{"id":311,"date":"2019-02-25T14:16:31","date_gmt":"2019-02-25T14:16:31","guid":{"rendered":"http:\/\/blogs.harvard.edu\/copyrightosc\/?p=311"},"modified":"2019-02-25T14:16:31","modified_gmt":"2019-02-25T14:16:31","slug":"fair-use-week-2019-day-one-with-guest-expert-kenneth-crews","status":"publish","type":"post","link":"https:\/\/archive.blogs.harvard.edu\/copyrightosc\/2019\/02\/25\/fair-use-week-2019-day-one-with-guest-expert-kenneth-crews\/","title":{"rendered":"Fair Use Week 2019: Day One With Guest Expert Kenneth Crews"},"content":{"rendered":"

We are delighted to kick off the 6th Annual Fair Use Week with a guest post by the worldwide copyright expert, Dr. Kenneth Crews as he muses over the 25th Anniversary of one of the most critical of all fair use cases, Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994), the 2 Live Crew Case!<\/em><\/p>\n

Fair Use and the Growth of Creativity: Celebrating a Quarter Century<\/h2>\n

by Kenneth D. Crews<\/p>\n

Dust off the CD player and get in the mood for Boyz II Men and Ace of Base.\u00a0 We\u2019re gonna party like it\u2019s 1994!\u00a0 In just several days, on March 7<\/a> next week to be exact, we can celebrate the 25th anniversary of the Supreme Court\u2019s ruling in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994)<\/a><\/em>.\u00a0 You know that a case about early rock music by a guy named Skyywalker<\/a> has got to be good.\u00a0 The Campbell<\/em> decision is in fact the most important fair use court ruling \u2013 ever.<\/p>\n

That\u2019s right.\u00a0 Campbell<\/em> is the most important fair use ruling in the history of the known universe.\u00a0 It has been cited in nearly 700 subsequent decisions from U.S. courts and has been the springboard thousands of articles and studies. The case is referenced with joy by copyright professionals around the world who yearn for the clear rights we now have in the U.S. to make the critical and even despicable parodies, as the Supreme Court unequivocally sanctioned.<\/p>\n

Skewering and criticizing are among the most American pursuits \u2013 they are extensions of our beloved free speech traditions \u2013 and the Court preserved the spirit of that Weltanschauung<\/a><\/em> in the framework of fair use and copyright law.\u00a0 The task for the Supreme Court was to discern and articulate when fair use would allow the creation of a parody without infringing the copyright in the underlying work.\u00a0 The subject matter in the Campbell<\/em> case was the pop song, Oh, Pretty Woman<\/a><\/em>, made famous in 1964 by the singer and songwriter, Roy Orbison.<\/p>\n

\"2LiveCrew1\"<\/p>\n

A parody, unlike a satire, necessarily makes use of a specific original work.\u00a0 A satire might use a song or other existing work to critique or mock something else.\u00a0 Think of Weird Al Yankovic being generally gluttonous<\/a> to the tune of Beat It<\/em>.\u00a0 Many other songs could have been the vehicle for pie hole humor.\u00a0 By contrast, a parody comments on the underlying work itself; a parody must use at least a bit of the work it is seeking to attack.<\/p>\n

\"2LiveCrew2\"<\/p>\n

In the Campbell<\/em> case, the rap group 2 Live Crew rewrote the original Orbison opus in a quest to criticize and comment on its sentiment of a simple and perhaps misguided romantic episode.\u00a0 Justice David Souter<\/a>, one of the most well-read Supreme Court jurists in recent decades, recast the legal analysis with grace of a literary analysis and the comprehension of a constitutional scholar.\u00a0 Souter recognized through the unanimous decision that fair use is essential to a functional copyright law, to critical reflection, and to the inspiration of new creativity:<\/p>\n

[T]he goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works. \u00a0Such works thus lie at the heart of the fair use doctrine\u2019s guarantee of breathing space within the confines of copyright. . . .<\/p><\/blockquote>\n

The Court gave a strong endorsement to the policies behind the law, but the most enduring legacy of Campbell<\/em> has been its restructuring of the legal principles of fair use.\u00a0 The Supreme Court had previously rendered fair use decisions about quoting from a presidential autobiography<\/a> and recording a TV broadcast at home<\/a>.\u00a0 While the Court based its decisions on the four factors in the fair use statute<\/a>, the analysis was often muddled and supported by interpretative principles that tended to ossify fair use at a time when the need for flexibility was on the rise.<\/p>\n

Flexibility in fair use allows the law to apply to diverse works for a widening range of new uses. The Supreme Court in Campbell<\/em> abandoned earlier edicts against commercial uses, and even against using the \u201cheart\u201d of a work.\u00a0 The Court turned away from declaring market harm as the most important factor, and it elevated the notion of \u201ctransformative\u201d uses.\u00a0 Under Campbell<\/em>, all four factors of fair use are to be evaluated together, and each is weighted according to the strength of the evidence.<\/p>\n

Justice Souter vividly understood that parody is a form of criticism, and society is best served through open commentary on music, literature, art, politics, and more.\u00a0 The subject of Campbell<\/em> may have been a chipper ditty with a virtuous sentiment and a compelling bass riff.\u00a0 Through the last 25 years, however, the real subject of Campbell<\/em> has become clear.\u00a0 The more flexible conception of fair use that Campbell<\/em> espouses is not only about using existing works \u2013 it is about creating an entire new breed of works.<\/p>\n

Consider again life in 1994.\u00a0 The Simpsons<\/em> was in its fifth season, and parody recordings had been the oeuvre of Allan Sherman<\/a> and Stan Freberg<\/a>.\u00a0 But by coming in 1994, the Campbell<\/em> decision inadvertently became a turning point in relationship of copyright to technological change.\u00a0 The internet was in its formative years, YouTube<\/a> was a decade from inception, and the more aggressive parodies of South Park<\/em> and The Daily Show<\/em> were mere brainstorms.\u00a0 Campbell<\/em> opened the way for fuller exploitation of the humor, taste, media, political intrigue, cable networks, worldwide connections, and digital tools that were about to revolutionize our lives.<\/p>\n

The flexibility that Campbell<\/em> brought to fair use has allowed this social and intellectual transformation to prosper.\u00a0 It also fostered the creativity of appropriation art, the trenchant dissection of political news, and the digitization and analysis of millions of books and other copyrighted works.\u00a0 The Campbell<\/em> ruling brought new meaning to fair use exactly when technology was widening possibilities, and when our social and political climate demanded a critical examination \u2013 and even a stinging parody.\u00a0 The Supreme Court showed tremendous foresight in 1994 and gave us something to truly celebrate a quarter century later.<\/p>\n

Kenneth D. Crews is an attorney and international copyright consultant with Gipson Hoffman & Pancione<\/a> in Los Angeles, California.\u00a0 He was previously on the faculty and founding director of copyright offices at Columbia University and Indiana University, and he has been a consultant for the World Intellectual Property Organization<\/a> since 2007.\u00a0 Dr. Crews is the author of Copyright Law for Librarians and Educators<\/a>, forthcoming soon in a 4th edition.<\/em><\/p>\n

 <\/p>\n","protected":false},"excerpt":{"rendered":"

We are delighted to kick off the 6th Annual Fair Use Week with a guest post by the worldwide copyright expert, Dr. Kenneth Crews as he muses over the 25th Anniversary of one of the most critical of all fair use cases, Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994), the 2 Live Crew […]<\/p>\n","protected":false},"author":6259,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_feature_clip_id":0,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":true,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2},"jetpack_post_was_ever_published":false},"categories":[1],"tags":[],"class_list":["post-311","post","type-post","status-publish","format-standard","hentry","category-uncategorized"],"jetpack_publicize_connections":[],"jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/p7gxeS-51","jetpack_featured_media_url":"","_links":{"self":[{"href":"https:\/\/archive.blogs.harvard.edu\/copyrightosc\/wp-json\/wp\/v2\/posts\/311","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/archive.blogs.harvard.edu\/copyrightosc\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/archive.blogs.harvard.edu\/copyrightosc\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/copyrightosc\/wp-json\/wp\/v2\/users\/6259"}],"replies":[{"embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/copyrightosc\/wp-json\/wp\/v2\/comments?post=311"}],"version-history":[{"count":23,"href":"https:\/\/archive.blogs.harvard.edu\/copyrightosc\/wp-json\/wp\/v2\/posts\/311\/revisions"}],"predecessor-version":[{"id":336,"href":"https:\/\/archive.blogs.harvard.edu\/copyrightosc\/wp-json\/wp\/v2\/posts\/311\/revisions\/336"}],"wp:attachment":[{"href":"https:\/\/archive.blogs.harvard.edu\/copyrightosc\/wp-json\/wp\/v2\/media?parent=311"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/copyrightosc\/wp-json\/wp\/v2\/categories?post=311"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/copyrightosc\/wp-json\/wp\/v2\/tags?post=311"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}