The first is a Case Application Analysis. It is a look at a specific case, and how it relates to the hypothetical legal scenario I was given to solve.
The second is the Memorandum of Law.
It is a broader discussion of all cases that relate to my dilemma, and how our legal "team" could go about defending our "client" in court.
The third element was the research itself, which spans well over 20 pages, and is, of course, not representative of my own writing. (Merely my citations of other writing.) Thus, I'll spare you the reproduction of that.
The legal subject is "fair use", specifically as it applies to the use of copyrighted music in new creations.
I will contain the "tooting of my own horn" to this: I am very proud of them, and I received the highest grade possible. (And should I go to law school, I will look back on them fondly as I get the academic beat down semester after semester. :-) )
Case Application Analysis-------------------------------------------------------------------------------------------------
Campbell v. Acuff-Rose Music
The appropriation and use of copyrighted material is not automatically presumed to be unfair when such use is for commercial purposes. The fair use doctrine, 17 U.S.C. § 107, creates four factors that courts must consider in deciding if the taking of copyrighted material is fair. The creation of parody is a strong fair use defense. The nature of parody is to conjure up the previous work by using material from it. The parodists then create a new, transformative work that comments on (and typically mocks) the original. Since parodies are recognizably different, courts have argued that they do not usurp market demand for the original, and are protected under fair use.
Acuff-Rose Music, Inc. sued Luke Records (then operating as Skyywalker Records) for copyright infringement in June of 1990. The latter is the record company for a rap group called 2 Live Crew.
In June or July of 1989 (an exact date has not been determined), 2 Live Crew released an album entitled “As Clean As They Wanna Be.” This album included a song called “Pretty Woman.”
Luther Campbell, lead vocalist and song writer for 2 Live Crew, stated via affidavit that this was intended to parody the Ray Orbison and William Dees song “Oh, Pretty Woman.” “Pretty Woman” made obvious use of the melody and bass patterns from “Oh, Pretty Woman.” The credits of the album listed the original song, and gave credit to Orbison, Dees, and their publisher (Acuff-Rose).
Luke Records asked via letter for Acuff-Rose's consent to create this parody. (The parties dispute whether this happened before or after the album's release.) Acuff Rose Music,. Inc. denied this permission . This did not dissuade Luke Records from continuing to sell “As Clean As They Wanna Be.”
In response, Acuff Rose Music, Inc. brought the aforementioned federal lawsuit against Luke Records, in Tennessee District Court.
Is the song “Pretty Woman”, which uses the melody and bass rhythm from “Oh, Pretty Woman”, protected under the fair use doctrine (17 U.S.C. 107) from copyright infringement prosecution?
The United States District Court for the Middle District of Tennessee granted summary judgment in favor of Luke Records. The court recognized “Pretty Woman” as a parody, and held that the defendants had taken only what was necessary to connect the parody to the original. They also determined that “Pretty Woman” criticized the original work. Criticism is explicitly mentioned in the fair use statute [17 U.S.C. 107] as acceptable.
The Court of Appeals reversed the trial court decision. They held that the commercial nature of the “Pretty Woman” parody created a presumption against fair use. And 2 Live Crew, by the appellate court's measure, had taken the “heart” of “Oh, Pretty Woman”, which was too much.
The U.S. Supreme Court granted certiorari. In a unanimous decision, they reversed the Tennessee Appellate Court, siding once more with Luther Campbell and Luke Records. The case was remanded back to the trial court for further action.
The Supreme Court held that the appellate court erred in its reading of Sony Corp. of America v. Universal City Studios, Inc. They gave too much weight to the following line from Sony: “...every use of copyrighted material is presumptively...unfair...” [Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 451 (1984).] But, the Sony opinion did not say that this presumption automatically rules every commercial use as unfair. The appellate court ignored this, deciding that 2 Live Crew's sampling of “Oh, Pretty Woman” was not fair use, because it was for commercial ends. It would be impossible to reconcile this ruling with any other instance of parody. The entire careers of parodists like Weird Al Yankovic would, presumably, be ruled unfair with this precedent. “The statute makes clear that a work's commercial nature is only one element of the first factor enquiry into its purpose and character, and Sony itself called for no hard evidentiary presumption. The Court of Appeals's rule runs counter to Sony and to the long common-law tradition of fair use adjudication.” [Cambpell v. Acuff-Rose Music, 510 U.S. 569 (1994).] This was the first appellate court claim the Supreme Court overruled.
The second element the Supreme Court overruled was the idea that, by taking the “heart” of “Oh, Pretty Woman”, 2 Live Crew had taken too much, and the use was unfair. The very nature of parody requires that enough of the original be sampled in order to connect the two works. “Even if 2 Live Crew's copying of the original's first line of lyrics and characteristic opening bass riff may be said to go to the original's 'heart,' that heart is what most readily conjures up the song for parody, and it is the heart at which parody takes aim. Moreover, 2 Live Crew thereafter departed markedly from the Orbison lyrics and produced otherwise distinctive music.” [Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994).] The court stopped short of deciding whether 2 Live Crew's repeating of the bass line was excessive copying. They remanded that element to the trial court for further consideration.
The Supreme Court also rejected Acuff Rose's argument that 2 Live Crew's request for permission to use “Oh, Pretty Woman” should be weighed against a finding of fair use. “Even if good faith were central to fair use, 2 Live Crew's actions do not necessarily suggest that they believed their version was not fair use; the offer may simply have been made in a good-faith effort to avoid this litigation. If the use is otherwise fair, then no permission need be sought or granted. Thus, being denied permission to use a work does not weigh against a finding of fair use.” [Campbell v. Acuff-Rose Music, 510 U.S. 569, 585 (1994).] The Supreme Court referenced Fisher v. Dees, a case establishing that the law should discount permission in considering fair use. “The parody defense to copyright infringement exists precisely to make possible a use that generally cannot be bought.”[Fisher v. Dees, 794 F.2d 432, 437 (9th Cir. 1986).] The rationale is that courts ought not to punish people who, in good faith, ask for permission, by holding denial of that permission against them. “Even though such gestures are predictably futile, we refuse to discourage them.” [Fisher v. Dees, 794 F.2d 432, 437 (9th Cir. 1986).] And since fair use can legally stand with or without the copyright holder's consent, the courts discard it entirely.
There was one aspect of the case by which the Supreme Court ruled against 2 Live Crew. They ruled that the rap group had not been entitled to the trial court's summary judgment in their favor. 2 Live Crew had offered no affidavit to support their assertion that “Pretty Woman”, as a rap song, would have no detrimental effect on the market demand for “Oh, Pretty Woman”. We can surmise that this is likely, as the two songs are entirely different genres of music. But the Supreme Court held that this question needed to be examined in greater detail than summary judgment had allowed. “If the later work has cognizable substitution effects in protectible markets for derivative works, the law will look beyond the criticism to the work's other elements. 2 Live Crew's song comprises not only parody but also rap music. The absence of evidence or affidavits addressing the effect of 2 Live Crew's song on the derivative market for a nonparody, rap version of 'Oh, Pretty Woman' disentitled 2 Live Crew, as the proponent of the affirmative defense of fair use, to summary judgment.” [Cambpell v. Acuff-Rose Music, 510 U.S. 569 (1994).]
That excerpt is doubly significant because it raises a critical legal question in determining fair use: Does the new work substitute itself in place of the original in the marketplace? Copyright law does not find infringement with a work that discourages demand for another. For example, a negative newspaper review can do that. Rather, copyright law protects against substituting a creative work in a competing one's place. “We do not, of course, suggest that a parody may not harm the market at all, but when a lethal parody, like a scathing theater review, kills demand for the original, it does not produce a harm cognizable under the Copyright Act.” [Cambpell v. Acuff-Rose Music, 510 U.S. 569, 591-92 (1994).] The Supreme Court cited to the Ninth Circuit Court of Appeals, which made the distinction in Fisher v. Dees: “Biting criticism suppresses demand; copyright infringement usurps it.” [Fisher v. Dees, 794 F.2d 432, 438 (9th Cir. 1986).]
The litigation saga of Acuff Rose Music, Inc. and the 2 Live Crew illustrates the difficulty in resolving fair use disputes. Three different courts, with the same laws and facts before them, came up with three different legal opinions. And, the dispute still had not been fully settled with the Supreme Court ruling, as it was remanded back to the trial court. The parties eventually settled out of court, according to Wikipedia.
[Wikipedia, Campbell v. Acuff-Rose Music, Inc., http://en.wikipedia.org/wiki/Campbell_v._Acuff-Rose_Music%2C_Inc., (last accessed July 22, 2008).]
Certainly, the facts of Campbell v. Acuff-Rose Music, Inc. are quite similar to our case with Bart Simpson. 2 Live Crew, like our client, sampled an existing song, and used that sample to create a new musical work. As this case went all the way to the Supreme Court, there is no higher legal authority for us to look for Bart Simpson's defense.
The basic issue of Campbell v. Acuff-Rose Music, Inc. applies here. Is it fair use to appropriate a portion of a copyright protected song, and use it in your own musical work?
Courts arrive at the answer by applying the four factors to be considered from the fair use statute (17 U.S.C. 107). The first factor, the purpose and character of the use, was examined extensively in the Acuff-Rose cases. We can find our first affirmative defense in what the Supreme Court decided. They ruled that the use of copyrighted material for commercial purposes does not always mean that the use is unfair. Judges must still fully analyze the case, based on all the factors from the statute. This helps us with Bart Simpson because it reinforces the point that there can be the no hasty decision here. A court cannot rule against our client without considering all the factors from the fair use statute. This is true, regardless of whether Bart Simpson intends to sell his created song or not.
Our second affirmative defense can be found in the Supreme Court's opinion on permission, and its irrelevance in fair use cases. Their opinion makes clear that denial of permission from the copyright holder should not carry any weight against a finding of fair use. 2 Live Crew did ask for Acuff Rose's consent to use “Oh, Pretty Woman”, and such consent was denied. Bart Simpson did not ask Stevie Wonder if he could use “Golden Girl”. Since Stevie Wonder has sued to prevent this use, we can obviously assume that he does not approve. But, we can point to this case to demonstrate that Stevie Wonder's approval, or lack thereof, for Bart Simpson to use “Golden Girl”, is irrelevant in determining fair use.
Our last affirmative defense can be found in the Supreme Court's holding on the third fair use factor (the amount and substantiality of the portion taken). They ruled that 2 Live Crew's sampling of the entire melody from “Oh, Pretty Woman” was not too much taking to preclude fair use. The obvious correlation is that if it is okay for 2 Live Crew to take that much, then surely Bart Simpson's three second sample is harmless. But, we then run into a qualifier that eliminates this broad claim. Taking the “heart” of “Oh, Pretty Woman” was permissible because it was done in the context of a parody. The Supreme Court's view is that 2 Live Crew took no more than was necessary to conjure up the original song. The nature of parody requires that a connection be made between the parody and the original. As such, what 2 Live Crew did was permissible. If Bart Simpson can demonstrate that his creation is a parody of Stevie Wonder's “Golden Girl”, then this case provides solid legal precedent for his defense. If he has not created a parody, then it is much less helpful.
This question of the nature of Bart Simpson's song brings us to potential arguments from the plaintiff. The best basis for a counter argument is stated in Campbell as follows: “It is uncontested here that 2 Live Crew's song would be an infringement of Acuff-Rose's rights in 'Oh, Pretty Woman,' under the Copyright Act of 1976, but for a finding of fair use through parody.” [Campbell v. Acuff-Rose Music, 510 U.S. 569, 574 (1994).] If Bart Simpson's work is not a parody of “Golden Girl”, then plaintiff can argue that it usurps the market for the original work, and thus violates copyright protection.
The plaintiff may inquire as to how Bart Simpson came in possession of “Golden Girl” in the first place. If, for example, Bart Simpson downloaded the song from the Internet, or acquired it by some other means besides a purchase, then the plaintiff may object to that. That issue is outside the scope of fair use, and certainly not addressed by this particular case. Certainly, it will help our client if he acquired a copy of “Golden Girl” through a purchase or as a gift. But, alleged damages from any piracy of the music on our client's part is an entirely different legal question than fair use.
The plaintiff will almost certainly object to our client using his work without permission. We, fortunately, have already demonstrated that issue to be irrelevant in fair use cases. Stevie Wonder certainly is entitled to take exception to it, but it has no bearing on whether our client's use of “Golden Girl” is fair use.
We have rendered the third objection moot. The second objection, if our client indeed pirated the music, can best be addressed by asking for a separate trial on the matter. If piracy can be alleged against our client, there will likely be factual disputes at hand. Such disputes can only be resolved by a jury. Fair use is a matter of law, and can be resolved by a judge alone.
That brings us back to arguing the nature of Bart Simpson's creative work. This is undoubtedly the most complicated aspect of the case, and by extension, any fair use analysis. The judge must answer the critical question of whether Bart Simpson's song appropriates “Golden Girl”'s place in the music market.
As previously discussed, if the work is a parody, then Campbell grants Bart Simpson a strong legal defense against copyright infringement. Referencing the fair use statute, parody falls under the categories of “criticism” and “comment”. Both are explicitly protected from copyright infringement damages. If Simpson's song is not a parody, we then enter into a substantive analysis of its musical qualities. The judge must determine if it renders itself sufficiently different from “Golden Girl” to be construed as criticizing or commenting on the original. If Bart Simpson has created a song with very similar musical qualities as “Golden Girl”, then it is likely our client will be found guilty of usurping the original's demand. If Simpson's song exists in a different musical genre than the original, that is not much help to us. Without the parody aspect of 2 Live Crew's “Pretty Woman”, the Supreme Court would not have upheld fair use protection (despite the song's differing musical genre from “Oh, Pretty Woman”). Absent the parody defense, we are left to somehow convince a judge that Simpson's work comments or critiques the original, in a manner that renders it noticeably different. We are then relying not on legal precedent, but on our ability to persuade the judge.
The best thing for our client in that circumstance would be to dissuade him from having any designs on selling his “Golden Girl” creation. If we eliminate the intent to sell, we can then raise the defense that Simpson's song is merely for private, personal use. We can look elsewhere for legal precedent on that. But based on the rationale of Campbell v. Acuff-Rose Music, I do not believe that our client, with the intent to sell, can avoid liability for copyright infringement if his song is not a parody.
If Bart Simpson has created a parody of “Golden Girl”, it is likely that he will not be liable for copyright infringement. If his song is not a parody, it is likely a judge will not consider it to be protected under fair use. In that event, he can possibly avoid liability by keeping the song solely for his personal use.
From: Associate: Michael C. Knudsen
Re: Our client: Bart Simpson's liability for copyright infringement.
Our client, Bart Simpson, has been sued by Stevie Wonder for copyright infringement. This memo propounds the legal precedent and rationale for our defense of this lawsuit.
Statement of Facts
Bart Simpson takes snippets of songs (approximately three seconds) and uses them as part of larger song creations. He did this with the Stevie Wonder song “Golden Girl”.
This came to Mr. Wonder's attention, and he has sued Bart Simpson for copyright infringement.
Under federal law, can Stevie Wonder bring an action against Bart Simpson for copyright infringement? Does the short duration of Bart's “Golden Girl” sample (approximately three seconds) allow him to claim that the use of the work is trivial, or de minimis? Can Mr. Wonder allege damages against Mr. Simpson, when Bart has not profited from the sampled song creation? Can Bart successfully defend the creation of his song through the fair use doctrine?
Stevie Wonder can bring legal action against Bart Simpson for copyright infringement. Nothing in law prevents him from doing so. The de minimis principle applies only when the average audience would not recognize the appropriation. [Fisher v. Dees, 794 F.2d 432 (9th Cir. 1986).] Given that Stevie Wonder himself recognized it, de minimis would not likely hold up to judicial scrutiny. There is strong precedent that defends Bart Simpson's right to create this work for his own private use. An example is Sony Corp. of America v. Universal City Studios, Inc., which held that private home recordings of television shows did not violate copyright law. [Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984).] The Copyright Act of 1976 created four factors for courts to consider in deciding if the fair use doctrine applies to a particular case. If Bart Simpson has created a parody of “Golden Girl”, Campbell v. Acuff-Rose Music sets a strong precedent for protecting his work as fair use. But if it is not a parody, Campbell sets an equally strong precedent to find him liable for copyright infringement, if he intends to sell his creation. [Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994).]
Let's begin with a discussion of “de minimis”. Black's Law Dictionary defines it as something “so insignificant that a court may overlook it in deciding an issue or case.” [Black's Law Dictionary 361(Bryan A. Garner ed., 8th ed., West 2004).] On the face of it, Bart's taking of a mere three seconds of Stevie Wonder's “Golden Girl” seems trivial. But, we find a clear definition of de minimis as applied to musical works in Fisher v. Dees. “As a rule, a taking is considered de minimis only if it is so meager and fragmentary that the average audience would not recognize the appropriation.” [Fisher v. Dees, 794 F.2d 432 (9th Cir. 1986).] Since Stevie Wonder himself has already recognized the taking of his music, we know that at least one person sees the reference. We could, in theory, play the song for an actual audience, and see if they recognize it. This is an unlikely and risky avenue of defense. It leads us into ambiguous areas. What constitutes an “average” audience? How many of them need to successfully identify “Golden Girl” to eliminate de minimis as a defense? Furthermore, if one audience does not perceive the sample, it is not out of the question that another crowd will. There are far better legal arguments at our disposal than de minimis.
The Copyright Act of 1976 took the principle of” fair use” (which up until then existed in common law) and codified it in federal statute. The statute, 17 U.S.C. 107, creates four factors that courts must consider in determining if a creative work qualifies as fair use.
These are as follows:
1) the purpose and character of the use, 2) the nature of the copyrighted work, 3) the amount and substantiality of the portion taken 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 original.
In considering “purpose and character”, what does the first factor of the statute mean? First, it asks courts to consider “whether such use is of a commercial nature or is for nonprofit educational purposes.” The Supreme Court in Sony Corp. of America v. Universal Studios, Inc. held that “...every commercial use of copyrighted material is presumptively an unfair exploitation of the monopoly privilege that belongs to the owner of the copyright...” [Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 451 (1984).] But, this presumption can be overcome. The statute explicitly lists the following uses of creative material as fair use: criticism, comment, news reporting, teaching, scholarship, or research. For our purposes, let's focus on the first two.
A parody of a musical work restates the original melody, and then alters the song in some fashion (usually to humorous or mocking effect). Courts have ruled that parodies fall under these protected categories of “criticism” and “comment”, because they make themselves distinctly different from the songs they reference. The Supreme Court in Campbell v. Acuff-Rose Musicruled that the use of copyrighted material for commercial purposes, in the creation of a parody, is not unfair. “Parody, like other comment and criticism, may claim fair use.” [Cambpell v. Acuff-Rose Music, 510 U.S. 569 (1994).] Thus, the first factor creates a legal basis for Bart Simpson's defense, if he has indeed created a parody of “Golden Girl”. It establishes Bart Simpson's right, under fair use, to sell and market the song as a parody.
The second factor, “the nature of the copyrighted work”, means little to us in this case. The language literally tells courts to consider what the creative work in the dispute is. As the Supreme Court wrote in Campbell: “This factor calls for recognition that some works are closer to the core of intended copyright protection than others, with the consequence that fair use is more difficult to establish when the former works are copied.” [Cambpell v. Acuff-Rose Music, 510 U.S. 569, 586 (1994).] They went on to state that the factor was “not much help in this case, or ever likely to help much in separating the fair use sheep from the infringing goats in a parody case, since parodies almost invariably copy publicly known, expressive works.” [Cambpell v. Acuff-Rose Music, 510 U.S. 569, 586 (1994).] Whether or not Bart Simpson has created a parody, he has certainly copied a publicly known, expressive work. Having determined this, the second factor is no help in determining if our client is protected under fair use.
The third factor, “the amount and substantiality of the portion used”, gives us another element to a parody defense for Bart Simpson. The Supreme Court in Campbell ruled that 2 Live Crew's sampling and re-use of the melody from “Oh, Pretty Woman”was not unfair, again in the context of parody. “Even if 2 Live Crew's copying of the original's first line of lyrics and characteristic opening bass riff may be said to go to the original's 'heart,' that heart is what most readily conjures up the song for parody, and it is the heart at which parody takes aim.” [Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994).] With this precedent, if Bart Simpson has parodied “Golden Girl”, then there can be little doubt that his three second sample is fair use
The fourth and final factor, “the effect on the market demand for the original”, can also be strongly defended in parody cases. Turning once again to Campbell v. Acuff-Rose Music, the Supreme Court wrote as follows: “But when, ...the second use is transformative, market substitution is at least less certain, and market harm may not be so readily inferred. Indeed, as to parody pure and simple, it is more likely that the new work will not affect the market for the original in a way cognizable under this factor, that is, by acting as a substitute for it...” [Campbell v. Acuff-Rose Music, 510 U.S. 569, 588 (1994).] The question is not whether the new work discourages demand for the original, but whether it substitutes itself in place of its predecessor. This critical distinction was established by the Ninth Circuit Court of Appeals in Fisher v. Dees. “Biting criticism suppresses demand; copyright infringement usurps it.” [Fisher v. Dees, 794 F.2d 432, 438 (9th Cir. 1986).] So, if Bart Simpson's song is a parody, it is not substituting itself in place of “Golden Girl”, and thus is protected under fair use.
One more defense worth mentioning is that the issue of permission from the copyright holder is irrelevant in fair use cases. The fact that Stevie Wonder did not consent to Bart Simpson's use of his music does not weigh against a finding of fair use. This was established in Fisher v. Dees, and affirmed again in Campbell v. Acuff-Rose Music. “If the use is otherwise fair, then no permission need be sought or granted. Thus, being denied permission to use a work does not weigh against a finding of fair use.” [Campbell v. Acuff-Rose Music, 510 U.S. 569, 585 (1994).] Stevie Wonder will likely raise the issue, but it does not hurt our client's defense.
Now, if Bart Simpson's song that samples “Golden Girl” is not a parody, where does that leave us? We will then have a far more difficult task in defending his right to produce and sell the creation. Campbell v. Acuff-Rose Music explicitly stated that, absent the parody defense, 2 Live Crew would have been guilty of infringing copyright protection. “It is uncontested here that 2 Live Crew's song would be an infringement of Acuff-Rose's rights in 'Oh, Pretty Woman,' under the Copyright Act of 1976, but for a finding of fair use through parody.” [Campbell v. Acuff-Rose Music, 510 U.S. 569, 574 (1994).] This would become, of course, a powerful tool of persuasion at our opponent's disposal. We have ruled out the de minimis defense. Thus, we are left to argue that Bart's three-second sample is so less significant than the taking of an entire melody as to render it incomparable to the facts of Campbell. Furthermore, we would enter into a complex analysis of Bart Simpson's song. We would need to convince a judge that it is so different from “Golden Girl” as to render it harmless from a market standpoint. We would be relying not on a legal basis for Bart Simpson's defense, but on the judge's subjective opinion. This is, obviously, a precarious defense.
If Bart Simpson has not created a parody, then it would vastly improve his legal defense if he abandons any desire to sell his created work. In that event, we can look to Sony Corp. of America v. Universal Studios, Inc. to defend his right to create music for personal use. “A challenge to a noncommercial use of a copyrighted work requires proof either that the particular use is harmful, or that if it should become widespread, it would adversely affect the potential market for the copyrighted work.” [Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 451 (1984).] This requires us to demonstrate that Bart's song for his personal use will not harm “Golden Girl"'s market. While it would seem to be an easy task, the wording of Sony creates some challenge for us. “What is necessary is a showing by a preponderance of the evidence that some meaningful likelihood of future harm exists.” [Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 451 (1984).] This is the lowest “burden of proof” standard in law for our opponent to overcome. Given the fact that the likelihood must be “meaningful”, I am confident that our side can prevail in such an argument. Our opponent might speculate that Bart intends to surreptitiously spread his song about, perhaps through the Internet. But I, for one, do not regard speculation as meaningful.
We have a strong defense for our client if he has created a parody of Stevie Wonder's “Golden Girl”. The court will likely absolve him from copyright infringement liability, via fair use. If he has not created a parody, then our best action is to counsel him against selling his created song. We can defend him on the basis that his song is purely for personal use.