Copyright, Copy-rap and more… Steve Baron February 7, 2006

Questions Which case involved Roy Orbison’s song “Pretty Woman”? Which case involved Internet visual search engines? Who won the 2 Live Crew case, and why? Who won the Internet search engine case, and why?

2 Live Crew case: Orbison and Dees write “Oh, Pretty Woman” – 1964 Orbison and Dees assign copyrights to Acuff-Rose Campbell writes “Pretty Woman” - 1989 2 Live Crew asks permission to parody song Acuff-Rose refuses 2 Live Crew releases song Within 1 year, 2 Live Crew sells 250,000 copies -A patent is a grant of some privilege, property, or authority to exclude others from making using or selling an invention.

2 Live Crew case: Acuff-Rose sues for copyright infringement 2 Live Crew wins in trial court – fair use Acuff-Rose wins on appeal to 6th Circuit Commercial use eliminates parody defense Supreme Court grants petition for cert.

2 Live Crew case: Fair Use Analysis (17 U.S.C. Sec. 107) Criticism Comment News reporting Teaching Scholarship Research -Books, papers, poetry, novels, movies, songs, computer software and architecture. -I had a case that involved the design of lamp bases.

2 Live Crew case: Fair Use Analysis Purpose and character of use Nature of copyrighted work Amount and substantiality of the portion used Effect of the use upon the potential markets for or value of the copyrighted work

2 Live Crew case: (First Factor) Purpose and character of use Is new work “transformative”? Can parody form the basis of fair use defense? Whether a parodic character may be perceived?

2 Live Crew Case: “We think it fair to say that 2 Live Crew’s song reasonably could be perceived as commenting on the original or criticizing it, to some degree. 2 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.”

2 Live Crew Case: (Second Factor) Nature of the copyrighted work “parodies almost invariably copy publicly known, expressive works”

2 Live Crew Case: (Third Factor) Amount and substantiality of the portion used in relation to the copyrighted work as a whole Quantity and quality must be weighed together “If 2 Live Crew had copied a significantly less memorable part of the original, it is difficult to see how its parodic character would have come through.”

2 Live Crew Case (Fourth Factor) Effect of the use upon the potential market for or value of the copyrighted work Must examine market for original and market for derivative uses 2 Live Crew fails to submit evidence on impact on market of derivative use Case reversed and remanded

Kelly v. Arriba Soft case: Arriba operates visual search engine Searches Internet for images Produces “thumbnail” images

Learnings Don’t mess with Acuff-Rose! Fair Use defense may be applied to parody (even in purely commercial setting) Thumbnails of visuals are probably fair use

Quote of the Day “A man has a right to pass through this world, if he wills, without having his pictures published, his business enterprises discussed, his successful experiments written up for the benefit of others, or his eccentricities commented upon, whether in handbills, circulars, catalogues, newspapers or periodicals.” Alton B. Parker, Chief Justice, New York Court of Appeals Roberson v. Rochater Folding Box Co. (1901)