Upholding Musical Parody in Campell V
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Pepperdine Law Review Volume 23 Issue 1 Article 6 12-15-1995 As Unoriginal as They Wanna Be: Upholding Musical Parody in Campell v. Acuff-Rose Music, Inc. Gregory D. Deutsch Follow this and additional works at: https://digitalcommons.pepperdine.edu/plr Part of the First Amendment Commons, and the Intellectual Property Law Commons Recommended Citation Gregory D. Deutsch As Unoriginal as They Wanna Be: Upholding Musical Parody in Campell v. Acuff-Rose Music, Inc., 23 Pepp. L. Rev. Iss. 1 (1996) Available at: https://digitalcommons.pepperdine.edu/plr/vol23/iss1/6 This Note is brought to you for free and open access by the Caruso School of Law at Pepperdine Digital Commons. It has been accepted for inclusion in Pepperdine Law Review by an authorized editor of Pepperdine Digital Commons. For more information, please contact [email protected], [email protected], [email protected]. As Unoriginal as They Wanna Be: Upholding Musical Parody in Campbell v. Acuff-Rose Music, Inc. I. INTRODUCTION How come you're always such a fussy young man? Don't want no captain crunch Don't want no raisin bran Well don't you know that other kids are Starving in Japan So eat it, just eat it' Singer-songwriter "Weird Al" Yankovic shot to fame in the 1980s and 1990s with his inspired parodies of Top 40 pop songs.2 Weird Al's re- worked versions were irreverent, clever, and catchy? Those little ditties sold millions of records, prompting one commentator to dub Weird Al a "startling commercial success."4 Always ready to cash in on a hot trend, the American music industry followed Weird Al's lead and "reawaken[ed] to the reality of just how lucrative music parody can be."5 1. MICHAEL JACKSON & AL YANKOViC, Eat It, on THE FOOD ALBuM (Rock 'n' Roll Records/Scotti Bros. Records 1993). 2. Charles J. Sanders & Steven R. Gordon, Stranger in Parodies: Weird Al and the Law of Musical Satire, 1 FoRDHAM ENT. MEDIA & INTELL PROP. L.F. 11, 11 (1990). Yankovic gained notoriety parodying such songs as Michael Jackson's "Beat It" with "Eat It" and Madonna's "Like A Virgin" with the blatantly unerotic "Like A Sur- geon." See MICHAEL JACKSON & AL YANKoVIC, Eat It, on THE FOOD ALBUM (Rock 'n' Roll Records/Scotti Bros. Records 1993); AL YANKOviC, Like A Surgeon, on DARE TO BE STUPID (Scotti Bros. Tapes, Compact Discs & Records 1990). 3. Yankovic's parody of The Knack's "My Sharona" is an ode to lunch meaL "Oooh, my little hungry one, hungry one/Open up a package of my bologna/Oooh, I think the toast is done, the toast is done/Top it with a little of my bologna." D. FIEGER, B. AVERRE, A. YANKOVIC, My Bologna, on THE FOOD ALBuM (Rock 'n' Roll Records/Scotti Bros. Records 1993). Other Yankovic titles include "Living With A Her- nia" ("Living in America") and "I Lost On Jeopardy" ("Our Love's In Jeopardy"). See Sanders & Gordon, supra note 2, at 11. 4. Sanders & Gordon, supra note 2, at 11. Yankovic has sold more than three million copies of his records. Id. 5. Id. Who should profit from these chart-topping charlatans? The original artist who copyrighted the song, or the parodist? With the heightened popularity of musical parody, the issue arises whether highly marketable song parodies are "fair uses" of copyrighted material and thus exempt from the infringement provisions of the Copyright Act of 1976.6 Musical parody7 is certainly not new. For centuries, people have used this form of satire as art, criticism, and humor.' More than thirty years ago, one circuit judge noted that "parody and satire are deserving of substantial freedom-both as entertainment and a form of social and literary criticism."9 To this day, parody enjoys special protection. The current Copyright Act of 1976 allows parody to sidestep infringement liability if the parody is deemed a fair use of copyrighted material."0 The Act's doctrine of fair use has been described as "one of the most important and well-estab- lished limitations on the exclusive right of copyright owners."" Despite parody's existence through the ages and this country's devel- opment of the doctrine of fair use for well over a century, by late 1993 6. 17 U.S.C. § 107 provides that a work made for the purposes of criticism or comment constitutes a "fair use" and "is not an infringement of copyright" 17 U.S.C. § 107 (1989 & Supp. 1993) The Copyright Act states: In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include- (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. 7. Parody has been defined as a "literary or artistic work that imitates the char- acteristic style of an author or a work for comic effect or ridicule, often with certain peculiarities greatly heightened or exaggerated." 11 THE OXFORD ENGLISH DICTIONARY 247 (2d ed. 1989). Musical parody is "an imitation of a musical composition in which the original text or music has been altered usu[ally] in a comical manner." WEBSTER'S THIm NEW INTERNATIONAL DICTIONARY 1643 (1986). 8. Sanders & Gordon, supra note 2, at 11; see also Julie Bisceglia, Parody and Copyright Protectio: Turning the Balancing Act into a Juggling Act, 34 COPYRIGHT L. SYMP. (ASCAP) 1, 1 (1987) (crediting the ancient Greeks with the creation of paro- dy). 9. Berlin v. E.C. Publications, Inc., 329 F.2d 541, 545 (2d Cir. 1964), cert. denied, 379 U.S. 822 (1964). 10. See 17 U.S.C. § 107 (1989 & Supp. 1993); supra note 6. 11. CRAIG JOYCE FT AL, COPYRIGHT LAW 779 (3d ed. 1994); see also Campbell v. Acuff-Rose Music, Inc., 114 S. Ct. 1164, 1170 (1994) (citing Folsom v. Marsh, 9 F. Cas. 342, 344-45 (C.C.D. Mass. 1841) (No. 4,901) (discussing what would ultimately be labeled the fair use doctrine)). [Vol. 23: 205, 1995] As Unoriginal as They Wanna Be PEPPERDINE LAW REVIEW the issue of fair use in the troubled context" of musical parody had yet to reach the United States Supreme Court. The case of CampbeU v. Acuff-Rose Music, Inc." marked the Court's first examination of the fair use doctrine in the complex area of musical parody.4 The Supreme Court's holding in CampbeU enhances the ability of art- ists to use copyrighted musical works in such a manner as to avoid pen- alty for copyright infringement. 5 As a result, the decision increases the protection of a musical artist's fundamental right to free speech, which ultimately benefits society through broader exposure to information and ideas. 6 This Note takes the position that, while critics of the "fair use" doc- trine abound, the Supreme Court properly upheld the use of the doctrine, correctly applied the four-factor test embodying "fair use," and clarified the doctrine as well. When determining the legitimacy of parodies, courts must take into account two counterbalancing rationales that underlie two distinct yet interdependent constitutional provisions' 7-the interest of authors in commercially exploiting their work under the Copyright Clause" and the public's interest in the free flow of ideas and the broadest dissemination of information under the First Amendment.'" With these important con- 12. The doctrine of fair use has developed a reputation as "the most troublesome in the whole law of copyright." Dellar v. Samuel Goldwyn, Inc., 104 F.2d 661, 662 (2d Cir. 1939). Further, Judge Nelson described parody as "the most troublesome fair use issue." Acuff-Rose Music, Inc. v. Campbell, 972 F.2d 1429, 1439 (6th Cir. 1992) (Nel- son, J., dissenting), rev'd, 114 S. Ct. 1164 (1994). 13. 114 S. Ct. 1164 (1994). 14. The Court discussed fair use in the parody context only once previously, but did not render an opinion because of an equally divided court. Id. at 1171 (citing Benny v. Loew's Inc., 239 F.2d 532 (9th Cir. 1956), aWfd sub nom. Columbia Broad- casting Sys. Inc. v. Loew's Inc., 356 U.S. 43 (1958) (per curiam)). 15. See Campbell, 114 S. Ct. at 1167-79 (upholding the fair use doctrine and hold- ing that a "commercial parody . may be a fair use within the meaning of. 17 U.S.C. § 107"). 16. See id. 17. See Paul Goldstein, Copyright and the First Amendment, 70 COLum. L REV. 983, 991 (1970) (stating that "reconciliation of copyright with the first amendment re- quires the strildng of a similar balance between the property interest of the copyright holder and the public interest" in information and ideas). 18. U.S. CONsT. art I, § 8, cl. 8. "The Congress shall have Power ... To promote the Progress of Science and useful Arts, by securing for limited Times, to Au- thors ... the exclusive Right to their respective Writings ... ." Id. 19. U.S. CONST. amend. I. "Congress shall make no law . .. abridging the freedom of speech, or of the press .... " Id. siderations in mind, the current fair use doctrine is the appropriate test to implement because it strikes an optimal balance between these two opposing factors. To hold otherwise, by favoring a modified version or a completely new creation, would abrogate the most meaningful, definitive, and workable standard courts have in adjudicating parody claims.