Wednesday Writs for 7/3
L1: Sing it with me:
[To the tune of pretty woman]:
You need to shave that stuff
[Big hairy woman] You know, I bet it’s tough
[Big hairy woman] All that hair, it ain’t legi-i-it
[‘Cause you look like Cousin I-I-I-I-It]
[Big hairy woman]
Penned by Luther Campbell in 1989, these were the vaunted lyrics of 2 Live Crew’s version of Roy Orbison’s iconic “Pretty Woman”- with an obvious twist. Campbell and the Crew sought official permission from Acuff-Rose Music, Inc., the owner of Orbison’s song, but they were turned down. The group, famous for their raunchy lyrics, “Me So Horny”, and being officially labeled “obscene” by Broward County, Florida’s circuit court, recorded their parody anyway. Acuff-Rose filed suit for copyright infringement a year later, after over 250,000 copies of the song were sold. The plaintiffs argued that there could be no “fair use” where unauthorized parody resulted in monetary gain. The federal District Court for the Middle District of Tennessee, the first court to hear the suit, tossed it out, agreeing with the Crew that monetary gain was not the deciding factor in fair use. Further, the rappers argued, their song was unlikely to negatively impact the market for Orbison’s version. In other words, the folks interested in the classic standard were probably not likely to purchase the 2 Live Crew version instead.
The Sixth Circuit Court of Appeals reversed and remanded, agreeing the song was parody but ruling that the District Court failed to place enough weight on the commercial value of the work. The Crew appealed, in Luther Campbell v. Acuff-Rose Music, Inc., our case of the week.
At the outset, the Court found that the 2 Live Crew song was undoubtedly a violation of copyright unless it fell under the “fair use through parody” exception:
Ҥ 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.
Justice Souter, writing for a unanimous Court, opined that the Crew’s version was inherently critical of Orbison’s:
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 naivete 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. It is this joinder of reference and ridicule that marks off the author’s choice of parody from the other types of comment and criticism that traditionally have had a claim to fair use protection as transformative works.
The Court went on to say the Court of Appeals erred in its holding that the commercial use of a work was the deciding factor against parody being fair use, stating that it is but one factor to be considered. The difference between parody and, say, ripping off a melody or riff (see: Vanilla Ice’s “Ice, Ice Baby” and Queen/David Bowie’s “Under Pressure”, a dispute settled out of court) is that one is, per the Court, “to avoid the drudgery in working up something fresh”, versus an intent to transform a specific work in a humorous or critical way. Acuff-Rose also argued that because the Crew sought permission and was denied, they must not have intended fair use, but the Court attributed their action to good faith courtesy, not an acknowledgment that such was required. Fair use is fair use, and permission would have been superfluous.
In the end, the 1994 decision by the Supreme Court in 2 Live Crew’s favor was a significant one, recognizing once and for all that parody is fair use. While this would seem to be good news for the king of parodies, Weird Al Yankovich, Al has a personal policy of never creating a parody without the blessing of the original artist. In fact, being parodied by Weird Al has become something of an honor to musicians, proof positive that they’ve hit the big time.
L2: Last year Florida restored the right of felons to vote; this year, they yanked that right back for those with outstanding fines or court costs. A federal judge will hear the resulting lawsuit filed by several of those affected.
L3: On the issue of partisan gerrymandering, SCOTUS punted last week– a maneuver the Court seems to do a lot of these days on hot-button issues.
L4: It remains to be seen if they do so on this challenge to the President’s actions on DACA, which the Court has agreed to hear.
L5: Two judges attending a judicial conference go out barhopping and end up in the parking lot of a White Castle. One of them gets into a fist fight with two other men and both judges get shot. This is not a weird joke, this is a true story… and one of the judges is now indicted.
L6: And then there’s this judge, in the running for racking up a record number of ethics violations.
L7: And if you’ve had enough of bad judges and their, uh, ill-advised comments on rape cases, you won’t want to read this.
L8: Enough about judges. Here’s some shameful lawyering: There are bad arguments, and then there is suggesting that it may never rain in Cincinnati again.
L9: In addition to our case of the week, here are seven other times music changed the law.
Until next week, I leave you with my personal favorite Weird Al parody:
I love fair use and I hate copyright law.
I am a fan of parody being protected under fair use. I think that parody is an exceptionally important tool when it comes to criticism and, yes, humor.
But I don’t want judges to be able to say that “Ice Ice Baby” isn’t a parody of “Under Pressure”.
How are covers done, anyway? If I want to do a cover of Toto’s Africa, I should be able to do it. I just have to make sure that David Paich gets a piece of the action as defined by current music law, right? He can withhold his blessing but not his permission because permission is not his to give.
I mean, it’d be weird if I wouldn’t be able to sing Africa but I could sing a song about body parts and/or functions to the tune of Africa…
To use your favorite Weird Al song as an example, here’s who he has listed as the writers of Word Crimes (according to wikipedia): Robin Thicke, Pharrell Williams, Clifford Harris Jr., Marvin Gaye, Yankovic.
So, even in parody, Clifford Harris Jr. gets a piece of the action.Report
The interesting thing about Toto’s “Africa” is that the rules for live performance are different from the rules for recording.
For live performance, David Paich (probably) can’t say no. The rights for live performance are either held by ASCAP or BMI. And you pay a small fee to them, and they distribute the fees they collect to rights-holders according to a formula that they work out. (It’s related to popularity charts). Hmm, I see there’s a third organization these days: SESAC.
ASCAP says it handles “performance royalties” both live and broadcast. I don’t exactly know how that affects recordings, but I don’t think it does. I think that’s a separate channel.
The reason a song to the tune of Africa might be acceptable is that a parody is unlikely to diminish demand for the original, while a straight-up cover might well. That’s why they are different. And what I read in Souter’s opinion is that reference to the original is what makes it “criticism”, so some lyrics that did not particularly reference the original lyrics might well not pass muster, as they might well “muddy the waters” and detract from sales of the original.Report
Telling a woman that she looks like Cousin It is a reference to the original, I suppose…
Using that broad of a definition of criticism/parody, I am certain that my humorous song based on Avril Lavigne’s “Complicated” will meet muster.Report
Speaking of judges and rape. The Army should know better.Report
I think the appellate judges got it right.Report
You would.Report
Anyone who can slide into a female soldier’s sleeping bag, itself laying on top of crinkly Mylar, while closely surrounded by other cadets on a quiet night, and not wake her or anyone else up, is a freakin’ super ninja who could slip into Tehran and take out their entire leadership with a #2 pencil.
That kind of nagging question is just one of the basic reasons why the appellate court found that the facts didn’t support the standard of “beyond a reasonable doubt”. They raised many other questions, too.
Their ruling is linked in the story Oscar Gordon cited, if you want to read it.Report
“Anyone who can slide into a female soldier’s sleeping bag, itself laying on top of crinkly Mylar, while closely surrounded by other cadets on a quiet night, and not wake her or anyone else up, is a freakin’ super ninja who could slip into Tehran and take out their entire leadership with a #2 pencil.”
But he did do that. His semen was left behind. His defense was consent, not that it didn’t happen so this makes no sense. And if you, or those judges, can’t think of reasons why a woman might not make a sound in that situation, you are all beyond help.Report
Do you think it is reasonable that they might have been messing around and didn’t want to get caught?
The question isn’t whether her story is plausible, it’s whether his story is also plausible. They found that it was, and said it was more plausible, and more supported by evidence, than hers.
So they tossed out the sentence of 21 years in a military prison.Report
They took the determination of the facts out of the province of the jury.Report
It’s not a jury like a civilian jury. It’s a jury of military personnel chosen by the officer bringing the charges, and it only needs a two-thirds majority to convict.
It also might be subject to outside pressure, such as “It would be a lot better for the service, the academy, and your future if we look like we’re doing something on these assault cases, or the brass is going to throw a fit because they’ll get grilled in front of the Senate.”
I don’t know if any of that happened, but the appellate judges are probably aware of the potential flaws in their system.Report
L5: Judge not.Report
L3 – I wouldn’t call that a punt. It was a clear statement that they (and by extension, all) judges have no business deciding what are political matters. That they are for the legislative branch. As it should be, due to the separation of powers. People seem to want clear cut answers that result in their opinions to be set in stone, but the system is designed to work against that. As it should be.Report
For what it’s worth, I have heard that while Weird Al insists he got permission to parody Coolio’s “Gansta Paradise” with “Amish Paradise”, Coolio says he didn’t give permission.Report
Yeah, seems like there was a miscommunication there.Report
Weird Al subsequently paid all of the requisite royalties rather than just go with fair use. Coolio has been quoted as saying his decision to refuse the parody was stupid and that he apologized to Al.Report
Good stuff Em.Report
Why thank you!Report
Is The Saga Begins fair use when anyone in his right mind would choose to listen to it rather than watch The Phantom Menace?Report
That, or “I Want A New Duck”…Report
L2: Last year Florida voters restored the right of felons to vote; this year, the GOP legislature took that right back from as many people as they could.
FTFYReport
L3: On the issue of partisan gerrymandering, SCOTUS awarded legislatures a license to do anything they like, including racially motivated districting so long as they can maintain any fig leaf that there’s a different motivation. This is a decision in the grand tradition of Shelby County. It is now unconditional surrender for any state not to gerrymander.Report
L5: Harold and Kumar may seem easygoing, but do not push them too far.Report
[L1] Don’t assume this means that you can just do whatever you want and call it Fair Use Parody, though. DeVore v Henley and many other cases have acted to limit the degree to which you can claim the right to republish protected material via transformative use; in particular, Souter’s reasoning about “direct criticism” is important.Report
Souter’s reasoning about “direct criticism” is important.
I understand that it might be, in theory, but if 2 Live Crew’s “Pretty Woman” constitutes “direct criticism”, I imagine that the term is used broadly enough to dilute its importance.Report
Well, this was back when we were all stupid fools who thought that free speech was more important than people’s right to not feel threatened; you have to expect plenty of bullshit equivocal gaslighting pro-white-male-corporate reasoning from people back then.Report
I used to think it was about Free Speech.
Now I see that it’s yet another example of Naive Power Dynamics at play.Report