“Fair Use” Precedent Setters “2 Live Crew” are back in the news

A long time ago, 2 Live Crew sold the rights to some of their better known music. It was long enough ago, that they might now be able to get it back.

But that story is developing, and it’s not really a musicological matter anyway.

It’s a reminder of what an amazing story 2 Live Crew became a few decades back and that Luther Campbell and his trio of Nasty As They Wanna Be hip hop artists, challenged an infringement claim, went to the supreme court, won, and found themselves, “Campbell v Acuff-Rose” as legal precedent for evermore.

What’s “fair use?”

Music copyright infringement occurs when a person uses a copyrighted musical work without permission from the copyright owner. Fair use is a defense against a claim of copyright infringement. It’s a doctrine in U.S. copyright law that allows the use of copyrighted material without permission from the copyright owner but it requires certain circumstances. It’s noble by design. The purpose of fair use is to balance the interests of copyright holders with the public’s interest in using copyrighted works creatively and innovatively. That’s true of copyright in general, I think.

In determining whether a use of a copyrighted work is “fair,” courts consider four factors: the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion used, and the effect of the use on the potential market for or value of the copyrighted work.

For example, a person who creates a remix of a song for their personal enjoyment or to share with friends may be considered to be engaging in fair use. On the other hand, using a copyrighted song in a commercial without permission from the copyright owner is less likely fair use because arguably, it is being used for commercial gain and may well harm the market value of the original work.

Whether a particular use is considered fair use is determined on a case-by-case basis and can be difficult to predict. Some well-worn potential justifications include uses for purposes such as criticism, commentary, news reporting, teaching, scholarship, or research.

When it comes to music, some common examples of fair use may include using a short clip of a song in a review or critique, or using a song in a parody. But I intentionally left out a key wrinkle, which is that fair use wants your parody to be parodying the song you’re using and your critique to be a critique of the song. You can’t necessarily make a parody on any topic you want, use “White Christmas” to do it and call it fair use, but you might be able to do a send-up parody of “White Christmas.”

Simply stating that something is “fair use” does not make it so. Each case must be evaluated on its own merits and the four factors listed above must be considered.

Which brings us back to 2 Live Crew! The most famous case I can recall, in music at least, is the “Pretty Woman” lawsuit. (There’s a pretty big case going on in the art and photography world right now.)

Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994), was a case in which the Supreme Court of the United States held that a parody of a copyrighted work may be considered fair use. The case involved 2 Live Crew’s song “Pretty Woman,” which was a parody of the Roy Orbison song “Oh, Pretty Woman.”

The case arose when the owners of the copyright for the original song, Acuff-Rose Music, Inc., sued 2 Live Crew for copyright infringement. 2 Live Crew argued that their song was a parody and therefore qualified as fair use under copyright law. The District Court ruled in favor of Acuff-Rose, but the Court of Appeals reversed the decision.

The Supreme Court upheld the Court of Appeals’ decision. The Court noted that the purpose of copyright law is to promote the creation of new works, and that allowing parodies can serve this purpose by providing a way for authors to comment on or criticize existing works.

The Court also emphasized that the fair use determination must be made on a case-by-case basis, taking into account the specific facts and circumstances of each case. In this case, the Court found that 2 Live Crew’s song was a transformative work that added something new and different to the original, and did not simply copy the original for commercial gain.

But while fair use can sometimes allow for the use of copyrighted material without permission, it’s important to understand the limitations of the doctrine. Tread carefully before using someone else’s work without permission or license.