Sometimes in order to play judge and fully investigate a situation, I have to acquire evidence. And so, many times when I read an intellectual property dispute regarding a musical work, I purchase and listen to the music at issue. Yes, truth be told, I have an “infringement” section on my MP3 player. Unfortunately, more often than not, I will later learn that parties settled out of court and cannot discuss the details of the case. So then when my play list brings the allegedly infringing song back into my legal ears, I am left to wonder what exactly happened. Thankfully I am also often left with some pretty cool music. To me, the only thing worse than a song stuck in your head is not knowing whether or not that song is legit. To avoid this situation, this time instead of us Etsians playing judge I’m going to leave the job to a select few: the Supreme Court of the United States. However, please feel free to comment on this case and let us know what you would decide if you were the judge. In 1964, Roy Orbison released a song titled “Oh, Pretty Woman” which reached number one in the Billboard Hot 100. The song’s lyrics paint a romantic picture of a man watching a beautiful woman and at the last minute she turns around.
Here’s a sample of Orbison’s lyrics:
Pretty Woman, walking down the street, Pretty Woman, the kind I like to meet, Pretty Woman, I don’t believe you, You’re not the truth, No one could look as good as you
In 1989, 2 Live Crewrecorded a song titled “Pretty Woman” and sampled the distinctive baseline from the Orbison song. 2 Live Crew’s lyrics describe a “bald-headed woman” a “two timing woman” and a “big hairy woman.”
Here’s a sample of 2 Live Crew’s lyrics:
Big hairy woman you need to shave that stuff Big hairy woman you know I bet it’s tough Big hairy woman all that hair it ain’t legit ‘Cause you look like ‘Cousin It’
Almost a year later, after nearly a quarter of a million copies of 2 Live Crew’s recording had been sold, Orbison’s publisher, Acuff-Rose Music sued 2 Live Crew and argued that the fair use doctrine did not permit commercial reuse of copyright material. District Court granted summary judgment for 2 Live Crew, reasoning that the song was a parody which “quickly degenerates into a play on words, substituting predictable lyrics with shocking ones” to show “how bland and banal the Orbison is” and its commercial purpose was no bar to fair use. The Court of Appeals for the Sixth Circuit reversed and remanded finding that “every commercial use … is presumptively … unfair.” In 1994, the United States Supreme Court heard the case and in a seminal fair use decisiondecided in 2 Live Crew’s favor, thus greatly expanding the fair use doctrine to protect parodies created for profit. According to the court,
“[i]t was error for the Court of Appeals to conclude that the commercial nature of 2 Live Crew’s parody of ‘Oh, Pretty Woman’ rendered it presumptively unfair. No such evidentiary presumption is available to address either the first factor, the character and purpose of the use, or the fourth, market harm, in determining whether a transformative use, such as parody, is a fair one. The court also erred in holding that 2 Live Crew had necessarily copied excessively from the Orbison original, considering the parodic purpose of the use. We therefore reverse the judgment of the Court of Appeals and remand for further proceedings consistent with this opinion.”
Sarah Feingold is Etsy's in-house attorney. She is also a jeweler with an extreme sweet tooth.