The Supreme Court ruled Monday that 2 Live Crew’s rap version of “Oh, Pretty Woman” qualifies as a full-fledged parody, thus protecting it from a copyright infringement suit from the owners of the Roy Orbison hit.
The unanimous ruling should solidify protection from copyright infringement suits for parodies such as Mark Russell’s political ditties on PBS, Weird Al Yankovic’s takeoffs of Michael Jackson and radio deejay Steve Dahl’s outrageous versions of Pink Floyd tunes. The ruling will also apply to film parodies, such as the two “Hot Shots!” films and TV shows like “In Living Color” and “Saturday Night Live.”
The high court ruled that the parody version by the 2 Live Crew rappers of Roy Orbison’s 1964 classic “Oh, Pretty Woman” may constitute fair use under current copyright law.
Justice David Souter, writing the majority opinion, said the court rejected a lower court argument that the copyright owners must grant approval for commercial song parodies.
The dispute arose when Crew singer Luther Campbell penned his version in 1989 , titled “Pretty Woman.” He testified that he wanted to make a humorous satire of the original work.
Although the lyrics of the two songs start out the same, the parody version takes on what the plaintiffs called a more “vulgar” tone.
“Big hairy woman, you need to shave that stuff. Big hairy woman — you know I bet it’s tough,” says the rap version, which later adds, “Two timin’ woman, now I know the baby ain’t mine.”
2 Live Crew released its version on the album “As Clean as They Wanna Be,” giving credit to the co-authors Orbison and William Dees, as well as to the publishing firm.
Acuff-Rose, which had denied the rappers permission to use the original, then sued, charging copyright infringement. At stake was more than $ 13 million in royalties.
Ohio’s court reinstated
A federal judge threw out the suit, but a U.S. Court of Appeals in Ohio reinstated it, ruling that 2 Live Crew had copied excessively from the original song.
Souter said the appeals court’s decision was wrong.
“It is true, of course, that 2 Live Crew copied the characteristic opening bass riff of the original and true that the words of the first line copy the Orbison lyrics,” he said.
“If 2 Live Crew had copied a significantly less memorable part of the original, it is difficult to see how its (parody) would have come through,” Souter said.
“Moreover, 2 Live Crew thereafter departed markedly from the Orbison lyrics and produced otherwise distinctive music,” he said.
Souter rejected the argument that the parody version hurts the potential market or value for the original song. He said the rap parody was aimed at an entirely different market than the Orbison song.
David Nimmer, a Los Angeles attorney and copyright expert whose book on the subject –“Nimmer on Copyright”– was cited in the trial, said the ruling will affect songs, films, plays, TV skits, sitcoms, virtually anything that can be considered a parody.
Peace of mind
He said the decision does not actually provide any legal protection for parodies but should give parody writers peace of mind against copyright infringement suits.
“The Supreme Court has set to rest their fears,” he said. “It will mean that the courts will deal with these on a case-by-case basis. They’ll look at all the circumstances involved.”
“If the decision had been the other way, they all would have been out the window,” Nimmer added. “The (parody) genre itself is protected.”
Supporting rap’s defense
Gotham-based copyright attorney Philippe Bennett, who reps a number of smaller songwriting clients, said that while parodist Mark Russell and the political singing group the Capitol Steps filed briefs supporting the rap group’s defense, Michael Jackson, Dolly Parton and the estate of George and Ira Gershwin filed court papers backing the original owners of the music.
“It’s the commercial value question at all times,” he said. “How important is this parody going to be commercially? What is the likely repercussion to the original copyright owner?”