Next on AMERICAN the courts. C.-SPAN takes a look at the U.S. Supreme Court case. Campbell versus Rose music incorporated. This case involves the rap group two Live Crew and their music company. Luke records which recorded and sold a parody of the song. Oprah the woman. Co-written by Roy Orbison and way M.D.S.. A cough rose which owns the rights to Oh Pretty Woman. Sued. To Live Crew and Luke records in U.S. district court for violating their copyright. The court ruled in favor of two Live Crew. But the decision was reversed by the U.S. Court of Appeals for the Sixth Circuit. Luther Campbell and other members of two Live Crew. Appeal to the U.S. Supreme Court. The case will be heard by the High Court on Tuesday November ninth. C.-SPAN travel to South Florida to interview Luther Campbell and fresh kid ice. Members of two Live Crew. And looking at this case. C.-SPAN also brings you interviews with William D's. Co-author of Oh Pretty Woman and others. Interested in the cases. Outcome. But first we bring you an interview with Luther Campbell of two Live Crew from his Luke records office in Liberty City Florida. There's a candle president of look records and member of the group to Live Crew. How did it come about your party to a case before the...
Supreme Court is the weirdest thing ever ever happen to
think. And this is just our guest. Back for their. Big problem is you want to be. You know album out by start banging start getting into homes where people want normally via rap music and. Now I was right. Right wing organizations. Start like picking the them apart. And what happens pretty woman are near called up soon. Incorporated in started. You know in part feel that you know his rap at the time was screen knowledge controversy. Should be singing I think that's basically you know...
where our star there. Why did you
thank you Carrie that's not.
Yeah. Well we just you know. We
saw was a popular song and. Well we always. I think at the
time we had our archivist was like. His
peak. You know doing all the Michael Jackson. Beat it records and all their
it was just something that
we wanted to do we just want to have fun with the record and before you know it. You know we did you know we we didn't we didn't do it to have any changes. Ruin it. Copyright. That's the reason why you don't see it on the...
as nasty as they want to be album is only on as clean as they want to be. And that's like the. The most important thing. As in this case because you know we tried to ruin a copyright. And we're saying you know just because we have crew and we do do. Virgin Records. Coming we was we had no intention...
of doing it. We play a little bit of the original version and then I'll see your version for
those during the First let's do roller
coasters. To do
the right ones
who are the Q
Does up didn't do a great job
where we play our version.
So there is no voice. You know a big game and I know
you need to hear yours. You want
to hear over OK those intimate. Coming in from stays right
. I think I was better to one
thousand nine hundred nineteen eighty nine for that Russian street version. This is street version. Roy I was the conservative. You know upper class. Virgin. Now we've been played...
virgin Liberty City. Liberty City version. See that's the difference. That's a big. That's the big deal
there. You know this is
people in the streets can relate to this. So you
got it. Keep open when you listen. It was the
first song parody of you then
others which of which
we did do i did we
did. Then the US a bone and
you is a note
from nobody else. He didn't do something unique about rap John resit is the reason.
Well. Like I say you know. At the time when we were on trial and you know home world news in the First Amendment case everybody start coming out and rule words I mean you know. They come from those came out and. Lucas Films came out. You know we're getting soon from every...
which way. As possible so you know. We when we deal with all the
cases and. When we do win a case. The First Amendment case. This was like the lasting never was left on the table and everybody else backed up. You know there's a you know like we had a great...
lawyer. We did I don't want to fight him or. If you let this case with. What effect is I can have both on you it's pretty light crew but also the other is that your involvement. As far as the company....
I don't think I have any effect on you know. The company is forced to live through I don't think it have any effect on us because we you know it is that...
I have to do parodies I
mean you know like a parody that was not like the biggest records none of you know where I've been USA was only one I was released as a single. You...
.
These are like records that we do. Keep the groove going on in our home I mean you know it would hurt us I mean because when records like me so and and build a D.. He was...
known for parties it's just something
we do to seal up the albums. Cases come up to be heard from others
who do parodies I yeah I mean
. Bruce
. If you noted briefed filed I mean. Living Color. You know. Saturday Night Live all these different
. I was a file briefs on our behalf. I mean it would be like. You know it will be staying up happen because
if we were to lose this case. I mean nobody can imitate the president anymore. You know we had our active as you can do what he does. Anymore. I
mean. Saturday Night Live will
be off the air. No
morning. Here you would be you have to you would be
doing all the junk shows that go on will be eliminated because
everybody just begin to doubt it will work. When it's restarted Did you ever
dreamed it would go before the Supreme Court has it. Just me to have
doubts basically. Which is you know. May refuse to have just like you said I mean. We never thought we were even be involved in a first mimic case and valving another First Amendment case I...
mean you know is is
it is OK because it brings awareness to a lot of people as an industry. Especially the black rap groups. You know. And the kids can be aware that
we still have a lot of challenges that we have to. We have to challenge people on our release in what we do in our community and what
others do in their community I
mean we have to keep that. There's always
on trial. You know I mean our music is always on
trout you know when it. Is it
just brings awareness the key is that a this is out there. You know is actually out. We have to fight. What year it is we still have
to fight it. You just can't sleep. Tell me what happened in defending yourself in the bank Spencer.
Cause a lot of money I mean. Made a lot of lawyers wealthy has cost a lot of money. You know a lot of nonsense. You know we could have saved money invested in some other things. You know has cost us a lot of my majority case we won. So you know what we did is...
got a good old taxpayers' money.
Different
communities a actually paying for this when case you know taxes go to
paying for my lawyers. So it don't benefit nobody. Do you think we have the will the decision. Affect
either way. What you do in the future. Think it will goes to
laugh cool will be two Live Crew there. It will you want to fact that they have you know if
we lose. We won't do it more we won't do any more parodies that we when we continue doing parodies. You know I'm real proud of their
When you know. It's the First Amendment I mean you just can't
mean it's the first movie just to run over to me. Parodies are protected about First Amendment to playing in several regards to who may do it. You know where black company like individual. He's back in the visual black rat group. I mean we had our last visit. As a white guy. Living Color all these...
programs that you know I mean you know
. We should be able to do that just as well is able to do it
. Have you been parity. I think we have said you know I love living color so you know I love living color. What else. Wells covers. You know Chris Rock and he does me. Make jokes amino I...
Have they given you know I'm I'll
be impressed. You know what do you
do. Do us.
Period. I mean guy did a show in India.
I mean you know we all found
this before him going are you going to be there in Washington
. When the case is when the
argument you made. Yeah. Are you doing to prepare yourself to be talking the
press very well you know we just go the float as you know hopefully get up and sing the record before the Supreme Court now that we will have new to bring the girls and their be there and...
then we can see what is a woman. Claire. Claire. They work it out Claire
they really don't
put that all of the closely how do you work that you're turning. And what they're going to do you know what he's going to say do you actually
think I can tell you are there. You know we we got our case and we're going to send it. I mean you know it's going to be it's going to basically present. You know just as if you know is is a First Amendment case. You know we had our share first mover cases and as basic as going to...
far as I know.
Don't you know. Don't believe what I say have especially if your abs is because we have like we have clever lawyers who struggles like the paramecium...
I'll tell what direction he might go. Seventy thanks for other artists who might find
themselves in similar situations. Well. My advice is to. You know if you feel like you write. You know just to just do what you feel is right. You know if you feel like you do is I'm wrong you know do it. You know but right is right wrong is wrong we will pave the way for everybody else like we are wish to go into court fight everybody and everybody...
asks start. More perilous. It's a gamble president require goods and
number two I crew thanks very much. No problem. When Campbell versus a cough Rose music incorporated is heard before the Supreme Court this coming week it will mark the first time the justices have dealt with a case involving rap music. However it won't be the first time that the group two Live Crew has been in a courtroom. The group successfully defended its nine hundred eighty nine album. Nasty as they want to be against a claim that it was obscene last year an Atlanta federal appeals court reversed and one nine hundred ninety lower court decision. And ruled that the music was not obscene. But again should involving Luther Campbell on a cover his music incorporated has been under way since one thousand nine hundred at that time make of Rose filed suit against Campbell in Nashville federal court for violating the copyright of the song. Oprah the woman. The case made its way to the Supreme Court of the United States because various federal appeals courts have developed different tests in determining whether parity is a fair use of copyrighted works by reviewing this case the Supreme Court will work to clarify those lower court decisions. The question of parity is a complicated issue. Many groups have become successful by mimicking popular songs originally written by other singers or groups. For example. Weird Al Yankovic wrote a parody of the Michael Jackson song Beat It and called it. Eat it or look at the parity issues involved in Campbell vs a cough Rose music incorporated continues now with a conversation with Bill Strauss director of the Washington D.C. based political musical satirist group....
The Capitol Steps. The Strauss director of the Capitol steps What's the significance of the Supreme Court copyright case involving the song. Pretty woman. The Supreme Court cases one the we intervened in along with Mark Russell after it looked like the Sixth Circuit in Tennessee was establishing some new rules would have been very hard to do song parodies under. It's impossible to do political song parodies and go to publishers and ask for their permissions. People who try it. Are never successful we tried it once for a T.V. show. We were given one permission out of seven songs we asked for and the Supreme Court I think is composed of people who like a belly laugh like all the rest of us were quite optimistic this case will establish once and for all the right of song parents to do their craft. We've asked you here to do this segment because of your affiliation with the Capitol steps and for our viewers who may or may not be familiar with the steps we have a clip of what they do. Here in Washington that runs about men and a half well let's say that...
the back to a look at this case
. I'm Marilyn cool am
and many people wonder why
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is asked in phone.
The Capitol Steps. Bill Straus What's been the role of parity in music so over the years. I was going to tell you lose it if the Capitol steps can survive the departure of Dan Quayle from Washington we certainly are going to be able to survive. I've whatever the Supreme Court dishes out here. The song parodies have been an important part of American politics dating back to the revolution. The song Yankee Doodle was itself a parody of a pop tune. That was coursing through England at that time a tune called Lucy Locket. And our own Star-Spangled Banner national anthem was itself a parody of an old English drinking song called to Anacreon in heaven that was making the rounds of the colonies actually back in the seventeenth seventies and during the eighty's and ninety's it was used to make political jokes at the expense of. John Adams and Thomas Jefferson. And it was only about twenty five years later that it catched itself. To Francis Scott Key is Poems. So throughout our history and presidential elections during the wars during periods of great movements like women's suffrage. Song parodies have been right at the heart that you talked earlier about those some songs you asked for special permission to use I believe in a television production but what is it under the law. That does allow you to do an act like that that does include parody. There is a section in the copyright law that is called the fair use exception. And it is for parity that has a social and political commentary that some bet it. There in and if you do a parody that is fair use you don't have to ask for permission. And that's what we say the two Live Crew song parody of Pretty Woman actually was and certainly what we've been doing over the years. The other side makes an argument that. Groups or other singers are making money off of their creation. What's the argument response to that. Well Lou I think a lot of newspaper men and people like yourself make a living off the First Amendment and I don't think that that means that the right to expression is any less. The bottom line is that the four part tests that the Congress has for fair use parody includes one very important provision and that is it asks whether there's any economic impact upon the original song. I cannot imagine that any person who wants to hear political jokes about Dan Quayle and wants to see or hear the song. I want to man with a slow mind is thinking in the back of his head well gee if I don't see that where I don't hear that song I want to go out and buy a song of the original by the original I want to man was a slow hand. That just doesn't happen that way our competition is not the original song our competition our other Paris. Who themselves are using. Parodies the same way we are people like Mark Russell. Speaking MARK WILLACY mentioned earlier about going out on the make us briefly. Go back and talk us through the process of how you. The process of being involved in this case with with filing a brief. When we saw that the case had been lost by two Live Crew at the circuit court level. We decided that the Supreme Court had to know that it wasn't just the two Live Crew. Album and song that was its say. But if this case were allowed to stand it could be real problems for people like ourselves. So we filed a brief along with Mark Russell only got some other people like Dr Demento. You know we joined on you say filed a brief Did you hire a lawyer. You know how to how did you file like any of the supreme any of the members of the Capitol steps or former lawyers including myself one of our favorite song parodies is so lawyer. Who descended from worms and evolved into firms that still lawyers so we're just producing a little more material for ourselves and we're hoping that the Supreme Court members said Don't pay too much attention to...
the parodies we've done about them over the years
songs like if you know like I said a. Then you wait we submitted a request along with two Live Crew of course that this case be heard for for appeal on a writ of Sir share and away. We also submitted. We think it may have been the first time ever a musical brief. Which was a cassette we recorded called from Yankee Doodle to pander bear to describe the importance of song parodies throughout American history. We understand that because said was making the rounds of the back halls of the Supreme Court. That we think is quite important that this tradition be continued That's why we think this case is going to go to have crews way. Because if it doesn't then the same kinds of songs that are columnists are patriotic. Framers back two hundred twenty years ago. The songs they sang the songs of the War Civil soldiers sang the songs that our own troops are saying in World War two. These these would be impossible. Did you think. Some years ago as you're approaching this. This...
line of work that you've been involved in a Supreme Court case
. What we felt from the beginning that what we were doing was right when we record our first album. We approached the Music Publishers Association offered to pay royalties we're told now if you change one word on one song you have to negotiate individual permission. On every song. And that's impossible. We write songs about the day's news that night and if we had to constantly negotiate over rhyme schemes and whether a certain political point was what they wanted to be associated with their songs we'd never get anywhere. Heck we don't ask for Dan Quayle's permission we don't ask for. Bill Clinton's permission why should we ask for permission of people who often frankly are foreign owners. Right now to give one example the song book for The Wizard of Oz is owned by an English company. And if we wanted to do a parody of. If I only had a brain we'd have to ask for permission from an English company. I'm not sure when the Patriots were singing I could do all they had in mind going back to the king and asking if they had permission to do that. Other than how this might affect the Capitol steps another parrot is why should you have someone's watching this is not in the music business is at home. These things on T.V. Why should they care about this case. Well you heard the people laughing at the song that you just played for them. And you heard them laughing especially hard at the parity line. Song parodies are the part of of music that. That help people remember a point that you've made they go home singing. And this is something that people have noticed in political movements Joe Hill the great wobbly...
songwriter back in the early part of this
century. Discovered that if you use song parodies rather than writing his own original camp meeting tunes that people would go home on the streets. Singing and chanting his lines. The same thing is true and hammer and sure there. Would be political satire that song parodies of course we can write jokes in the Capitol steps will still be very much in business whatever happens with this case but one very important element of political humor will be gone. And beyond that I should say it's a very important tool for community groups or for college groups for all kinds of people who want to get into the business of political humor. We get calls constantly from local groups asking for reassurance and what they're doing really is fair use. And if the Supreme Court creates a problem there I think you're going to see a lot fewer new political satire troops entering the scene in this country. Now to be ashame cases argued on the ninth will you have the opportunity to see the arguments for going to go. I expect to I'm really confident we're going to win. Bill Strauss's director of the Capitol...
steps. Thanks very much. Thank you. The Capitol Steps is a political musical satirist group whose members work or have worked on Hill Capitol. The group formed in one thousand nine hundred one and performs around the country. The question of fair use is also an issue in the case of Campbell versus a cough Rose music incorporated. Next on America and the courts. Shira Perlmutter assistant professor of law at University Catholic Law School of America discusses the fair use provision in copyright law and other issues relevant to the parity of. Oprah the woman. Recorded...
by two Live Crew. Sure. Of pearl mater assistant professor of law at Catholic University Law School here in Washington D.C.
. Why is there are a federal copyright law. Well copyright law in this country actually goes all the way back to the U.S. Constitution. Congress has authorized to grant copyrights to authors to protect their works. And the idea behind it is that that will be an incentive. If the authors are able to make money from writing and creating works of authorship. To get them to create more. And that will in turn be of benefit to the general public will have more work...
out there. To read and to see. Why was
that. Of interest to the founding fathers. Well that's a good question and one answer is that it was seen as being in further runs of the general goals of the First Amendment a free expression the Supreme Court has called copyright law the engine of free expression. It gives an incentive to create these works and then they in turn. Be a medium...
for getting information ideas out to the public has copyright law and the cases
that go with the bend contentious over the years. Very contentious. There's been many litigations brought relatively speaking by authors and remember copyright protects not just books which is what people usually think of when you talk about authors. But also other works of other ships very broadly defined. Such as music. Songs like the song at...
issue in the two Live Crew case.
Works of art. Sculptures paintings. Photographs and movies. In the twentieth century. And as well. The most recent form of creative authorship computer...
And that has turned out to be of great importance economically in this country. Before we talk about the specifics of this program in this case. Is there any way to to generalize or to put into major categories what these cases have been about over the years is there one particular area that seems to draw a lot of lawsuits in copyright or or. I guess the question maybe is is why. The reason people...
bring these lawsuits and copyright cases. What's going on out there. They bring the lawsuits. Almost invariably to protect their economic market. There's some other cases where an author may be trying to protect his moral interest his privacy rights. But typically in this country copyrights have provided. Economic incentives if you own the exclusive right to make copies and sell copies of your work. And to make adaptations and sell out at stations which the copyright law does give you. Then you make money. You can license those rights to others for money or you can sell the copies yourself and make money. And if other people. Go ahead and make those copies or distribute them. Make those adaptations. And distribute them without your consent. They are cutting into your market. So economics. By and large drives most of these lawsuits and over the tooth injuries of copy. Law in this country. The battlegrounds have shifted to some extent following new technologies and new types of works with outside suggested computer software representing a lot of the cases today. But whatever type of work it is typically that's the issue can the copyright owner...
protect his or her market and be able to exploit the work to its maximum economic potential. Now in this protection no there is a there is a way that...
SNOW PATROL portions called fair use what is what is fair use the fair use doctrine is the most important. Limit on the copyright owner's rights. It is. You can see it as the safety valve. Of copyright law. It is what gives flexibility to the general rules and principles of the law. You can look at it like this there are certain uses that someone might make of a copyrighted work without the copyright owner's consent which are fair and reasonable. And the judgment is made through the fair use doctrine that this is the type of use. Which should be allowed even without the consent of the copyright owner. And the best way to understand it is to think of the classic fair use case which is the book review. In a book review. Someone may quote. Even extensively from the book. In order to illustrate the points they're making about the book. To comment or to criticize something the author has said or done. And that is considered fair use other cases are a little bit less obvious. But the overall overriding question is whether the use is fair and reasonable. And one that should be allowed. Now that's a vague standard. And one that's difficult to apply. And the courts will look at all of the facts...
and circumstances of a particular
case. That type of vagueness is necessary to preserve flexibility. But it makes
it frustrating sometimes to predict the outcome of a particular case. Speaking of particular cases. Nov ninth has the arguments for in court the TO...
Pretty Woman case what are the particulars of this case. Yes. This involves the song by Roy Orbison and days of. Oh Pretty Woman The original song and a parody our at least acclaimed parody...
that's one of the issues in the case
. By the rap group to Live Crew The question is Is it a fair use or not. Now it's my impression that the popular understanding of parity. Is something that is permitted that people are free to do. If it's funny if it's a parody it's all right. But under the law. Things are not that simple. And because a parody involves the imitation an adaptation of someone else's work. It will be a copyright infringement. Unless that qualifies as a fair use. So the courts have gone through the ordinary fair use analysis in deciding whether a...
parody qualifies. And that doctrine is what the case will turn on before the Supreme Court. Now over the years of a number of songs are parodied and this. Look we also talk to a fellow from the Capitol steps they make their living doing parodies. What is there about this case. That's brought...
it to the Supreme Court. At this time. That's a good question and one that copyright and music people around the. country Have been speculating about with great interest as you can imagine. Parody is parody litigation has been going on throughout. Certainly the second half of the twentieth century with increasing frequency and all the parody is an artform that's been around since at least ancient Greece. It's become very much part of popular culture. In recent years when you think of Saturday Night Live which relies heavily on parodies magazines like the Harvard Lampoon which put out a lot of parodies all the way to commercials these days like the energizer bunny commercials. They've become more and more frequent and litigation has multiplied. The Supreme Court thirty five years ago. Agreed to hear a parody case. Which involved a parody by Jack Benny the comedian. Of gaslight which he called auto light. And the court took the case ended up splitting four to four which meant they didn't issue an opinion at all. And since then the lower courts have been struggling with the myriad of cases that have come along. And this is the Supreme Court's next chance thirty five years later to address it. I think it's an important issue for...
creators in this country. Of all
types whether creators of original
works or creators of parities that draw on those original works
. Been thirty five years since they've had a similar case. Yes. And of course that when they didn't even decide. So this is really a historic moment it will be the first Supreme Court case...
. Telling us how to treat parody under copyright law. You mentioned briefly how how the lower courts are handling this give us some background on this...
and how it came through the lower courts. In the trial court of course the music publisher a cough Rose sued and. Two Live Crew a sort of the defense of fair use and one the district court said this is a fair use and were dismissing the case. That was appealed to the Sixth Circuit Court of Appeals which reversed. Went the other way and held for the copyright owner. The Sixth Circuit to. This is not a fair use and relied primarily on the fact that the US was commercial. This is the case where to live crew was selling a huge number of records. Using the original song in their...
parody version. And the Sixth Circuit felt that this was a situation where the you should not be allowed because it was commercial. In in reading articles about this case. There are some authors reporters suggest a generational difference between judges who said. And the performers. Of this music as an observer...
of this case is that a factor. It may well be a factor. You can never be completely sure. But there is a real flavor. To me in the Sixth Circuit opinion of the court just not getting the joke. If there's a joke there the court does not get it. And it may be in part generational. And maybe in part cultural. You have on the one hand. An anti-establishment rap group. And on the other hand. Venerable and senior judges in the federal judiciary...
. And it is somewhat understandable
that they would have a different perspective on the world. To say that it may have influenced the court is one thing. Should it influence the court. I don't think so and I certainly hope that the...
Supreme Court will not be too.
Affected by that generational or cultural gap. And I'm hopeful that the court will not be in fact. To affected the Supreme Court has showed itself. In recent years certainly to be sensitive to First Amendment concerns. And I believe they will be aware...
of the need to separate out their own tastes and values. From what the legal issues are in the case. You talked earlier about when this case first came out then and the music publisher and the artist. What does that relationship about how how something can somebody pay...
to use one of these songs. And how does that work initially. You're talking about the music publisher eight froze who
brought the case yeah and the rose to the songwriters Yeah. As a songwriter could go to the music company and say we'd like to use a song I
mean can they just pay and then use it. Well the original songwriter of Pretty Woman. Sold the copyright to the music publisher and that's fairly typical they do that in exchange for getting the work published of course. Songwriter typically doesn't have the resources to do that himself or herself. They will get the...
work published by the publisher and in return
. Get royalties. When copies are sold. That's why a cuss froze the music publisher is now the plaintiffs in this case. The second question is what about the songwriter who wants to make a parody of the original song. There is a portion of the copyright law that allows recording artists to make their own recordings of other people's songs without getting permission. Even though Ordinarily you have to get permission to make copies of someone else's work....
There's an exception for
making records of musical works. Under that
exception. That's what allows recording artist to do their own covers of songs something that
everyone is familiar with and people
record their own interpretations
of songs that become classics. The law allows that to be done without the copyright owner's consent. If a fee
is paid. And it's a set fee. Set
out in the statute and the copyright law. It doesn't apply in this case. Because it doesn't apply. If the second
recording artist is changing. The
fundamental nature or character of the work. And I think all concede in this case that this. Satire this parody. Does change the fundamental nature...
just a different interpretation a different performance of the song.
They've changed the words. They've changed the music. So that
freedom to make the copy without permission. Was not available to Live Crew. That's why we're now involved in a lawsuit. In a general way. What arguments will both sides make. When they go before the Supreme...
Court. The plaintiff's argument the copyright owner is based very much on the importance of the exclusive rights. That a copyright gives you. They will argue and have argued so far in the case that to live crews used. Is first of all it's not necessarily a parody at all that it's more of an exploitation of the original work. That it comes very close to the original takes a lot of it and not really to make fun of the work itself. The second and related point is that. To live crews use is highly commercial. And again this is what the Sixth Circuit relied on heavily in making its determination that this was not a fair use. They are selling. Many multiple copies of the record. This parody version of Oh Pretty Woman is on a record. Consisting of a lot of other songs and two Live Crew. Stands to make a large profit out of the use. There's also a concern on the part of the copyright owner that this kind of use. Will hurt the reputation of the song that people will be less willing to buy it because they will associate it with negative connotations. When you hear it if you've heard the two Live Crew version. You may no longer just think of a pretty woman standing on a street. But you may think of an extremely unattractive woman and be tempted to laugh. And that that might also hurt the market for the original. And I think one of their final points. Is that if two Live Crew is allowed to do this. It affects their market for the work. Because it makes it difficult for them to license other rap versions of the songs or other parodies of the song. If someone else wants to make such a use they'll be less likely to do it now that the two Live Crew version is on the market. What will the other side be arguing then fee arguments on two Live Crew side in favor of finding fair use. First of all would turn on the argument that yes this is a parody. It is making fun of a bland and the now type of mainstream popular music and perhaps even making fun of a particularly sentimental. Idea of romance and women. They will also argue that yes of course. It's commercial it's sold for money. But virtually all parody is sold for money. That's books. Records. Movies are all sold for money. And if that alone is enough to make it not a fair use no parity will be fair use. They will point out that parody is in fact a valuable. Form of creativity that parody is seen as being a type of social and political commentary. In many cases. And also literary criticism. And it has a real value as entertainment. And for its humor. And even Court. Even the serious judges on our federal courts have pointed out that humor in itself. Isn't it. Porton value in today's society. So those are all arguments why some leeway should be given as to the amount that taken it's true that there is a lot of repetition of the distinctive baseline of the original song. What. Two Live Crew will argue is that that is critical to the humor into the parody that they also do a lot of changing around the melody in the words. They've certainly added a lot of their own material. And the repetition is part of the point they're making about the song about it being by now. And that adds to the humor in a musical sense as well as the words do. And finally in terms of the impact on the market. It is certainly a fact that copyright owners are not thrilled about parodies being out there. They tend not to like their work to be made fun of and if you think about it that's really a natural human reaction. So the concern is if we say that any parody which they could in theory license. Will not be considered a fair use and will not be allowed. The result may be that copyright owners are able to censor parody. Anything that criticizes or poke fun at their works. And that's a concern and possibly. Yes this might have a negative impact on the image of the original song. But again that could be just the price that an author pays for becoming very successful. That people want to poke fun at them. Just as people will want to criticize them. So I would say those are the primary arguments on the side of the parity in this case and in most parody cases. What may end up being critical in this case is the amount that was taken because it is substantially more than the amount taken and most of the prior cases involving parodies of songs which were found to be fair use. So we'll see what the court thinks about that. I might just adds. Having said that Fair Use turns on an assessment that a particular use is reasonable and should be allowed even without the copyright owner's consent. Even though that's a very flexible and Alice's and requires looking at a lot of factors. There is some guidance for the court that's not completely open ended. And in the Copyright Act itself. In the language of the statute. There are four factors listed. That the courts are required to look at and analyze in deciding whether any particular use is fair. And I thought it might be worth mentioning them. So your viewers would have a sense of what the court will be looking at in this case. The first factor that courts are required to consider is the purpose and character of the defendant's youth. And that would include questions of whether it's commercial. Whether it's a parody. Whether it's creative or just slavish copying. The second factor is the nature of the copyrighted work on that fact our courts have looked at how creative. The work is as opposed to factual. And they've looked at whether it's published or unpublished questions like that. The third factor which I've alluded to already is the amount that was copied. How much of the original work. Was taken because you can take a small amount. It may be less fair and less reasonable. If you take large portions. And the final factor is the effect of the defendants use. On the value of the original work. Or the market for the original work. And that's where a lot of the arguments in this case will center. Because on the one hand you can argue that a parody. And in particular the two Live Crew parody is not going to be sold in the same market will not appeal to the same audience as the original. I think it's fair to say that most people who are interested in buying the song Oh Pretty Woman in the original version. Are not going to be the purchasers of the two Live Crew records. On the other hand there's the question of the copyright owners ability to make money by licensing the rappers and or licensing of parity. So there may be a great deal of focus on what exactly the impact on the market will be. Of having the two Live Crew version of the...
song. Out there. You mentioned just now about
the rap version. Is it significant that the these are rap
artists on a rap song. The legalysis should not be different for rap music the question is always. Whether it's a fair use. Under copyright law. It is true that rap music tends to make a lot of use of prior works. And the question will always be. How much was used. And what's the purpose of the use. Is it a type of commentary on the original. Or is it just because the rap musicians like the sound of the original. But those are the questions to ask...
. In every fair use case.
As a as a copyright expert you'll be watching this
closely. What impact is this going to have if the decision goes one way or
the other impact on the music business. It's a tough question to answer without seeing the opinion. There are many issues in this case. Which the Supreme Court may or may not address and. They may treat the issues one way or another. What exactly they say on what issues will really be what's determinative. I think more than the exact outcome one way or the other. And part of that is because fair use is a heavily. Fact. Intensive question. Since you have to look at all the circumstances and facts. And the law itself requires the court to balance at least four different factors. The weight of the balancing will be different in every case. So it's difficult to forsee an overall outcome for the music business generally. I will say it's possible that the case will have ramifications well beyond the music business. Depending what the Supreme Court says it could affect types of uses as far from this song. As reverse engineering of computer software which also involves fair use analysis. And of course it's true that if the court finds this is not a fair use. It will mean that Paris have to be more careful. And probably will have to take less will get less free ranging risk taking parodies out there on the other hand if they find it is a parody. It's true that that may cut. Somewhat into the copyright owners. Market the economic...
value of the work. Subsists is your area
where you have the opportunity to see the arguments on and I certainly plan to be there. As you're there. What key will you be listening for from the two lawyers....
And from
the questions from the bench to
. My biggest concern the case. And I suspect the Supreme Court's biggest concern is the question of how the commercial nature of the youth. Relates to the creative value of parity it's a question about the relationship between art and money at bottom in this case. And that's the essential difference between the trial court's decision in this case. And the Sixth Circuit Court of Appeals. Sixth or kit. Put the fact that the work was commercial and being sold for money. Above. The other considerations in the case. And...
I'm very interested to see what the Supreme
Court has to say about that.
Sure Perlmutter is an assistant professor of law specializing in copyright and patent law. At the Catholic
University School of Law here in Washington
D.C.. Thanks very much thank you America and the courts continues its Look at the issue of parity and Oprah the woman. As we talk with David Harleston the president of death Jam Recordings. As a lawyer who is now the top executive of the largest black on record company. David Harleston heads a company that Records artists who either have had their songs parodied or have done territories of other recording artists. Among the approximately thirty artists on the Def Jam recording label are L.L. Cool J.. Public Enemy. And for real...
. David Harlesden is
president of Def Jam Recordings. As a music company executive who's
artists have done parody and been parodied
. What do you think of this Supreme Court case
. It's at the very least
interesting. At most I think it demonstrates a problem with the parity exception as the Court has interpreted it historically. It seems to me that around. It ultimately comes down to whether or not the judge or...
judges concerned get the joke
. I think personally and then. In this case. The defending judge in the six circuit got it
. Understood it and wrote
accordingly. The majority appears not to get it. And obviously whether or not the
justices on our Supreme Court
. Understand the humor. I think will determine whether
in fact. Luke is able to
prevail. Talk a little bit more about the idea of
getting the joke about the significance of this case involves young artists. Rap artists. Well.
The notion that. That one ought to be able to use. Copyrighted work for comment. Criticism which
has been in the
case law interpreted to mean parity. I think is the notion that. That's tied to whether the subsequent derivative
work. Is is is
is funny. Does it make the comment or the criticism that it's all terror States intends that it. That it make.
Here's a circuit six circuits that. It
does not on a P.R. before
the Supreme Court now. Luke
argues that. It is very clearly
a joke. On the right Orbison song. It is he has argued if
I'm not mistaken.
And effort to expose the end of the six circuit dissent. Language. Comes To me it's the white bread character of the of the original song. If you...
lyrics of lubes version.
There's a very profound. Irony in his use of language against
the music of Pretty Woman
. If you get the
joke I think it's very
clear that this is parity and
falls within what I believe the well established. Exception to the copyright law or or or or
dimension of the fair use. Defense
. If you don't get it. Then I suspect
you're not going to find the
parity and you're then going to find infringement
. Various articles about this case in
interviewing both sides.
People on either side talk about the economics of this issue. What's at stake
financially. In a case like this. And I'm glad you asked that point because one of the fourth and what the court is historically called the most important
tenant of the series defense is the extent to which
the author of the original piece will suffer economic harm from the
from the the secondary years
. I'm very hard pressed
to to think that there's
anything significantly at stake here from an economic perspective. It is inconceivable to me that in this case for
example. Luke's pretty woman would do any sort of economic damage to Roy Orbison's Pretty Woman. There clearly directed at different markets and it's....
to imagine how
any successful
activity on loose part was pretty woman. Woods would somehow diminish. Either the
value or the interest in the world or present song in my experience as a record company executive. We obviously have artists who in the hip
hop context. Engage in a practice known as sampling sampling in involves the importation of portions of pre-existing musical work presumably recognizable....
. Into subsequent and secondary songs.
When our artists have. Sampled. Our own material or material that
we own but that was created by other artists
of ours. Typically the more
successful. The song
that samples the original work. The more likely
where we're going to see additional
or new sales of that original work
. So there's a very clear argument that
activity like this by
and creative individuals like Luke
could indeed spawn. Interest in the original work. The notion that it's going to somehow diminish interest or
value I think is the show's. Let me conclude our segment here by asking you look ahead a little bit for us
and tell us what you think will happen if this is
decided either way what impact is this going to have on your business
. I don't think it's going to have tremendous impact on our business as the business of recorded music. We particularly those of us in the in the hip hop. John are of the industry have become increasingly used to efforts to sort of....
Restrict what artists say and how they say it
and were frankly. Meeting that challenge regularly. If this ends up as a decision in favor of a vague of Rose. Will acknowledge it is such and continue doing what it is that we do. If it in fact is a decision that. That...
results in
a win for Luke. I think we will once again be faced with just case law. The point of which is. Humor is in the eye of the ball there. And if the judge...
parity defense will stand. David Harlesden as president of Def Jam
Recordings thank you very much for taking
the time. My pleasure. The case of Campbell versus a car for ozone Incorporated will be the first case dealing with urban culture expressed in rap music. To come before the Supreme Court. This will also be the high court's first parity case since one nine hundred fifty six. At that time the Columbia Broadcasting System and lows incorporated went to court over a parody by comedian Jack Benny of the movie gaslight his version was titled auto life. Bill D's is the co-author of the song Oh Pretty Woman. He and Royer Brisson wrote the song back in one thousand nine hundred sixty four and Orbison recorded what became a top ten selling record. America and the courts continues our look at the issue of parity as presented in the case of Campbell versus a cover over music now as we talk with co-author Bill...
D's. BILL DE is co-writer of the song. Oh Pretty Woman co-wrote it with Roy Orbison that your song is going to be the subject of a Supreme Court argument on November ninth. Bill what's the significance of this case was significant it's my greatest life work with Roy Orbison. And I think sixty four we wrote it together and take us back a little bit and tell us how this came about how you came to know I know. Roy Orbison. And how you wrote this song. Well Roy and I were writing one afternoon and Claude it came. Tripping down the stairs. Caught it was the first top ten record their oil just by the Everly Brothers and he wrote that about her and she popped up to him and hear that I know I'm going to the store and. Give me the money any and like that and he said What do you need money for and I had a little flirtation go on and she tripped off across the receivers kind of key. Knew it. You know she was actually she was very pretty woman. And as I was standing with my guitar and...
he turned around to me and
I said almost didn't say it I'm so glad I said it. I said this and I'm
pretty Roman. Don't need no money
. Them to me now you know and he set down at the table with his guitar he said there's nothing down about pretty well my pretty little walking down the street and ADO started just. We had it written by the time to get back in the store which way except with the exception of the ending we had a different ending. But basically how song was written. This will wonderfully together. Now when you talk about a song like that falling into place I mean how does that work. Then you go back and forth as I want to be do the lyrics the other the music. What's process. Well you know like I said that and he said that back it may have used what I didn't. And then I had a little Spanish smell of the and added a bit of that design. That was kind of. I had a little worse trying to tar. And he said I did my best writing on that guitar and might be at that. It's basically Xen he was the hot. The he was the artist and out. I'm thankful that he took control. Like if I had them idea he'd say. No no but then it would spur him on the do something really good. I thought he he had a stroke of genius. When he was on top of it he was the best I ever saw writing and. The first song we wrote together was called it's over. And I had a song called It's over at last and playing it and...
. And it just ended with it so
it's out. It's so for and. Roy just. Wow I guess Saturday and and that sound dispell like. I would have to say was mostly him. But then I discovered writing. Discovered some of my writing Mike Lee My wife did but were golden days before they whisper secrets to the wind see you know. I actually had some of that lyric and was given him the credit because he took the mastery of it and controlled it so much but how do you not like that they don't want they now one of the parties involved in this case is the a couple rows. Music Company How did they become involved in a song and what's your what's your relationship with the music company. Well the they're the greatest public you're in the world I think they've been really good from a you know they pay down to this stamp or something you know the pay if you get these in through a yo yo yo dollar forty five. That dropped out of my here there and then there's a matter of their reputation there's deserved a really a good. You know. And I honest bothers and get mean you don't find in this day of. You know publishers that look out for your interest as well as they did in they they've always been good to see. After the wrote the writer's answers. Explain a little bit more about that relationship in the companies in the writer's interest in and the royalties that you get. Well you know there were there were there would be times when I'd have an opportunity to write with somebody and they'd say that would not be good for you we would have to split the pub sing. Bah bah bah and they discuss it with me and. Sometimes I'd write it in you but you know. You can't always tell somebody you know you know they say you can...
tell someone in love but they just won't listen. When did you
first. Either hear about or find out that a parody of your song Oh Pretty Woman had been done by the group to Live Crew. Time has a right of get away with me. You know why for me this things like a year and a half or two years ago but I guess it's been about the time the movie came out. Just shortly after that I heard that they had done it. And of course everybody knew about Ne X.T. that if we want to be the album what happened there. And I was thankful does is go beyond plain and I want to believe...
is going to be as of been this way I
want to do you know what do you think the first time you heard it. Well the first time I heard it honestly I thought you know the academic as I'm or drunk or the party. This is. This is when the party gets really silly at three o'clock in the morning and you're given OP and everybody's falling down laugh and I can see the humor and. They definitely use the song the melody and lyric and. I could see. You know. This was just a party or was a shot on T.V. That's a big right but if you're going to bombard the airwaves for. You know what it takes to have a million selling record. If this was going to be a hit or something like that. I don't you know I think the B.N. owned trying to make the decision at that time I thought it was a very good season. When they applied for Alaskans on it and they got turned down. At least from the standpoint of the public and endeavored to protect me as a writer I thought that was a wise thing to do. They had recently before that turned out an advertisement that was going to make me. Hundred fifty. Hundred seventy five I forget that. Thousand dollar. And it hurt me really bad I mean that. But at that time I turn. I mean when they when I turned down ideas. Let go of it because I bigoted. They're the publisher they know they've been in the business this many years. They know that something like this silly thing. Could cost them a million dollars over here. It could cost them a great amount of money for somebody just a mite fun are OUR be flip but about a woman and I'm not flipping about of all my myself I would write I wrote it as carefully as we could write it and respect Billy's week it would be pardon me is one of the four splendid. I couldn't help but see your lovely. You know it's very tender thing. I can't see how anybody could call that a thing. And every sailor ever tried to pick up a girl he wouldn't be and delete. You know. Scuse me because we sit on this part. You know. Let me buy you a Coke. I'd just like to get to know you can I be somebody. Are you know only like I am. I'm lonely. And I didn't mean. I keep drop an easier thing. You mentioned earlier about some folks applying for a license. What does that mean and what's that do. Well ma'am mine ASCAP. There's three or four a lot of the AIDS and. You have to go through them to get the last but you have to go through the publisher after the publisher has to say the. Look at the use of debit and say well if you are Latins on this. If you get together things off. And the mistreatment takes is bad and it's not a. It's a bore repetition. Or representations as well and. You should be able to say no. You know it's going to hurt you from their own it's going to undermine what you have spent all these years building up. What he would want to do that I can't stop loving you to Hank Williams...
You know I wrote a song called I just
stop loving you. What do you think of of musical parodies. In general and what their places in the music business. I think they're great I mean I think. I think freedom of speech is in freedom of music I mean the freedom to express yourself. You know. But you should. The rating system own movies you should know what you're walking into the. You shouldn't be able to just turn on the radio and hear garbage. Somebody ought to be looking out for what you're hearing because some things you dislike bad. You know some things give you a disrespectful playing this woman is a somebody who murder this woman somebody's daughter is you know. Could be my wife. You know. And I definitely don't want my will have talked about like the guy for them. And now I'm glad to see that get a baby ain't mine. You know. Well that sorry man X. not the right thing to say publicly over the radio. With a publisher from the point of taste. I got better days and that I'm just the average Joe di from from the copyright...
aspect of this case that's coming before the Supreme
Court. What does this case mean to the to the songwriting. Community others like yourself. Well I I think there's a. You know there's a code of ethics a code of honor. We're losing that. And a lot of places you know. Just on everybody's a. There's the doctors and everybody else. There's a lot of things I wouldn't want to sit here and do a solo because the look where you are my philosophy or whatever but I'm a believer in God I believe in Jesus Christ. I believe in everything. I would like to be a follower. To the point of being of stand on Mount Do you know why I say what I say you know. And I don't have to live in the ghetto to to appreciate those people hurting and being in the shape they're in here. But that makes them have a different set of values than I do they think you've got to steal from somebody. If a guy. Yes good person for the same weight and they say no you're going to grab it and rip it off and run. Well just because they do that doesn't mean I have to take that. And we will get laws for and that's what this is. All about I think you don't rip somebody off that has a. I mean I said bike money. Roy Orbison said make money off of this...
. And if it makes it a come back to the
publisher and said Look we'll do this. How about this. They should have treated them over the respect and that it does it take in the keys of the car...
and then to me by the car
No two and then the kids go on what are you going to do it comes back even if he didn't wreck the car if you didn't carry it up it's just perfect. Does he have the right. Do you have the right to say hey you see in the nets and you'll get this car again you know or whatever. You know you may have to go your way that this car. When I'm not saying I would want to punish those days that I think I should be treated with the same respect they should take it out of their artists artists. These you know and pay whatever extra has to be paid to do the parity. If it's a joke that costs. The rider who has a conscience against it and he didn't want to do it and they do it anyway they buy for the you know. The...
the argument before the Supreme Court will be on a lot of legal
issues but if you had an opportunity. Personally to address the justices to tell them something about you and your music and the music business and what this. What this means to you what would you want to tell them. Well. I think that we you know. This is suppose I could take this serious but I. And you know we've got an owner Cohen's trust in the Lord with all your heart with always so with all your strength all you might. In the next one is just like it. That's treat your neighbor like you want to be treated. Do that somebody else like you want to be done and to. And we'll also have the right thing happy songs together. And I like the same things they like and it grew a clock in the morning and I laugh with them get up on stage with him and playing that same song and laugh at it and and have fun with it but I don't really want my kids...
here to there getting out of character on
Sunday or whatever. Now there's no. Sorry go ahead. I don't think that the. I don't like that double standard you know I think that putting your best foot forward live in the best you can. And the worst you want to keep. You know to yourself and corrected as best you can you know. I think they've. They've got a good spirit nerving I don't think they meant any harm in the joke is a joke but some jokes you know. This. Fall Apart and hurt people. You know and I don't like. I don't buy goods in the royal residence not here to stand up and say what he wanted to say about it but he would laugh that the party do but I don't think he would have put up with this in. I think for the next person if this goes through and we do. Come out of it like I hope we do. The next person won't have to worry. He knows of his song get trashed. They even in news. They'll have to pay for it. Bill days as co-writer of Oh Pretty Woman wrote that song with Roy Orbison Mr Nice thank you very much for taking time to be with us....
Thank you Lou. Yeah appreciate this very much. Oh Pretty Woman was co-written by build Eason Roy Orbison in the early sixty's. The two Live Crew parity of the song was titled pretty woman and it was recorded in one nine hundred eighty nine a cover of music incorporated owns the copyright to all pretty woman. The rap group to Live crew offered to pay a cough Rose music incorporated for the rights to the music. A cough Rose turned down the offer but two Live Crew recorded the song. Anyway. The group claimed it was fair use of the song as a parody. And not copyright infringement. A conference music has maintained that two Live Crew willfully infringed and commercially exploited the copyright. We conclude our look at the issue of parity and copyright infringement now as we talk with Stephen K.. Mr K. is a New York lawyer representing composers and songwriters. In support of a cough Rose. Among those he represents are Phil Collins. Fred Ebb. John Kander Jerry Leiber Alan Menken...
and Mike Stoller. Steven K. is an attorney who filed a legal brief on behalf of composers and songwriters who support the A kufur Rose music company
. So. A cover those should win it in our judgment and as we have presented it to the Supreme Court and as a cover OSA has submitted it. On the grounds that there are no really good compelling equitable reasons why the two Live Crew should be permitted to use the Oprah the woman. Song. And some of its lyrics. Without getting permission from the copyright owners. That is to say. There are no compelling equitable reasons why the usual rule of copyright...
protection should not be enforced in this
case. Can you give us an example of
a situation where there might be a
compelling reason to do this well. In the first place in in fair use analysis. There is a major distinction and. It's not the only one between. What would be described as a commercial exploitation of of copyrighted material and non-profit use of commercial of copyrighted material in the non-profit area on the statute does ask the courts to look to see whether it one is or one is not there. The non-profit use would favor a finding of fair use because there would be no ultimate in most cases. Adverse effect on the value of the copyright. There are many many factors that have to be taken into account in India terminating that and the. There have been uses in the parity area. Fischer Against these case. The I love Saddam. Case involving Saturday Night Live where the courts have found that there were that there was fair use that in those circumstances. The the use. Served a good purpose and at the same time. Did not have any meaningful adverse economic effect on the value of the copyright. How is it that you became involved in this case. Well we we we represent a number of songwriters and composers. I in particular have been involved. Not only in this area of their use but in representing publishers in another significant case. Known as the American Geophysical Union against Texaco. Where in a completely different environment there for profit. Commercial use of copyrighted material in making photocopies. The fair use issue has has arisen and has been decided by the district court. So this is an area that I am to visual and my. And my firm have been involved in on behalf of publishers and copyright holders....
What do you think the significance is that this case
involves not only young people but a rap group.
In our judgment. That is not a significant issue. It would not make any difference whether we're young people old people whether was in rap. Whether it was in jazz whether it was in more classical music whether was in theater music. The issues. Really...
revolve around other factual circumstances
. Look ahead for us at what you think the impact of this decision will be. Depending on which way it goes either for for your clients or not. Well the the Empacher here and I'm speaking on behalf of our clients...
in our submission to the
Supreme Court. Really focuses on what principles. The Supreme Court. Announces with respect to fair use in the parity area. That is more important. In many respects from the. Outcome of the of this case on its particular facts. To put to put it a little more concretely. The two Live Crew and the many that support to Live Crew are asking the Supreme Court. To change its view was with respect to various elements of fair use and to instead give parity. A special position. That is to say. Parity should be presumed to be a fair use and when we say fair use. That means that you can use copyrighted material without permission of the copyright owner. In the past cases in the hopper and row case involving news reporting in the rear window case and in the Sony case. The Supreme Court said that. No no kind of uses whether it's research news reporting. Teaching should be presumptively a fair use and all of the various factors should be considered. Therefore if the Supreme Court were to decide that parity. Whether to get a special position. That would encourage many others to use copyrighted material without getting permission and. That would be in our client's view. Deleterious to their economic position as well as to their ability to exercise some creative control and maintain some measure of artistic integrity....
From the other point of view if the Supreme Court
declares in this case that the principles. With respect to fair use that they have already expressed such as for example that a commercial exploitation. Will be presumptively found to display were fair use and that a commercial exploitation presumptively will have an adverse effect on the copyright. The value of the copyright and therefore. Fair use may not be found if the Supreme Court were to dis to decide that. That would be the important point. However ultimately the either the Supreme Court or a lower court might apply those principles to these particular facts. We do submit. In our brief that. On the on the traditional principles of fair use applied to the facts of this case the court should affirm the decision of the court of appeals that the two Live Crew. Use in this case was not a fair use. The brief that you filed...
on paper it's something the justices have read. If you had an opportunity to speak
to the justices on the ninth What would you
tell them in person. Well I that's a privilege of Mr rusted your. Well have. If I had two sentences or one to say to the Supreme Court. I would say that there is no reason to create a special category for parity. Different than teaching. Research and other salutary purposes. And that the Supreme Court should in this...
case. The first that they
have had with respect to parity. Expressed the view that the principles that they have previously expressed in the prior cases should be applied in analyzing fair use in the parity field. Stephen King. As an attorney who's filed a brief on behalf of composers and songwriters. In the frozen using case argued before the Supreme...
Court on the ninth thank you very much. Thank you Mr catcher
. Individuals and organizations. Supporting a couple rows music incorporated. Include the following news. A war into the end of a good movie
with. When the jewels and organizations. Supporting Luther Campbell and two
Live Crew. Include the following. Moon Moon or
move forward
to