Acuff-Rose Music, Inc. v. Campbell

• Decision Date: 26 October 1992
• Docket Number: No. 91-6225,ACUFF-ROSE,91-6225
• Citation: 972 F.2d 1429
• Parties: , 1992 Copr.L.Dec. P 26,966, 23 U.S.P.Q.2d 1817 MUSIC, INC., Plaintiff-Appellant, v. Luther R. CAMPBELL, a/k/a Luke Skyywalker; Christopher Wongwon, a/k/a Fresh Kid Ice; Mark Ross, a/k/a Brother Marquis; David Hobbs, a/k/a Mr. Mixx; professionally known as 2 Live Crew; Luke Skyywalker Records, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1429

972 F.2d 1429

61 USLW 2116, 1992 Copr.L.Dec. P 26,966,

23 U.S.P.Q.2d 1817

ACUFF-ROSE MUSIC, INC., Plaintiff-Appellant, v. Luther R. CAMPBELL, a/k/a Luke Skyywalker; Christopher Wongwon, a/k/a Fresh Kid Ice; Mark Ross, a/k/a Brother Marquis; David Hobbs, a/k/a Mr. Mixx; professionally known as 2 Live Crew; Luke Skyywalker Records, Defendants-Appellees.

No. 91-6225.

United States Court of Appeals Sixth Circuit.

Argued May 15, 1992.

Decided Aug. 17, 1992.

Rehearing and Rehearing En Banc Denied Oct. 26, 1992.

E. Andrew Norwood (briefed), Francis J. Del Casino (briefed), R. Eddie Wayland (argued and briefed), Nora T. Cannon (briefed), King & Ballow, Nashville, Tenn., for plaintiff-appellant.

Alan Mark Turk (argued and briefed), Sanford R. Ross, Nashville, Tenn., for defendants-appellees.

Before: NELSON and NORRIS, Circuit Judges; and JOINER, Senior District Judge. ^*

JOINER, Senior District Judge.

In this copyright case, plaintiff appeals summary judgment granted to defendants. The district court held that defendants' use of a song owned by plaintiff was a parody and therefore constituted a fair use of copyrighted material under section 107 of the Copyright Act, 17 U.S.C. § 101 et seq.

The 2 Live Crew, a rap music group, released for commercial distribution a version of Acuff-Rose Music's copyrighted song, "Oh, Pretty Woman." Acuff-Rose sued The 2 Live Crew, its individual members and its record company for copyright infringement and alleged pendent state law claims of interference with business relations and interference with prospective business advantage. Defendants filed a motion for dismissal, which was treated as a motion for summary judgment. The district court granted summary judgment holding that The 2 Live Crew had created a parody and that the parody was a non-infringing "fair use" of the song as defined by section 107 of the 1976 Copyright Act. 17 U.S.C. § 107. We reverse.

I.

"Oh, Pretty Woman" was written and recorded by Roy Orbison and William Dees in 1964. Rights to the song were assigned to Acuff-Rose that same year, and Acuff-Rose registered for copyright protection. The song has become a pop music standard, and Acuff-Rose has realized substantial income from the licensing of "cover" recordings and other derivative works.

Luther Campbell, lead vocalist and song writer of The 2 Live Crew (2 Live Crew), wrote a version of "Oh, Pretty Woman" in May 1989, which he entitled "Pretty Woman." By affidavit, Campbell stated that he had intended to create a parody as an attempt "through comical lyrics, to satirize the original work...." In June 1989, Campbell's company, Luke Records (then doing business as Skyywalker Records), released "Pretty Woman" as one of ten tracks on a collection entitled "As Clean As They Wanna Be." The credits on the album ¹ recognize Orbison and Dees as the writers of "Pretty Woman," and Acuff-Rose as publisher of the song.

On July 5, 1989, following release of the album, Linda Fine, general manager of Luke Records, wrote a letter to Gerald Tiefer of Opryland Music Group (of which Acuff-Rose is a part) to "inform [Tiefer] of 'Two Live Crew's' desire to do a parody" of "Oh, Pretty Woman." ² Fine stressed that a parody was intended and that the popularity of 2 Live Crew ensured substantial sales:

At the time of this writing the Group has a cut on the Billboard Rap Chart. I have enclosed a copy of the lyrics, so that you may see their satirical parody, very similar in vain [sic] to what Weird Al Yankovic and other satirical artists are doing.

We intend that all credits (writer & publisher) show your complete ownership of the song, and of course we intend to pay statutory rates.

Kindly keep in mind that we present this to you in a humorous sense and in no way should this be construed as anything but a novelty record that will be heard by hundreds of thousands of new listeners in their homes.

Fine included a cassette tape of 2 Live Crew's version of the song and a lyric sheet for Tiefer to consider.

Tiefer responded tersely: "I am aware of the success enjoyed by 'The 2 Live Crews', but I must inform you that we cannot permit the use of a parody of 'Oh, Pretty Woman.' " This refusal to grant a license did not dissuade 2 Live Crew from continuing to sell "As Clean As They Wanna Be."

Acuff-Rose brought suit in June 1990 and defendants responded by filing a motion to dismiss, accompanied by affidavits, and sought to deposit $13,867.56. This amount was apparently calculated after reference to statutory royalty rates established by the Copyright Act, and reflected defendants' understanding of what was owed to Acuff-Rose for use of the copyrighted song. The district court ordered the funds deposited with the Clerk of Court. ³ Acuff-Rose responded with affidavits which the district court relied upon when granting summary judgment.

Among the affidavits presented, defendants presented that of Oscar Brand. ⁴ Brand, who has himself recorded a number of songs which he terms "parodies," stated his opinion that "both the words and the music of the 2 Live Crew performance are classic parodies." Brand dissected the two songs and found substantial similarities of musical structure between them. The 2 Live Crew version has the same 4/4 drum beat as the original and includes a "very recognizable 'bass riff,' " which "is repeated eight times...." However, the 2 Live Crew version diverges from the original by following the recognizable riff with "an atypical scraper--a Latin musical device, quite antithetic to the Orbison musical styling." Further, in the 2 Live Crew version, the lead vocalist sings (or raps) "in the key of B major, which, performed against the A major chorus, gives the song a comic aspect."

Lyrically, Brand found "Pretty Woman" to be consistent with a long tradition in the United States of making social commentary through music. African-American rap music, Brand stated, uses parody as a form of protest, and often substitutes new words to "make fun of the 'white-bread' originals and the establishment...." In "Pretty Woman," Brand concluded, "this anti-establishment singing group is trying to show how bland and banal the Orbison song seems to them. It's just one of many examples of their derisive approach to 'white-centered' popular music."

Acuff-Rose presented the affidavit of Ph.D. musicologist Earl V. Speilman. Speilman also examined and compared the two songs and determined that there is "a significant amount of similarity" between them. Speilman identified five specific similarities, including the repetition of the recognizable riff, which "may have actually been sampled or lifted and then incorporated into the recording of 'Pretty Woman' as performed by The 2 Live Crew." Speilman concluded that even a listener without musical training would readily discern that "Pretty Woman" was modelled after "Oh, Pretty Woman."

The district court determined that there were no genuine issues of fact material to the question of fair use in dispute, and that the case was therefore suitable for summary judgment. Acuff-Rose Music, Inc. v. Campbell, 754 F.Supp. 1150, 1153 (M.D.Tenn.1991). The court then analyzed the factors by which an alleged infringing use is tested for fairness under section 107 of the Act. Id. at 1154-59. ⁵

Following the district court's determination that "Pretty Woman" was a parody, Acuff-Rose filed motions to distribute the funds deposited by 2 Live Crew with the Clerk of Court, and sought reconsideration of the fair use determination by introducing additional evidence on the question of the impact of the parody upon the market value of the copyrighted original. ⁶ Based upon its determination of fair use, the district court granted summary judgment and ordered the funds returned to 2 Live Crew.

II.

We review the district court's grant of summary judgment de novo. EEOC v. University of Detroit, 904 F.2d 331, 334 (6th Cir.1990). Summary judgment is appropriate if the non-moving party fails to establish a genuine issue of material fact on an element essential to its case and on which it would bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). In making that determination, we view the evidence in the record in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986).

These general principles apply to the question of fair use, Maxtone-Graham v. Burtchaell, 803 F.2d 1253, 1257-58 (2d Cir.1986), cert. denied, 481 U.S. 1059, 107 S.Ct. 2201, 95 L.Ed.2d 856 (1987), which is a mixed question of law and fact. Mathews Conveyor Co. v. Palmer Bee Co., 135 F.2d 73, 85 (6th Cir.1943); Harper & Row Publishers v. Nation Enter., 471 U.S. 539, 560, 105 S.Ct. 2218, 2230, 85 L.Ed.2d 588 (1985). In reviewing the district court's determination of fair use, when that court has found facts sufficient to evaluate each of the factors enumerated in section 107 of the Copyright Act, we " 'need not remand for further factfinding ... [but] may conclude as a matter of law that [the challenged use] do[es] not qualify as a fair use of the copyrighted work.' " Harper & Row, 471 U.S. at 560, 105 S.Ct. at 2230 (quoting Pacific & S. Co. v. Duncan, 744 F.2d 1490, 1495 (11th Cir.1984)). Our review of the record shows that no material facts are in dispute. The parties dispute the ultimate conclusions to be drawn from the facts. These judgments are legal in nature.

III.

Section 102(a) of the Copyright Act, adopted under the express authority of Art. I, Section 8 of the United States Constitution granting Congress the power to give authors exclusive rights to their writings, protects "musical works, including any accompanying words." 17 U.S.C. § 102(a)(2). Section 106 of the Act grants to the copyright holder a variety of exclusive rights in the copyrighted work, including the right to "reproduce the copyrighted work in...