In a case that could decide whether authors can profit from those who satirize their work, the U.S. Supreme Court on Tuesday wrestled with the question of rap group 2 Live Crew’s parody of Roy Orbison’s hit “Oh, Pretty Woman.”
The high court’s biggest current showbiz battle, the “fair use” issue will be decided next spring in Campbell vs. Acuff-Rose Music Inc., otherwise known as the 2 Live Crew case.
At issue is a lower court decision that said the rap group’s satirical version of the song does not qualify for copyright protection because its “blatantly commercial purpose” barred it from being a fair use.
In an hour of oral arguments, attorneys for both sides were peppered with questions from justices reveling in the role of devil’s advocate. Can any commercial exploitation of a work be considered fair? Who has the burden of showing economic harm from a parody? Should the rap group be permitted to copyright its parody? What happens if someone parodies the parody?
Although the primary question before the court involved parodies, attorney Sidney Rosdeitcher argued that the rap group’s 1989 song was anything but. “This case is not about parody, it’s about rap music,” said the lawyer for Acuff-Rose Music Inc. “It involves a rap version of a rock ‘n’ roll classic aimed at giving rap a mainstream appeal.”
He accused 2 Live Crew of swiping for commercial gain the “powerful, jolting guitar riff” of the Orbison-William Dees song and playing it 16 times. The group did so purely to exploit the rap market for the song, a move that injured the copyright owners. “They’re free-riding on our success and have impaired a market we could have exploited,” he said.
Attorney Bruce Rogow, representing the rappers, said the song was indeed a parody. “Has the market for the original Orbison song been harmed or supplanted by the work? Absolutely not.”