This note accompanies the follow episode(s):
The Writer’s Almanac for March 7, 2017: A World of Singers

Mar. 7, 2017: on this day: Supreme Court rules that parodies do not require the permission of the original copyright holder

On this date in 1994, the Supreme Court ruled that parodies do not require the permission of the original copyright holder. The case had its origins in the “fair use doctrine,” which is a limited legal exception to a creator’s control over his or her copyrighted work. Traditional examples of fair use of copyright-protected work include commentary, criticism, parody, news reporting, educational purposes, and library archiving.

The fair use doctrine was originally spelled out in the 1976 Federal Copyright Act. The act lists four areas that should be considered when determining whether a copyright protection has been violated: the nature of the original work; how much of it is used; the character of the new work; and the impact it will have on the market for the original work.

The Supreme Court case that was decided on this day was Campbell v. Acuff-Rose Music, Inc. The rap group 2 Live Crew contacted Acuff-Rose Music because they wanted to write a parody of the Roy Orbison hit “Oh, Pretty Woman.” Acuff-Rose refused to grant permission, even though the band intended to pay for the rights. But 2 Live Crew went ahead with their parody, which they called “Pretty Woman.” They lifted the signature bass line directly from the Roy Orbison version. The song’s lyrics describe a future where the “pretty woman” of Orbison’s song is now a hairy-bodied, bald, two-timing woman. Nearly a year after the song was released, Acuff-Rose sued Luther Campbell, the leader of 2 Live Crew. The district court ruled in favor of Campbell, but Acuff-Rose appealed the decision, and the appeals court reversed the lower court’s decision, ruling in favor of the publisher because 2 Live Crew had used the copyrighted material for their own commercial gain, even though they credited the original songwriters and publisher. The case went to the Supreme Court, who ruled in favor of Luther Campbell.

Justice David Souter delivered the opinion of the court. He emphasized that every fair use case must be decided on a case-by-case basis, after looking carefully at all four factors described by the Federal Copyright Act. He wrote that a new work of parody must present “something new, with a further purpose or different character, alternating the first with new expression, meaning, or message.” The justices unanimously ruled that “Pretty Woman” met that standard. Souter wrote: “2 Live Crew juxtaposes the romantic musings of a man whose fantasy comes true, with degrading taunts, a bawdy demand for sex, and a sigh of relief from paternal responsibility. The later words can be taken as a comment on the naiveté of the original of an earlier day, as a rejection of its sentiment that ignores the ugliness of street life and the debasement that it signifies.”

Since 1994, the case has had huge implications for the internet. Without the Supreme Court’s ruling, search engines would be unable to display copyright-protected material in their search results. Parents would not be able to upload videos of their kids dancing to copyright-protected songs. And as a direct result of this ruling, Google even won the right to digitally scan entire books without the copyright holders’ permission — millions of books — for an online database in 2013.