Fair Use Week 2019: Day One With Guest Expert Kenneth Crews

We are delighted to kick off the 6th Annual Fair Use Week with a guest post by the worldwide copyright expert, Dr. Kenneth Crews as he muses over the 25th Anniversary of one of the most critical of all fair use cases, Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994), the 2 Live Crew Case!

Fair Use and the Growth of Creativity: Celebrating a Quarter Century

by Kenneth D. Crews

Dust off the CD player and get in the mood for Boyz II Men and Ace of Base.  We’re gonna party like it’s 1994!  In just several days, on March 7 next week to be exact, we can celebrate the 25th anniversary of the Supreme Court’s ruling in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994).  You know that a case about early rock music by a guy named Skyywalker has got to be good.  The Campbell decision is in fact the most important fair use court ruling – ever.

That’s right.  Campbell is the most important fair use ruling in the history of the known universe.  It has been cited in nearly 700 subsequent decisions from U.S. courts and has been the springboard thousands of articles and studies. The case is referenced with joy by copyright professionals around the world who yearn for the clear rights we now have in the U.S. to make the critical and even despicable parodies, as the Supreme Court unequivocally sanctioned.

Skewering and criticizing are among the most American pursuits – they are extensions of our beloved free speech traditions – and the Court preserved the spirit of that Weltanschauung in the framework of fair use and copyright law.  The task for the Supreme Court was to discern and articulate when fair use would allow the creation of a parody without infringing the copyright in the underlying work.  The subject matter in the Campbell case was the pop song, Oh, Pretty Woman, made famous in 1964 by the singer and songwriter, Roy Orbison.

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A parody, unlike a satire, necessarily makes use of a specific original work.  A satire might use a song or other existing work to critique or mock something else.  Think of Weird Al Yankovic being generally gluttonous to the tune of Beat It.  Many other songs could have been the vehicle for pie hole humor.  By contrast, a parody comments on the underlying work itself; a parody must use at least a bit of the work it is seeking to attack.

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In the Campbell case, the rap group 2 Live Crew rewrote the original Orbison opus in a quest to criticize and comment on its sentiment of a simple and perhaps misguided romantic episode.  Justice David Souter, one of the most well-read Supreme Court jurists in recent decades, recast the legal analysis with grace of a literary analysis and the comprehension of a constitutional scholar.  Souter recognized through the unanimous decision that fair use is essential to a functional copyright law, to critical reflection, and to the inspiration of new creativity:

[T]he 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. . . .

The Court gave a strong endorsement to the policies behind the law, but the most enduring legacy of Campbell has been its restructuring of the legal principles of fair use.  The Supreme Court had previously rendered fair use decisions about quoting from a presidential autobiography and recording a TV broadcast at home.  While the Court based its decisions on the four factors in the fair use statute, the analysis was often muddled and supported by interpretative principles that tended to ossify fair use at a time when the need for flexibility was on the rise.

Flexibility in fair use allows the law to apply to diverse works for a widening range of new uses. The Supreme Court in Campbell abandoned earlier edicts against commercial uses, and even against using the “heart” of a work.  The Court turned away from declaring market harm as the most important factor, and it elevated the notion of “transformative” uses.  Under Campbell, all four factors of fair use are to be evaluated together, and each is weighted according to the strength of the evidence.

Justice Souter vividly understood that parody is a form of criticism, and society is best served through open commentary on music, literature, art, politics, and more.  The subject of Campbell may have been a chipper ditty with a virtuous sentiment and a compelling bass riff.  Through the last 25 years, however, the real subject of Campbell has become clear.  The more flexible conception of fair use that Campbell espouses is not only about using existing works – it is about creating an entire new breed of works.

Consider again life in 1994.  The Simpsons was in its fifth season, and parody recordings had been the oeuvre of Allan Sherman and Stan Freberg.  But by coming in 1994, the Campbell decision inadvertently became a turning point in relationship of copyright to technological change.  The internet was in its formative years, YouTube was a decade from inception, and the more aggressive parodies of South Park and The Daily Show were mere brainstorms.  Campbell opened the way for fuller exploitation of the humor, taste, media, political intrigue, cable networks, worldwide connections, and digital tools that were about to revolutionize our lives.

The flexibility that Campbell brought to fair use has allowed this social and intellectual transformation to prosper.  It also fostered the creativity of appropriation art, the trenchant dissection of political news, and the digitization and analysis of millions of books and other copyrighted works.  The Campbell ruling brought new meaning to fair use exactly when technology was widening possibilities, and when our social and political climate demanded a critical examination – and even a stinging parody.  The Supreme Court showed tremendous foresight in 1994 and gave us something to truly celebrate a quarter century later.

Kenneth D. Crews is an attorney and international copyright consultant with Gipson Hoffman & Pancione in Los Angeles, California.  He was previously on the faculty and founding director of copyright offices at Columbia University and Indiana University, and he has been a consultant for the World Intellectual Property Organization since 2007.  Dr. Crews is the author of Copyright Law for Librarians and Educators, forthcoming soon in a 4th edition.

 

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