Brief Fact Summary. 2 Live Crew (Defendant) argued that its parody of Roy Orbison’s song, â€œOh, Pretty Woman,â€ was a fair use within the meaning of the Copyright Act of 1976. The appellate court, however, concluded the parody was presumptively unfair because of its commercial nature.
Synopsis of Rule of Law. For fair use purposes, the commercial purpose of a work is only one element of the inquiry into the purpose and character of the work.
Every book in literature, science and art, borrows, and must necessarily borrow, and use much which was well known and used before.View Full Point of Law
Issue. For fair use purposes, is the commercial purpose of a work the decisive element of the inquiry into the purpose and character of the work?
Held. (Souter, J.) No. For fair use purposes, the commercial purpose of a work is only one element of the inquiry into the purpose and character of the work. The other elements to be considered are the nature of the copyrighted work, the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and the effect of the use upon the potential market for the copyrighted work. In this case, it was error for the court of appeals to conclude that the commercial nature of 2 Live Crew’s (Defendant) parody rendered it presumptively unfair. No such evidentiary presumption exists for either the first factor (the character and purpose of the use) or the fourth factor (market harm). The court also erred in holding that 2 Live Crew (Defendant) had copied excessively from the Orbison original, considering the satiric purpose of their version. Reversed and remanded to evaluate the amount taken from the original, its transformative elements, and potential for market harm.
Discussion. Dictionaries define â€œparodyâ€ as a work of art or literature that imitates the characteristic style of an author or a work for ridicule or comic effect. Copyright law recognizes that a parodist must use some elements of a prior author’s composition in order to make a new one that comments on that authors work. Parody needs to imitate an original to make its point, but it may or may not be fair use depending on whether it could be seen as commenting on, or criticizing, the original.