No. It is not automatically illegal. A lower court made a mistake by saying that any parody made for money is probably illegal. The 'fair use' rule exists so people can create new things based on old ones, especially for things like commentary or criticism. A parody is a form of criticism because it comments on the original work. The most important question is whether the parody 'transforms' the original into a new song with a new message. To make a good parody, you have to copy some of the most memorable parts of the original so people know what you're making fun of. A parody is only a problem if it acts as a replacement for the original song, hurting its sales—not if it's just a harsh critique that makes the original less popular.

No. I agree, but we have to be careful. For a parody to count as fair use, it must actually make fun of the original song itself. You can't just borrow a famous tune to make a joke about something totally unrelated and call it a parody. The joke has to be aimed at the original work. This rule makes sure that people aren't just piggybacking on famous works to get attention for their own, unrelated ideas. Courts shouldn't make it too easy for people to copy others' work and later claim it was just a parody.

Yes, 2 Live Crew's funny version might be a fair use, even though they made money from it. The appeals court was wrong to say it's almost never fair use just because it makes money. They were also wrong to say 2 Live Crew copied too much without considering that parodies often need to copy a lot to make their point. The case needs to be looked at again with these things in mind.

I agree the case should be sent back to the lower court. A parody has to actually make fun of the original song itself, not just use it to be funny in general. We have to be careful not to let anyone call something a parody to get around copyright law, or else people will have less reason to make new creative works.

Yes, the funny rap version of the song 'Oh, Pretty Woman' by 2 Live Crew might be allowed by law even though they made money from it. The appeals court was wrong to say it's almost never fair use just because it makes money. They were also wrong to say 2 Live Crew copied too much without considering that parodies often need to copy a lot to make their point. The case needs to be looked at again with these things in mind.

A work is transformative if it "adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message." Id

"[T] he more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use."

This factor requires courts to consider not only the extent of market harm caused by the particular actions of the alleged infringer, but also whether unrestricted and widespread conduct of the sort engaged in by the defendant would result in a substantially adverse impact on the potential market for the original.

On balance, Plaintiffs should prevail on this issue—the Supreme Court in Campbell notes that "[t] he use... of a copyrighted work to advertise a product, even in parody, will be entitled to less indulgence under the first factor of the fair use enquiry, than the sale of the parody for its own sake...."

"From the infancy of copyright protection, some opportunity for fair use of copyrighted materials has been thought necessary to fulfill copyright's very purpose, `to promote the Progress of Science and useful Arts

The fair use doctrine "permits and requires courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster

The Supreme Court has recognized that "parody has an obvious claim to transformative value" because, "[l] ike less ostensibly humorous forms of criticism, it can provide social benefit, by shedding light on an earlier work, and, in the process, creating a new one."

"All [the factors] are to be explored, and the results weighed together, in light of the purposes of copyright."

Parody has transformative value protected under Section 107 because it can provide social benefit by commenting on the original work, and in the process, create a new one.

The transformative use analysis is an integral question under the first factor, and in fair use generally.

No. The commercial nature of a parody does not create a presumption of unfairness that bars it from being a fair use under the Copyright Act. The Court of Appeals erred by applying a presumption from Sony that 'every commercial use of copyrighted material is presumptively unfair.' The fair use analysis requires a case-by-case balancing of four statutory factors, with commercialism being only one element of the first factor. The central inquiry for the first factor is whether the use is 'transformative'—that is, whether it adds new expression, meaning, or message. Parody, as a form of criticism and commentary, has a strong claim to transformative value. Regarding the third factor (amount used), a parody must be able to 'conjure up' the original to make its point, so copying the 'heart' of a work is not automatically excessive. For the fourth factor (market effect), the Sony presumption of market harm applies to verbatim copying, not transformative works; courts must distinguish between criticism that suppresses demand (not a cognizable copyright harm) and appropriation that usurps the market for the original or its derivatives.

No. While the commercial nature of a work does not render it presumptively unfair, the fair use exception for parody must be carefully limited. A parody qualifies for fair use protection only if it targets the original work for commentary or criticism. It is not enough for the new work to simply use the original in a humorous way to comment on society in general; the original must be, at least in part, the object of the parody. This targeting requirement is critical because it justifies the borrowing and helps ensure the parody is a new, creative work rather than a market substitute. Courts should require more than 'arguable parodic content' and resolve doubts against the self-proclaimed parodist to prevent the exception from weakening copyright protection.

Yes, 2 Live Crew's commercial parody can be a fair use. The Court of Appeals erred in giving virtually dispositive weight to the commercial nature of the parody by applying a presumption against fair use arising from its commercial character. No such evidentiary presumption is available to address either the first factor, the character and purpose of the use, or the fourth, market harm. The appeals court also erred in holding that 2 Live Crew copied excessively from the Orbison original, considering the parodic purpose of the use. The judgment is reversed and the case remanded for further proceedings.

I agree that remand is appropriate. Parody may qualify as fair use only if it draws upon the original composition to make humorous or ironic commentary about that same composition. It is not enough that the parody use the original in a humorous fashion, however creative that humor may be. The definition of parody must be kept within appropriate bounds to avoid weakening copyright protection and reducing financial incentives to create.

Yes, 2 Live Crew's commercial parody of 'Oh, Pretty Woman' can constitute fair use under the Copyright Act of 1976. The Court of Appeals erred in giving virtually dispositive weight to the commercial nature of the parody by applying a presumption against fair use arising from its commercial character. No such evidentiary presumption is available to address either the first factor, the character and purpose of the use, or the fourth, market harm. The appeals court also erred in holding that 2 Live Crew copied excessively from the Orbison original, considering the parodic purpose of the use. The judgment is reversed and the case remanded for further proceedings.

Campbell v. Acuff–Rose Music, Inc.

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