15 years ago, in the landmark decision Campbell v. Acuff
Rose, the Supreme Court kicked down the door for the development
of a modern concept of fair use of copyrighted works. The
case involved the hideous hip-hop group 2 Live Crew’s hastily
thrown together version of “Oh Pretty Woman,” which appeared
on their album As Clean As They Wanna Be, the Walmart
non- stickered version of their multiplatinum album As
Nasty As They Wanna Be.
2 Live Crew had asked for permission to release a version
of the song with the lyrics changed, Roy Orbison’s publishing
company said no, and 2 Live Crew went ahead and released the
track anyway. Lawsuits and hilarity ensued.
The court ruled that 2 Live Crew’s version was a parody of
the original, and therefore a fair use that didn’t require
permission, a license or payment to Roy Orbison. The entertaining
decision by Justice David Souter is the first (and still the
only) Supreme Court decision to include the word “riff,” may
it fo-shizzle the court, yo.
Parody! Here’s a taste of 2 Live Crew’s parodic lyrics, which
were included in the court’s decision:
headed woman you know your hair could look nice/Bald headed
woman first you got to roll it with rice/Bald headed woman
here, let me get this hunk of biz for ya/Ya know what I’m
saying you look better than rice a roni”
Mencken they’re not. Nonetheless, Justice Souter found that
2 Live Crew’s version was indeed a parody of the original,
Live Crew juxtaposes the romantic musings of a man whose fantasy
comes true, with degrading taunts, a bawdy demand for sex,
and a sigh of relief from paternal responsibility. The later
words can be taken as a comment on the naivete of the original
of an earlier day, as a rejection of its sentiment that ignores
the ugliness of street life and the debasement that it signifies.”
This ruling has always struck me as particularly thin; to
the extent the members of 2 Live Crew were thinking about
anything (other than their dicks) while “composing” this masterpiece,
I’m not sure they were focusing on a commentary of either
Roy Orbison or his hit song. But putting the facts of the
case aside, this decision literally laid down the law of fair
use, and paved the way for a progression of subsequent decisions
that clarified a liberalized understanding of how existing
copyrighted works may be reused and reconstituted. Campbell
led the way for courts to legitimize many types of appropriation
art, which many consider to be the most significant art movement
of the last hundred years. Campbell’s a heavy decision.
And Campbell’s being looked at again right now. Seems
Californian tea-bag senatorial candidate Chuck DeVore has
aimed a couple of attack ads at rival Barbara Boxer using
altered-lyric versions of Don Henley’s “Boys of Summer” and
“All She Wants to Do is Dance.” Don Henley’s not happy and
has gone after DeVore will all his legal guns blazing.
What makes this different from the usual Republican practice
of pilfering cool songs for campaign props is the changed
lyrics. DeVore is claiming that he’s in part making fun of
Henley’s liberal politics in the ads, so that fair use protects
him pursuant to the Campbell decision.
I can’t find DeVore’s ads on the Web, surprisingly, but all
reports are that they are really lame. Which, of course, isn’t
the point. Some commentators have pointed out that DeVore’s
claim that he’s making fun of Henley is an absurd post-hoc
rationale that arose only after Henley sued him. Henley, for
his part, points out that he’s not really a liberal at all.
All the parties’ papers are submitted and there will be a
hearing before the judge in early June. You can find out a
lot more about the case at Copyrights and Campaigns, located
at copyrightsand campaigns.blogspot.com
Oh, I just don’t know about this. On one hand, the broader
the fair use finding, if the court agrees with DeVore here,
the better for the arts and artists in the remix/appropriation
world. But, sheesh, I hate seeing a tea-bag moron win anything,
you know? It’s a conundrum! And it does seem rather odd that
using Henley’s full song would be wrong, but lamely changing
a few words makes it OK. But if you accept that 2 Live Crew
was parodying Roy Orbison, it’s hard to say DeVore’s not
parodying Henley. Damn.
There is the possibility that the court could dodge the fair-use
question altogether and rule on some alternative theory, like
Henley’s unfair business practice claim that DeVore is wrongly
portraying Henley as supporting Boxer.
It’s an interesting case. I’ll keep you posted.