Articles

by Chris Grigg of NEGATIVLAND.

A Report on the US Supreme Court's 1994 Decision
in the 2 Live Crew Pretty Woman Case

This article first appeared
in the June 1994 issue
of Keyboard Magazine

"The fair use doctrine thus 'permits [and requires] courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.'"

—Stewart v. Abend,
495 U. S. 207, 236 (1990)
(Quoted in 2 Live Crew opinion)

Keyboard presents this article for our readers' information, not as legal advice. The issues discussed can be highly technical, and the "right" course of action could differ dramatically in apparrently similar situations. The author is not a lawyer, and anyone confronting the questions that this story addresses should consult a lawyer before acting.

Who Should Read This Article:

1. Anyone concerned with protecting copyrighted works, in any medium, from infringers.

2. Anyone interested in appropriating or "sampling" from those works.

How To Get the Full Text of the Opinions

The reference librarian at your local public library should be able to provide you with copies (heh, heh...) of the full text of these decisions. (The Supreme Court doesn't copyright its decisions.)

Fogerty v. Fantasy, Inc. is case No. 92-1750, decided March 1, 1994, and the 2 Live Crew case, formally Campbell, aka Skyywalker, et al. v. Acuff-Rose Music, Inc., is case No. 92-1292, decided March 7, 1994.

Electronically, these court decisions– as well as a list of pro-artist lawyers' groups in the U. S.— are available from the Negativland website's Intellectual Property Issues page.

Introduction

Although popular media accurately reported the unanimous decision handed down by the US Supreme Court in the 2 Live Crew Pretty Woman parody case last March as positive for the group, it generally missed the fact that the Court didn't in fact decide the outcome of the case: They just instructed a lower court how to perform an evaluation of one aspect of it. More importantly, it missed the fact that the opinion, now the law of the land fully as much as any statute enacted by Congress, has repercussions far beyond this case, beyond even parody in general.

The decision constituted the most significant clarification of copyright law's 'fair use' guidelines in the electronic age, clarifying what kinds of re-use of copyrighted material U.S. courts may find allowable, and, in so doing, materially narrowed the definition of infringement for all copyrightable media. Another recent Supreme Court decision, John Fogerty vs. Fantasy Inc., also discourages the filing of infringement suits by making it easier for some defendants who successfully fight off a copyright suit to get their attorney's fees paid by the other side.

In discussing their underlying reasoning, both opinions stress U.S. copyright law's original but lately forgotten purpose of promoting the creation and circulation of new works, and make it clear that copyright's protection of existing works arises not from inherent property rights but from that purpose, and must end where it would inhibit the creation of valuable new works.

Although fair use is a part of the same copyright law that prohibits out-and-out record piracy and similar whole, uncreative mass duplication of pre-existing tapes, CDs, videos, books, etc., for profit alone, those kinds of abuses have nothing to do with fair use and the new guidelines don't promote them in any way. Still, creators of copyrightable works need to be aware of these changes– especially if they anticipate involvement in litigation over a creative reuse of copyright-protected material, whether as plaintiff or defendant.

Before we can examine the 2 Live Crew decision in detail, an explanation of how fair use works is in order. But first, a basic knowledge of copyright law is necessary.

The Dawn of Copyright

"If creativity is a field,
then copyright is the fence."

—John Oswald

Given the boggling chasm between, on the one hand, the prevailing notion that copyright is somehow supposed to exist for the benefit of creators and, on the other hand, the obvious inhibiting effect that excessive intellectual property protection measures have had on artists and technological innovators in recent years (i.e. unreleaseable sampling masterpieces, basic software patents that stifle designs, etc.), we found it darkly satisfying to learn that the first real copyright law was invented around 1662 not in order to protect the rights of creators in their own work, but rather as a means for publishers in England– working in cahoots with the crown, which wanted to suppress the distribution of dissident material– to monopolize their bookselling business. The rights went to the publishers, not the writers, and, rather than rewarding creators, actually suppressed all unapproved writers' work. Eventually this first try at protection was discarded as a bad idea.

The 1709 Statute of Anne for the first time granted exclusive rights in books to the authors who wrote them, aiming to avert financial losses due to pirated printings specifically "for the Encouragement of Learned Men to compose and write useful Books". Captioned "An Act for the Encouragement of Learning," the statute granted this monopoly to authors for a limited time only, in recognition of the fact that to the extent that the books' duplication and circulation was limited, learning was in fact discouraged. And this is the tension at the core of copyright in a free society: the need for creators to be adequately compensated vs. the societal imperative of free flow of information and the resulting progress of the culture.

With the formation of the U.S., protection of private intellectual property was again cast in terms of promoting a public good. The U.S. Constitution (1787) outlined the basis for our copyright law: "The Congress shall have power[t]o promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries". Note that the duration of copyrights are limited (whereas physical property rights are ordinarily perpetual), that the benefit afforded to the creator is expressed as consequent to the purpose (not central), and that Congress had to enact a law to create copyright (it wasn't seen as a natural, pre-existing right).

The idea expressed in the Constitution and later codified into a succession of copyright laws– culminating in the Copyright Act of 1976– is generally to grant the copyright holder a monopoly on the work as regards: reproduction of the work; preparing derivative works (i.e. translations, new musical arrangements, adaptation to other media, condensations, etc.); public distribution of copies via sale, rental, lease, or lending; for performable works, public performance; and for displayable works, public display. That list enumerates the maximum extent of the protection the law gives a copyright holder, as there are limitations for certain media. Copyright protects only "original works of authorship fixed in any tangible medium of expression," not facts, ideas, processes, physical inventions, slogans, short phrases, typographical design, or trademarks. Another important limitation is fair use, which describes how a particular use of a work may be found to be exempt from the copyright holder's monopoly.

Fair Use

"If copyright is a fence,
then fair use is the gate."

—Negativland

The fair use principle, first established in an 1840 case over a biography of George Washington that was abridged from another, allows the reuse of otherwise copyright-protected material without permission or payment of fees of any kind under certain circumstances. It's a defense to a copyright infringement lawsuit that acknowledges that many kinds of reuse can promote cultural progress without harming the item's owner, and that those uses should be free (recall that the aim is to balance the private good against the public good, not to give copyright holders complete control over all possible aspects of a work). Just as copyright is limited, fair use allows only limited cultural reuses.

The fair use principle first solidified into statue in the Copyright Act of 1976. The law is worded vaguely, partly because the kinds of use that might be fair are so numerous and diverse and that no complete formal expression of what definitely is and isn't fair use was thought to be possible. Instead, the law lays out certain 'factors' to be considered by a court to determine whether the particular use before the court is fair:

"§ 107. Limitations on exclusive rights: Fair use.

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include–

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors."

Note that, despite musician's folklore, there's nothing like 'up to 8 notes is OK' or 'up to 3 seconds is OK,' only very general rules. Because of the vagueness, judges and juries– usually unschooled in copyright history and eager to see bad eggs punished– have frequently ruled against defendants raising fair use. As an unfortunate result, the trend in lower courts has lately been to presume that any commercial use is an infringement. This has led to a general sense that all appropriation requires payment, leading in turn to a climate of belligerence toward even the idea of using a music sample without permission and payment, no matter the circumstance. The 2 Live Crew opinion has reminded us that this stance wrongly confuses limited intellectual property rights with more nearly absolute physical property rights, and in fact runs contrary to the purpose of copyright.

The 2 Live Crew Case

In 1990 Acuff-Rose Music, Inc., who control Roy Orbison's Oh Pretty Woman, sued Luke Skyywalker (speaking of infringements), his group 2 Live Crew, and their record company for copyright infringement over their parody rap version of the same song, called just Pretty Woman, on their then-quarter-million-selling album As Clean As They Wanna Be (1989). (The case is known as Campbell v. Acuff-Rose because the publisher sued using Skyywalker's given name, Luther Campbell.) Musically, the track is based on the original song's bass line, and the lyrics are a rude and raunchy take-off that begins exactly the same as Orbison's version. The group had asked permission from Acuff-Rose at the time of the release, offering to pay for the use, but were turned down. They decided to put it out anyway.

2 Live Crew proved to the original court that as matters of law 1) their track was a parody of the older song, entitling them to claim fair use, 2) their appropriations were not excessive given Pretty Woman's nature as a parody, and 3) the possibility of their record harming the original's market was remote in the extreme– and so won the case without having to go through a trial. Acuff-Rose appealed, arguing that 1) the fair use defense should have been denied to the group because their record was commercial in nature and therefore must be presumed unfair, and 2) "by taking the 'heart' of the original and making it the 'heart' of a new work, 2 Live Crew had, qualitatively, taken too much" of the song. Acuff-Rose won the appeal: the original decision was reversed and the case was remanded to the original court in Tennessee.

Frustrated with the Court of Appeals' conclusion, 2 Live Crew resorted to a petition asking the U.S. Supreme Court to decide the issue of whether it is possible for their song to be found a fair use despite its 'commercial nature.' The Supreme Court agreed to consider the matter, and so 2 Live Crew's trial was delayed pending the decision. Now the Supreme Court has held that "2 Live Crew's commercial parody may be a fair use within the meaning of § 107," reversing the Court of Appeals' decision, and has remanded the case to the trial court for an evaluation of Pretty Woman under the new fair use criteria set forth in the same opinion.

The New Position On Fair Use

The Supreme Court took advantage of the opportunity of 2 Live Crew's petition to proclaim, not only on Pretty Woman specifically, but on the rules that govern the fair use defense generally. The Court elaborated on the first paragraph of Section 107, broadening what general types of uses may be found fair; on three of the four factors, clarifying how various aspects of a use may interact to tend to render it more fair or less fair; and on how to consider a particular use's composite showing under the four factors, calling for an interpretation of the factors as a multidimensional continuum rather than as a series of pass/fail tests all or most of which must be passed. In other words, it may be possible for poor showings on some factors to be balanced by better showings on other factors. Because this case involves a song parody and that pretty much defines its relation to the original, the decision says nothing new on the second factor, 'the nature of the copyrighted work'.

Although the new guidelines should find more uses fair than previously, this is not a liberal court, and the opinion is in an important sense conservative, shaking off precedents of overprotective case law and reaffirming the primeval intent of copyright law: to encourage the creation of new, progressive works, with a refreshing and healthy acceptance of the inescapable fact that everything new is built in large part on something old. Justice Souter is, however, careful to note that although parody obviously has to take from its object, there's still the question of how much is too muchand so litigated parodies, like all other alleged infringements raising the fair use defense, have to be evaluated along the four factors as they apply to the particular case.

To quote the opinion:

"[W]hile in the 'vast majority of cases... most infringements are simple piracy,' such cases are 'worlds apart from many of those raising reasonable contentions of fair use' where 'there may be a strong public interest in the publication of the secondary work...'... '[I]n 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 that was well known and used before....'[T]he statutory examples of permissible uses provide only general guidance. The four statutory factors are to be explored and weighed together in light of copyright's purpose of promoting science and the arts... The task is not to be simplified with bright-line rules, for the statute, like the doctrine it recognizes, calls for case-by-case analysis."

Factor 1:

"The purpose and character of the use, including whether such use
is of a commercial nature or is for nonprofit educational purposes."

The Court had the most to say about three possible aspects of an alleged infringement: its commerciality, the degree to which it transforms what was taken, and its effect of commenting on the source.

Crucially, in answering the primary question before it the Court determined that just because a use is commercial doesn't mean it can't be fair:

"The Court of Appeals...erred in giving virtually dispositive weight to the commercial nature of that parody" by misinterpreting the decision in Sony Corp. of America v. Universal Studios, Inc.— the famous Betamax case that legalized home VCR taping of broadcast TV shows. "If, indeed, commerciality carried presumptive force against a finding of fairness, the presumption would swallow nearly all of the illustrative uses listed in the preamble paragraph of § 107, including news reporting, comment, criticism, teaching, scholarship, and research, since these activities 'are generally conducted for profit in this country.'...Congress could not have intended such a rule..."

This position yields a side effect surprising to commonsense copyright notions:

"Accordingly, the mere fact that a use is educational and not for profit does not insulate it from a finding of infringement, any more than the commercial character of a use bars a finding of fairness."

The opinion also endorsed a criterion of 'transformation,' which although not present in the statute has appeared sporadically in recent case law:

"[T]he first...factor...focuses on whether the new work merely supersedes the objects of the original creation, or whether and to what extent it is 'transformative,' altering the original with new expression, meaning, or message. 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 central purpose [of the first factor]...is to see...whether the new work...adds something new, with a further purpose or different character...Although such transformative use is not absolutely necessary for a finding of fair use,...the goal of copyright...is generally furthered by the creation of transformative works...[P]arody has an obvious claim to transformative value"

In a concurring opinion (which doesn't carry the force of law as does the majority opinion), Justice Kennedy alone warns against insubstantially transforming the material and then claiming fair use when you get sued– a version of an existing song performed in a different musical style, for example, ordinarily wouldn't count as a fair use because the transformation is too weak.

In line with a recent lower court decision in sculptor Jeff Koons' String of Puppies case (Koons' exact sculptural realization of a copyrighted photograph was found to be unfair due to lack of comment and original contribution despite his intention to comment on popular taste), the Court suggests that some form of comment on the original work itself– even a raunchy comment– may be required in order to justify any taking at all:

"If...the commentary has no critical bearing on the substance or style of the original composition, which the alleged infringer merely uses to get attention or to avoid the drudgery in working up something fresh, the claim to fairness in borrowing from another's work diminishes accordingly (if it does not vanish), and other factors, like the extent of its commerciality, loom larger....The threshold question when fair use is raised in a parody is whether a parodic character may reasonably be perceived. Whether, going beyond that, parody is in good taste or bad taste does not and should not matter to fair use."

This last departs from case law that has sometimes denied the fair use defense on the basis of raunchiness alone.

Justice Kennedy's seperate comment stresses the commentary link at length:

"It is not enough that the parody use the original in a humorous fashion, however creative that humor may be. The parody must target the original, and not just its general style, the genre of art to which it belongs, or society as a whole (although if it targets the original, it may target those features as well)... [C]ourts should not accord fair use protection to profiteers who do no more than add a few silly words to someone else's song..."

However, Justice Souter, speaking on behalf of the Court, seems to find more categories potentially deserving of fair use than Justice Kennedy:

"A parody that more loosely targets an original...may still be sufficiently aimed at an original to come within our analysis of parody... [W]hen there is little or no risk of market substitution, whether because of the large extent of transformation of the earlier work, the new work's minimal distribution in the market, the small extent to which it borrows from an original, or other factors, taking parodic aim at an original is a less critical factor in the analysis, and looser forms of parody may be found to be fair use, as may satire with lesser justification for borrowing than would otherwise be required...Satire can stand on its own two feet and so requires justification for the very act of borrowing,"

implying that such justification in terms of the other factors is in fact possible. (Satire is defined here as a work 'in which prevalent follies or vices are assailed with ridicule' or 'attacked through irony, derision, or wit.')

The decision also holds that identification of a work as a parody isn't necessary to gain access to the fair use defense, you don't have to have a track record as a parodist to raise fair use, and having been turned down by a copyright holder doesn't reduce one's ability to claim fair use.

Factor 3:

"The amount and substantiality of the portion used
in relation to the copyrighted work as a whole."

This factor tends to interrelate with Factor 1 in light of the 'multidimensional continuum' nature of the four factors. Here the Court found that the Court of Appeals erred in holding that Pretty Woman copied excessively from Orbison, interpreting this factor to ask whether 'the amount and substantiality of the portion used' is excessive specifically in relation to the parodic purpose. This factor

"...calls for thought not only about the quantity of the materials used, but about their quality and importance, too...[W]hether 'a substantial portion of the infringing work was copied verbatim' from the copyrighted work is a relevant question... for it may reveal a dearth of transformative character or purpose under the first factor, or a greater likelihood of market harm under the fourth; a work composed primarily of an original, particularly its heart, with little added or changed, is more likely to be a merely superseding use, fulfilling demand for the original,..." and consequently unfair.

The Court acknowledged that parody by nature– depending on the audience's recognition of a work so that they'll 'get' the parody in the first place– requires more taking than most possibly allowable uses, including taking the most characteristic 'heart' of the original, and that this must be taken into account when considering a fair use defense for parody. However, their preference is still for minimal taking:

"Once enough has been taken to assure identification, how much more is reasonable will depend, say, on the extent to which the song's overriding purpose and character is to parody the original, or, in contrast, the likelihood that the parody may serve as a market substitute for the original..."

The court is serious about reserving this greater allowance to take for actual, creative parodies, but finds that Pretty Woman passes muster in this regard:

"[I]n parody...context is everything, and the question of fairness asks what else the parodist did besides go to the heart of the original...[2 Live Crew] is not a case...where a 'substantial portion' of the parody itself is composed of a 'verbatim' copying of the original. It is not, that is, a case where the parody is so insubstantial, as compared to the copying..."

that it loses on this factor.

Factor 4:

"The effect of the use upon the potential market for
or value of the copyrighted work.'

This is the only part of fair use that considers loss of income to the original copyright holder, and tends to be interrelated with Factors 1 and 3. The clarification here significantly narrowed owners' potential financial objections to reuse, correcting the Court of Appeal's presumption on this point:

"No 'presumption' or inference of market harm...is applicable to a case that involves something beyond mere duplication for commercial purposes,"

i.e. piracy of whole works. The Court noted that

"the importance of this factor will vary, not only with the amount of harm, but also with the relative strength of the showing on the other factors."

The Court found that although a parody can legitimately reduce sales of the original through ridicule, due to its nature a parody is unlikely to harm the original's market in terms of substitutive effect, and so will generally fare well under factor 4. Transformation is given another boost here:

"[W]hen...the second use is transformative, market substitution is at least less certain, and market harm may not be so readily inferred...We do not, of course, suggest that a parody may not harm the market at all, but when a lethal parody, like a scathing theatre review, kills demand for the original, it does not produce harm cognizable under the Copyright Act. Because 'parody may quite legitimately aim at garroting the original, destroying it commercially as well as artistically,'...the role of the courts is to distinguish between '[b]iting criticism [that merely] suppresses demand [and] copyright infringement [, which] usurps it.'...As to parody pure and simple, it is unlikely that the work will act as a substitute for the original..."

Factor 4 "...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..." ,

as well as for derivative works (a photograph of a painting is a derivative of the painting; a rendition of a song in a different style is a derivative of the original, etc.). Justice Souter notes that by not attempting to prove that their song, which in addition to being a parody also happens to be a rap version of Oh Pretty Woman, hasn't acted to supersede sales of a non-parody rap version by some hypothetical other artist, 2 Live Crew has left this question open.

In discussing the fourth factor Justice Souter notes:

"We express no opinion as to the derivative markets for works using elements of an original as vehicles for satire or amusement, making no comment on the original or criticism of it."

(Presumably this is in reference to untransformed elements.) Some attorneys think this is exactly the category into which the great majority of conventional music sampling falls, and that the point here is simply that this kind of use has to battle its way through the four-factor analysis like any other. In fair use both legislators and courts have always been reluctant to preemptively rule any category of use as wholly fair or unfair.

The Court's Answers to the Usual Objections to Sampling

In the frequently antagonistic debate over free sampling and other techniques of artistic appropriation, many opinions have been expressed as to exactly what it is that copyrights are here to do. All sides have claimed to find basis for their positions in their personal moral convictions, but in the U.S. the code governing proscribed behavior and avenues for redress of grievance is not varying morality, but law– and when it comes to copyright, the law just changed. [Ed. Note: Keyboard's legal consultant feels that the decision represents a clarification of existing law, not a change.] One way to look at the decision is to see how the new state of the law answers traditional objections to artistic appropriation and recent objections to suggestions on broadening fair use. A recent Commentary in Billboard magazine (March 5, 1994) served to collect those arguments, paraphrased here:

"To we who put in the time, energy, creative effort, and money necessary to create our music in the first place, the use of our work for commercial gain without payment or permission is intellectual and physical theft. Intellectual property is the same as physical property. You can't take my car without permission, and you can't take my creation without permission. In music, the 'right thing' is always for samplers to pay the people who own the property, i.e. the copyright holders. Extending fair use's allowances for free appropriation for parody, education, and commentary to some generalized 'artistic freedom' and 'free speech' interpretation is bizarre and would allow stealing for personal gain."

This argument erroneously elevates the individual's particular sense of right and wrong to the level of law, and absolutist stances of this kind are not in fact supported by American law– copyright is constitutional precisely because of the exceptions it allows under fair use. A copyright holder's rights have never depended upon the amount of resources it took to develop or acquire the work. In law, there are cases of fair use where neither permission nor payment are required ("If the use is otherwise fair, then no permission need be sought or granted") and by definition a fair use is not an infringement. As to the appropriator profiting, this was the central point of contention in the 2 Live Crew case. The Court held that a commercial use per se does not make use of a copyright-protected work an unfair infringement. As to the Constitutional differences between physical and intellectual property, physical property rights are ordinarily eternal, whereas intellectual property rights are of limited duration and extent. These limits were set to balance cultural and scientific development against private control. As to charges of physical theft, well, the copyright holder still has the original after the sample is taken.

One sometimes hears this more direct objection: "I made this record, and I'll be damned if anybody else is gonna make any money off it!" Although understandable to a point, this shows an incomplete understanding of copyright's scope and purpose. Creation simply does not bring an absolute monopoly to control all aspects of a work. A fragmentary, non-competing, transformed, commentary use may be OK even if it's commercial.

How Would Particular Works Fare Under the New Rules?

Another way to examine the implications of the new rules is to see how particular appropriative works that have been removed from the world in the past might fare under the new rules.

Gilligan's Island (Stairway), by Little Roger and the Goosebumps (1978), a commercial 45 RPM single that got a lot of radio airplay around the country as a novelty item, was a pretty straight cover of Stairway to Heaven— except that the words and part of the tune came from the Gilligan's Island theme. It was crushed by attorneys for Led Zeppelin's organization and removed from the world. This was an unusual kind of parody, sort of a parody by juxtaposition. Although hilarious and unlikely to replace the original Stairway in any way, this record would probably have a hard time under the new rules because of the subtlety of its comment on the original, and the limited transformation of the music taken– Justice Souter might like it, but Justice Kennedy certainly wouldn't.

Plunderphonic, by John Oswald (1989), a CD given away for free but made up 100% of often dazzlingly inventive edits of popular and classical music recordings– many different tracks of it– was crushed by the Canadian equivalent of the RIAA and removed from the world (literally, the CDs were confiscated and crushed in a machine). There's no chance Plunderphonic would ever replace any of its originals; most of its takings were highly "transformative" via extreme editing; it was non-commercial; and most of its takings were brief. All of this helps, so Plunderphonic fares better than Gilligan's Island (Stairway), but whether the net is positive is arguable because some of the takings were lengthy, and, although some of us in the arts can see these pieces as commenting on the originals, unmusical courts might have a harder time.

U2, by Negativland (1991), a vinyl/CD/cassette commercial release of two parody versions of U2's I Still Haven't Found What I'm Looking For, including outtakes of DJ Casey Kasem, was crushed and removed from the world by U2's record label and music publishing company. Although possible grounds existed under U.S. trademark law to object to the release's title and cover (large letter U and numeral 2), and to the celebrity tapes under 'right to publicity' law, the new fair use guidelines tend to legitimate the recording itself under copyright law. The parody included the original music and lyrics, both obviously transformed for comedic effect, a sample from the original recording, and tapes commenting on the record business in general and U2 in particular. There was no possible effect of substituting for the original U2 recording of the song (other than because of the cover, which could have been changed)— not least because of the record's limited distribution (7000 copies vs. U2's umpteen million). Ironically, the big "U2" on the cover that made the record vulnerable to trademark law might help demonstrate the commentary link to the original work favored by the new fair use rules, making it more legal rather than less.

Summary of the New, Interrelated Fair Use Rules

  • The less the new work replaces the original work in its own market— or in its possible future markets– the more likely it is to be fair. This aspect is ordinarily given more weight than any other in order to discourage uses leading to actual loss to the copyright holder. Reduced distribution, extensive transformation of the taking, and lesser taking tend to lessen possible market replacement effects, and make a use more likely to be fair. A criticism of an original is ordinarily held to compete in a different market than the original, and so is less vulnerable on this point. There is no explicit maximum tolerable threshold for market harm.
  • The more the new work comments upon the original work, the more likely it is to be fair, or the more leeway it may be afforded in the other areas (for example the more of it can probably be used). In commenting on the original, it can be extremely mean, even to the point of destroying the demand for the original work; but remember that it's possible in a work of art to violate laws other than copyright: celebrity names, images, and voices may be protected by right of privacy and right of publicity law; product names including band names and titles of works can be protected under trademark law; and slander and libel are still illegal. The new work needn't be an aesthetically successful commentary, so long as the intention to actually be some form of commentary is discernible. There is no explicit minimum required threshold for degree of commentary, but some on the Court would prefer to see the presence of some comment, even a minimal one, as a prerequisite for any fair use protection at all.
  • The less taken, the more likely the use is fair ('less' including how central to the original work the taking is, not just the amount). The Court strongly discourages excessive taking, although there is no explicit maximum tolerable threshold for the amount taken– the more the nature of the new work requires taking (as in parody), the more likely a greater taking is to be found fair. But don't try calling something a parody when it isn't to try to justify excessive taking.
  • The more transformative the use, the more likely the use is fair. 'Transformative' here means that the taking is changed either materially or in terms of its meaning– for example, by recontextualizing. I suppose we could say the more creative the use is, the more likely the use is fair. There is no explicit minimum required threshold for degree of transformation, but truncation alone is probably inadequate.
  • The less commercial and/or less distributed the new work is, the more likely it is to be fair. Although there is no explicit maximum tolerable threshold for commerciality, advertising uses are less likely to be found fair. However, a poor showing on the other factors can make even a completely non-commercial use unfair.

To simplify the whole thing to an almost dangerous point: Copyright law encourages creation itself. Taking from a copyright-protected work in order to create a new one can be OK as long as you don't damage the original by replacing it, you don't merely capitalize on the original, and you add something significant to what you take. If it's not something new, it's an infringement– but if you've really created something, you can raise the fair use defense.

Where the Court Could Have Gone Farther (An Opinion)

As we say, this is not a liberal Court. We're disappointed the Court didn't take this opportunity to reverse the unfortunate trend set in the Jeff Koons case and de-emphasize their position that a copyer's intention really ought to include commenting on the particular work copied. Dropping this criterion would have been consistent with the reaffirmation of copyright's fundamental purpose as promoting new works. There are plenty of perceptually and aesthetically interesting works to be made from taking existing material– even whole pieces– and creatively mutating them without necessarily imparting any particular effect of changing their 'meaning' or commenting per se on the original. Likewise, it's possible to construct collage works that make use of untransformed, individually unremarkable cultural objects to good effect. Such mutations and collages in no way replace the originals in their own or derivative markets.

The Court's position in this regard fails to recognize that a realm of aesthetic social value in terms of a work's perceptual effect or conceptual content may exist, perhaps not even particularly related to the material content– think of surrealism, for example. There's also no acknowledgment that artists have the job of trying to make sense of our world through their work, a world increasingly consisting of media objects, and that it's natural and positive that existing media's texture and even content have begun to appear in new works of art– even when only for evocative effect. When all these kinds of uses result in no loss to the copyright owner they too should have access to the fair use defense.

It's also unfortunate that Justice Kennedy wags a disapproving "Don't try this at home, kids!" finger at those who would try their hand at parody and other forms of creative appropriation in the wake of this decision when its apparent message is that there is now more room for creative fragmentary reuse of material, not less. At least the decision clarified that the four-factor test is a continuum, and uses are more likely to be found fair the more the reused item is transformed or supplanted by other material.

The Fogerty Decision on Attorney's Fees

The Supreme Court's March decision in Fogerty vs. Fantasy both follows the 2 Live Crew decision ideologically and reinforces it operationally. Interestingly, the Fogerty opinion resulted from songwriter John Fogerty being sued for copyright infringement for copying from himself. Fantasy claimed his 1985 song Old Man Down the Road infringed the music of his 1970 Creedence Clearwater Revival song Run Through the Jungle, which they control. Fogerty won and asked to be awarded his attorney's fees, as statute allows. Fantasy successfully argued that precedent in the Court of Appeals in Los Angeles allowed infringement defendants' attorney fees to be awarded only if the plaintiff had sued 'frivolously or in bad faith'. Prevailing plaintiffs, on the other hand, have almost automatically been awarded their attorney's fees.

Fogerty petitioned the Supreme Court to address this inequality, and won. The Supreme Court grounded its decision on the fact that, when it comes to promoting the 'public good' policy of the Copyright Act, it can be just as important for a defendant to defeat a copyright infringement suit as it can be for a plaintiff to prevail. The Court's new 'even-handed' standard, that the winner may at the discretion of the trial court be awarded attorney's fees whether plaintiff or defendant, now applies to all U.S. courts.

Analysis

It's been suggested that the Court agreed to examine these two cases in part to counter a recent tendency to see intellectual property rights as virtually permanent and unlimited monopolies, and perhaps in part to lessen the excessive copyright litigation clogging the courts– sensible, given the transition from industrialization to the information age. The legal community's reaction to the 2 Live Crew decision has been mixed, but some observers feel that the Court has struck a major blow for free speech and business growth in their eternal tension with intellectual property rights– some might say the dynamic of society has been given a boost over the preservation of wealth.

Some lawyers think copyright's monopoly has been clarified to exist only to the extent necessary to further the law's fundamental purpose, i.e. promoting the creation of new works– they see in the opinion a statement that the monopoly only arises as an instrument of that purpose, and that where copyright protections would work against that purpose the monopoly is to be restrained, i.e. by fair use. At the least, the Court has reminded us that our traditional, commonsense notion of an absolute copyright monopoly is flawed.

So now we must all re-evaluate our positions.

We as artists can use the new guidelines in deciding when a detected or contemplated appropriation may be allowable under the law and, therefore, whether an infringement lawsuit is worth bringing, defending, or risking. Some lawyers imagine a short-term flurry of lawsuits as publishers of all kinds try to hem in the decision with more restrictive interpretations, but most conclude that a use that might pass under the new rules is now less likely to result in a lawsuit. As a result, the prevailing hostile climate toward reuse of material is likely to soften, if only grudgingly. We all have to admit that the new rules allow more than we used to think the old ones did.

For artists who appropriate, whether this amounts to good or bad news for you personally depends upon the kind of work you would like to do and how you release your work. If you're small and you like to take real short bits and process the bejesus out of 'em, you should still have no problems (keep it up!). If you're on a big label and you want to make records with recognizable samples from other pop records, or if you just really want to avoid any possibility of a lawsuitwell, you should consider letting your label's sampling clearance lawyers do their usual thing.

All us in-betweeners will have to think over the work we want to do in light of the new guidelines and decide on a case-by-case basis. Everyone who is doing– or would like to do– work involving appropriation should get a copy of the complete text of the opinion, study it carefully, and talk to a lawyer for advice if there's any doubt about particular things you want to do. (Many organizations offer free or cheap legal referrals for artists, such as California Lawyers for the Arts or Volunteer Lawyers for the Arts in New York.)

The question "Can I sample that?" has rarely had a simple answer. Copyright is still born with a work and automatically adheres to its creator. Making a work that includes any amount of another party's copyright-protected material without an arrangement with that party has always been to risk a lawsuit, and this broadening of fair use isn't necessarily going to keep you from being sued in the first place. If somebody's mad enough and rich enough to hire a lawyer they can still sue you no matter how fair you may think the use is.

Being sued is a truly awful and potentially bankrupting experience. But don't be cowed too easily: in many cases the risk is vanishingly small. An 'infringement' isn't an infringement until a court says it's an infringement, and now more kinds of appropriation have been made allowable. If you are sued over a truly fair sample and you can fight it off in court, the law gives you certain protections, including in the wake of Fogerty an increased likelihood of recovering your legal fees.

As for the other side, with the increased likelihood of being stuck with both sides' legal bills, angry copyright holders should think carefully before filing suit against an 'infringement' with possible fair use defenses under the new guidelines.

Conclusion

Maybe someday someone will take a fair use sampling case to the Supreme Court and we'll learn more about the rules as they apply to that particular situation, but until then the 2 Live Crew opinion is the best guidance we have. The good news for everybody– including the taxpaying public– is that the combination of Fogerty and the Pretty Woman case is likely to reduce the number of copyright infringement lawsuits generally. Closer to home, sampling suits (and threats of sampling suits) should lessen as artists work with the guidelines in mind and record companies pick their fights more carefully.

Negativland is a group that has been sued twice for copyright infringement over collage and parody works, and has recently devoted itself to advocating a reform of U.S. copyright laws.

Negativland thanks its lawyers Adam Belsky, Jeff Selman, and Alan Korn,
and artists John Oswald, Roger Clark, and Dick Bright.

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