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You be the Judge: Judging Pretty Woman

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SarahSays

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.”

Check out this site to hear the songs for yourself. So, although the judges have spoken, you be the judge!

Sarah Feingold is Etsy's in-house attorney. She is also a jeweler with an extreme sweet tooth.

  • LoucheLab

    LoucheLab says:

    I agree with the ruling. I think that one of the main source of inspiration for artist is (gasp) other artists and the art they make. As long as i's not direct coping, I think it's fine. I can think of a few fine art paintings that could have had the same claim, we might have never been able to see picasso's las Maninas if Velasques would sue, or have Monette's Ophelia if Goya would decide it's just too close for his Macha. I think that both in benefit of art in general, and artist in specific, the option to be inspired by art while to make art should be open as much as possible. I'm sure that the original pretty woman song only gained from the new version being a lot of people suddenly remembered it's existence and went looking for the original more examples of art inspiration \ "copying": http://www.linkinn.com/_Inspiration_Imitation_or_Plagiarism

    6 years ago

  • silentlanguages

    silentlanguages says:

    ah, roy orbison makes me swoon. As does your choice of art!

    6 years ago

  • jamieribisi

    jamieribisi says:

    louche-- with all due respect-- the flaw in your arguement is this: Between Velázquez's painting and Picasso's paintings is a 300 year gap. Goya and Manet had about 60 years going between their Maja paintings. The copyright had definitly worn out in the first case and the images were similar in the second but had considerable differences.

    6 years ago

  • curlyfrysc

    curlyfrysc says:

    Even Al Yankovic gets permission...most of the time. This is clearly copying. The tune and not the mention the opening lines of the song.

    6 years ago

  • twilightrainbow

    twilightrainbow says:

    Do people really not understand what parody is? It's been upheld in court for a reason, and good for it.

    6 years ago

  • gertuine

    gertuine says:

    I think it's a great example of fair use. As others mentioned, artists can be great inspiration for other artists. I mean, at a fundamental level, humans copy lots of things from other humans; how else would new slang words crop up and become "standard" words? (i.e. how else would memes spread?) Limiting fair use excessively (which is what I think often happens in the lawsuit-happy U.S.) is what really stifles people/their creativity. Further, I would argue that, as has happened in the U.S., such harsh restrictions on fair use (like those the Acuff-Rose Music people were seeking) can result in a really litigious society. it's quite fascinating to me, as I'm living in Korea, where it seems we have quite a different situation here. Copying other brands or their distinctive colors/marks/designs is much more common in South Korea. I know the difference, and I'm sure the Koreans do, but it's less important here. (I think Michael Breen, a columnist for the Korea Times, said it best when he surmised that a lot of businesses don't want the expense or commitment of time involved in hiring a company to design a brand-image, and thus many businesses just copy other businesses' style with a few changes. let's hope I paraphrased him correctly. You can see his original article here: http://www.koreatimes.co.kr/www/news/opinon/2008/08/170_28956.html) I don't think people should copy other brands or images completely, but I think the line for fair use needs to be expanded beyond that which appears to be currently valid in the U.S. So, somewhere more restrictive than you might see here in South Korea, but less restrictive (much less) than in the U.S. And for pete's sake, if only people would stop suing so much... sigh.

    6 years ago

  • bunnycaw

    bunnycaw says:

    While I think it is fair for an artist to claim "inspiration" from the work of another, and while a legitimate "parody work" is valid within reason (ie. no undue amount of direct copying without any creative input of the new "artist"). I do NOT think that it is unreasonable of a living artist (or their spouse, band member, etc. who would stand to have a loss of income from said infringement) to protest the blatant use of someone's music, lyrics, copyrighted image, etc. If no such copyright existed, then one person would create, but a 1000 others would rake in the money from that person's legitimate effort while putting out almost no effort of their own. (And the monetary gain from that original artist's work should go to the legitimage artist/spouse/heirs etc.)It is not simplistic to think that a person (or a person's heirs and assigns within a reasonable amount of time after their demise) should hold the right to profit from their work and prevent others from profiting without creating. "Artists" will puff and blow about "inspiration" and "parody" and "use of similar theme and elements" blah, blah, blah when they are "creating" something similar to the work of another artist. However, when it is THEIR work being copied or parodied, they suddenly get very defensive and altogether "not liberal" on the matter! My take on it is this, if you create something derivative, then give credit where credit is due and cease and desist if the original artist asks you to do so. If you parody something, then make it different enough from the original to stand on its own merit, and for goodness sake... ACTUALLY SAY SOMETHING with your parody! (But don't bluster and blow when the original artist objects to your parody.) If you are using someone else's work as some element of your own, you are borrowing a small piece of their soul/essence/spirit/whatever so treat it with a little respect and be aware that you are benefitting from their work even if yours is "giving theirs exposure". There are plenty of times that a copyright infringement case is not necessary, but we can't do away with a copyright system completely or no artist will ever really get their due in a society rife with the lazy make-a-buck-at-anyone's-expense type. And to comment on many Asian countries refusal to acknowledge copyrights and blatant theft of intellectual property... I find it indefensible. Hard work was put into the creation of these items, be they music, electronics, artwork, etc. It is theft if you directly copy something, even if you "change an element here and there". Just because your company is too cheap to pay someone to create something distinctive for your firm, it does not mean theft is "just fine". If some "angel network" type arrangement is stated where the design firm or original trademark/hallmark/logo holder doesn't care if you use their branding/logo/mascot/whatever, then that is fine. Otherwise, you are stealing, and better yet, you are riding on the coat-tails of the logo holder's fame, good service, quality of product etc. by the unjust association in the consumer's mind of your product or service with that famous one you are copying. Just my 2 cents worth...

    6 years ago

  • matouenpeluche

    matouenpeluche says:

    I agree too - another example is Bacon's iconic Screaming Pope series which owed a lot to Velasques' original Pope painting in Rome. ....the list of superb art that riffs off other art is endless! Thank you for this article!

    6 years ago

  • ShaktipajDesigns

    ShaktipajDesigns says:

    I agree that the parody should be allowed - and yes, too many of us forget that parody, satire and sarcasm are perfectly valid artforms in themselves. However, I also think that 2LiveCrew stepped over the line (which is VERY fine, obviously) between parody and copyright infringement when they opted to use the highly recognizable base line without changing it one iota! I suppose one could argue that the song is so intrinsic to the cultural musical lexicon that the recognition of ownership of the original is given merely by choosing that particular song. I mean, why parody a song that no one knows? But even Weird Al changes the music enough to keep the lawyers out of his hair. He even managed to do it with his parody of "My Sharona", (My Bologna)and those opening bars are pretty unmistakable as well. Of course, he also had the blessing of The Knack to do so - something that is patently missing from the efforts of 2LiveCrew. Forgive the pun, puleeze! Thanks for the discussion!

    6 years ago

  • LondonParticulars

    LondonParticulars says:

    Amazing, all the different topics you can find on etsy. My current favorite parody is on etsy and based on the best selling "Keep Calm And Carry On" posters, genious!

    5 years ago

  • miniaturecrochet

    miniaturecrochet says:

    Copyright on the Finished Piece I learn new things about copyright all of the time. This article about pattern copyright, is related to selling your finished crochet pieces upon completion, when the author says you may not sell your finished piece. The actual written pattern is copyright and may not be sold or redistributed, unless you have permission from the author. The only place I have seen authors do this is on the Internet. Copyright does not cover the finished work. You are not required to ask permission to sell your finished piece. If you have an opportunity to make some money from your crochet work, sell it. Before the Internet, I had never heard of a statement like that attached to crochet patterns. Maybe that is why the statement does not exist in crochet magazines. Copyright only protects your body of work like pictures, graphics, video, recording and writing that you have done yourself. It does not protect an idea or finished piece. http://www.tabberone.com/Trademarks/CopyrightLaw/Patterns.shtml

    4 years ago

  • miniaturecrochet

    miniaturecrochet says:

    Copyright on the Finished Piece I learn new things about copyright all of the time. This article about pattern copyright, is related to selling your finished crochet pieces upon completion, when the author says you may not sell your finished piece. The actual written pattern is copyright and may not be sold or redistributed, unless you have permission from the author. The only place I have seen authors do this is on the Internet. Copyright does not cover the finished work. You are not required to ask permission to sell your finished piece. If you have an opportunity to make some money from your crochet work, sell it. Before the Internet, I had never heard of a statement like that attached to crochet patterns. Maybe that is why the statement does not exist in crochet magazines. Copyright only protects your body of work like pictures, graphics, video, recording and writing that you have done yourself. It does not protect an idea or finished piece. http://www.tabberone.com/Trademarks/CopyrightLaw/Patterns.shtml

    4 years ago