Acuff-Rose Music, Inc. v. Campbell

• Decision Date: 14 January 1991
• Docket Number: No. 3:90-0524.,3:90-0524.
• Citation: 754 F. Supp. 1150
• Parties: ACUFF-ROSE MUSIC, INC. v. Luther R. CAMPBELL a/k/a Luke Skyywalker, Christopher Wongwon a/k/a Fresh Kid Ice, Mark Ross a/k/a Brother Marquis, Davis Hobbs a/k/a Mr. Mixx, p/k/a The 2 Live Crew and Luke Skyywalker Records.
• Court: U.S. District Court — Middle District of Tennessee

754 F. Supp. 1150

ACUFF-ROSE MUSIC, INC. v. Luther R. CAMPBELL a/k/a Luke Skyywalker, Christopher Wongwon a/k/a Fresh Kid Ice, Mark Ross a/k/a Brother Marquis, Davis Hobbs a/k/a Mr. Mixx, p/k/a The 2 Live Crew and Luke Skyywalker Records.

No. 3:90-0524.

United States District Court, M.D. Tennessee, Nashville Division.

January 14, 1991.

Alan L. Marx, E. Andrew Norwood, Elizabeth B. Marney, F. Casey Del Casino, King & Ballow, Nashville, Tenn., for plaintiff.

Alan Mark Turk, Sanford R. Ross, Nashville, for defendants.

MEMORANDUM

WISEMAN, Chief Judge.

This case involves a claim by Acuff-Rose Music, Inc. ("Acuff-Rose") for copyright infringement of its song, "Oh, Pretty Woman." Acuff-Rose has named as defendants the members of the rap group 2 Live Crew and Luke Skyywalker Records. The plaintiff contends that the defendants unfairly are trying to cash in on the popularity of "Oh, Pretty Woman."

For the reasons stated below, the Court finds that no genuine issue of material fact exists regarding the allegation of copyright infringement. This claim is dismissed pursuant to Fed.R.Civ.P. 56. The plaintiff's pendent tort claims are preempted by 17 U.S.C. § 301.

I.

This copyright case involves Roy Orbison's musical hit "Oh, Pretty Woman" as recorded by 2 Live Crew. Roy Orbison and William Dees co-authored "Oh, Pretty Woman" in 1964 and assigned their rights in the song to Acuff-Rose Music the same year. "Oh, Pretty Woman" was copyrighted by Acuff-Rose in 1964. Since then the song has continued to generate profits for Acuff-Rose.

On July 5, 1989, 2 Live Crew's manager, Linda Fine, wrote Gary Teifer of Opryland U.S.A., Inc. and Acuff-Rose. Fine informed Teifer that 2 Live Crew was going to parody "Oh, Pretty Woman," that Orbison and Dees would receive full credit as owners and authors, and that 2 Live Crew would pay Acuff-Rose the statutorily required rate for use of the song. Teifer responded on July 17, denying the license request and informing Fine that "we cannot permit the use of a parody of `Oh, Pretty Woman.'"

On July 15, 1989, 2 Live Crew released its version of "Oh, Pretty Woman" on record albums, tapes and compact discs, entitled "As Clean As They Wanna Be." The release, called "Pretty Woman," is on side B, sandwiched between "Me So Horny" and "My Seven Bizzos." Both the compact disc cover and compact disc itself acknowledge Orbison and Dees as the authors of "Oh, Pretty Woman" and Acuff-Rose as the publisher.

Almost one year later, on June 18, 1990, Acuff-Rose sued 2 Live Crew and their record company, Luke Skyywalker Records, for copyright infringement, interference with business relations, and interference with prospective business advantage for the performance and distribution of a copy of "Oh, Pretty Woman." Acuff-Rose contends that the lyrics of "Oh, Pretty Woman" as sung by 2 Live Crew "are not consistent with good taste or would disparage the future value of the copyright." Moreover, Acuff-Rose charges that 2 Live Crew's music is substantially similar in melody to "Oh, Pretty Woman" and the lyrics of the first verse are substantially similar to that of the original version. In response, defendants have moved for summary judgment. They argue that "Pretty Woman" is a parody that constitutes fair use under 17 U.S.C. § 107 of the Copyright Act, 17 U.S.C. §§ 101-914 (1982). They also argue that the two tort claims are preempted by 17 U.S.C. § 301. Pursuant to Fed.R.Civ.P. 67, 2 Live Crew has deposited with the Court the $13,867 it maintains is due to Acuff-Rose for use of its song as required by the Copyright Act. This decision does not address whether that sum reflects adequate compliance with the Act.

The resolution of this motion presents two questions for the Court to address: first, whether "Pretty Woman" constitutes fair use of copyrighted material pursuant to 17 U.S.C. § 107; and second, whether the plaintiff's state law claims are preempted by federal copyright law.

II.

A. Standard of review

Summary judgment is appropriate only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986); Street v. J.C. Bradford & Co., 886 F.2d 1472, 1476-80 (6th Cir.1989). The party seeking summary judgment bears the initial burden of showing the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323, 106 S.Ct. at 2552. In responding to a motion for summary judgment, the nonmoving party cannot rest on its pleadings, but must present some "specific facts showing that there is a genuine issue for trial." Id. at 324, 106 S.Ct. at 2553.

The Supreme Court concluded in Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), that a dispute about a material fact is "genuine" within the meaning of Fed.R. Civ.P. 56 only if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." 477 U.S. at 248, 106 S.Ct. at 2510. "The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient." Id. at 252, 106 S.Ct. at 2512. Of course, the court is to construe the evidence and all inferences to be drawn from it in the light most favorable to the nonmoving party. Id. at 255, 106 S.Ct. at 2513-14.

B. Fair Use

To foster the widespread dissemination of ideas, the copyright system is "designed to assure contributors to the store of knowledge a fair return for their labors." Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 546, 105 S.Ct. 2218, 2223, 85 L.Ed.2d 588 (1985). See Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 429, 104 S.Ct. 774, 782, 78 L.Ed.2d 574 (1984) (purpose of copyright is to create incentives for creative effort). Notwithstanding the monopoly granted to the owner, fair use has been defined as the "privilege in others than the owner of a copyright to use the copyrighted material in a reasonable manner without his consent." Harper & Row, 471 U.S. at 549, 105 S.Ct. at 2224 (quoting H. Ball, Law of Copyright and Literary Property, 260 (1944)).

Section 107 of the Copyright Act instructs courts to balance the following four factors:

In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

At a minimum, courts have indicated that evaluation of these four factors is required. But they are not exclusive. Harper & Row, 471 U.S. at 560, 105 S.Ct. at 2230; Pacific & Southern Co., Inc., v. Duncan, 744 F.2d 1490, 1495 n. 7 (11th Cir.1984), cert. denied, 471 U.S. 1004, 105 S.Ct. 1867, 85 L.Ed.2d 161 (1985).

Before the court may move to the merits of the statutory fair use analysis, it must consider whether this case is suitable for summary judgment. Plaintiffs allege that a number of material issues of fact remain. "Fair use is a mixed question of law and fact." Harper & Row, 471 U.S. at 560, 105 S.Ct. at 2230 (quoting Pacific & Southern Co., 744 F.2d at 1495 n. 8). "Where the district court has found facts sufficient to evaluate each of the statutory factors, an appellate court `need not remand for further factfinding ... but may conclude as a matter of law that the challenged use does not qualify as a fair use of the copyright work.'" Id. Based on the evidence presented by the parties in this case, including copies of the songs, correspondence and affidavits, whether defendant's parody constitutes fair use under 17 U.S.C. § 107 is a question of law for the Court to determine. See Fisher v. Dees, 794 F.2d 432, 436 (9th Cir.1986) (although discovery not commenced, since "parties dispute only the ultimate conclusions to be drawn from the admitted facts ... we can make them without usurping the function of the jury").

Since no genuine material issues of fact remain, the Court will proceed to address the four factors cited by § 107.¹ 1. Purpose and Character of the Use. The first factor the Court must consider is the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes. As examples of fair use, the preamble of § 107 lists "criticism, comment, news reporting, teaching ... scholarship, and ... research." 17 U.S.C. § 107. Congress has listed parody as one of those activities that might qualify for the fair use exception. See H.R.Rep. No. 1476, 94th Cong., 2d Sess., 65 (1976), reprinted in 1976 U.S.Code Cong. & Admin. News 5659, 5680. Obviously, 2 Live Crew's song is included on a commercially distributed record album sold for the purpose of making a profit.

Although 2 Live Crew's primary goal in releasing "As Clean As They Wanna Be" is to sell its music, that finding "does not necessarily negate a fair use determination...." 3 M. Nimmer, Nimmer on Copyright, § 13.05A at 13-70 (1990). In Harper & Row, the Court stated that a commercial purpose merely "tends to weigh against a finding of fair use." Harper & Row, 471 U.S. at 562, 105 S.Ct. at 2231. "The crux of the profit/nonprofit distinction is not whether the sole motive of the use is monetary gain but whether the user stands to profit from exploitation of the copyrighted material without paying the customary price." Id.

Importantly for the purposes of this case, it is plain that 2 Live Crew also desired to parody the original version of "Oh, Pretty Woman."² In copyright law, courts have long recognized that satirical expression is "deserving of substantial freedom — both as entertainment and as a form of social and literary criticism." Berlin v. E.C. Publications,...