materials has been thought necessary to fulfill copyright's very purpose, “to promote the Progress of Science and useful Arts….” For as Jus-tice Story explained, “in truth, in literature, in science and in art, there are, and can be, few, if any, things, which in an abstract sense, are strictly new and original throughout. Every book in literature, science and art, borrows, and must necessarily borrow, and use much which was well known and used before.” The first factor in a fair use enquiry is “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.” The enquiry here may be guided by looking to whether the use is for criticism, or comment, or news reporting, and the like. The central purpose of this investigation is to see, in Justice Story's
words, whether the new work merely “ the objects” of the original creation, or instead adds some-thing new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is “transformative.” Although such transformative use is not absolutely necessary for a finding of fair use, the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works. Such works thus lie at the heart of the fair use doctrine's guarantee of breathing space within the confines of copyright, and the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use. The second statutory factor, “the nature of the copyrighted work,” calls for recognition that some works are closer to the core of intended copyright protection than others, with one consequence that fair use is more difficult to establish when the former works are copied. We agree with both the District Court and the Court of Appeals that the Orbison original's creative expression for public dissemination falls within the core of the copyright's protective purposes. This fact, however, is not much help in this case, or ever likely to help much in separating the fair use sheep from the infringing goats in a parody case, since parodies almost invariably copy publicly known, expressive works. The third factor asks whether “the amount and substantiality of the portion used in relation to the copyrighted ac a whole” are reasonable in relation to the purpose of the copying. The District Court considered the song's purpose in finding that 2 Live Crew had not helped themselves overmuch. The Court of Appeals disagreed, stating that “while it may not be inappropriate to find that no more was taken than necessary, the copying was qualitatively substantial…. We conclude that taking the heart of the original and making it the heart of a new work was to purloin a substantial portion of the essence of the original.” Suffice it to say here that, as to the lyrics, we fail to see how the copying can be excessive in relation to its purpose, even if the portion taken is the original's “heart.” As to the musk, we express no opinion whether repetition of the bass riff is excessive copying, and we remand to permit evaluation of the amount taken, in light of the song's purpose and character, its transformative elements, and considerations of the potential for market substitution sketched more fully below. The fourth fair use factor is “the effect of the use upon the potential market for or value of the copy-righted work.” It requires courts to consider not only the extent of market harm caused by the particular actions of the alleged infringer, but also “whether unrestricted and widespread conduct of the sort engaged in by the defendant … would result in a substantially adverse impact on the potential market” for the original. The enquiry “must take account not only of harm to the original but also of harm to the market for derivative works.” Although 2 Live Crew submitted uncontroverted affidavits on the question of market harm to the original, neither they, nor Rose, introduced evidence or affidavits addressing the likely effect of 2 Live Crew's rap song on the market for a nonpar-ody, rap version of “Oh Pretty Woman.” And while Rose would have us find evidence of a rap market in the very facts that 2 Live Crew recorded a rap parody of “Oh Pretty Woman” and another rap group sought a license to record a rap derivative, there was no evidence that a potential rap market was harmed in any way by 2 Live Crew's parody, rap version. It was error for the Court of Appeals to conclude that the commercial nature of 2 Live Crew's parody of “Pretty Woman” rendered it presumptively unfair. No such evidentiary presumption is available to address either the first factor, the character and purpose of the use, or the fourth, market harm, in determining whether a transformative use, such as parody, is a fair one. The court also erred in holding that 2 Live Crew had necessarily copied excessively from the Orbison original, considering the purpose of the use. We therefore reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.
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