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25 Years After: Campbell v. Acuff-Rose and the State of Copyright Fair-Use Controversies
On March 7, 1994, the U.S. Supreme Court decided for the first time that a parody may be a copyright fair use. In the 25 years that followed, the High Court's unanimous 9-0 ruling in Campbell v. Acuff-Rose Inc., 510 U.S. 569 (1994), has been cited in more than 500 court decisions.
But the Supreme Court's pronouncement left questions and controversies in its wake. These have included: criticism of the widespread judicial embrace of Campbell's emphasis on "transformative" in deciding fair use cases; distinctions between fair or license-required-derivative uses; the drafting of jury instructions; how courts handle the way fair use is raised; and attorney fee awards in fair use disputes.
Historical Background
The Campbell litigation arose out of the 2 Live Crew's unauthorized rap version of Roy Orbison's rock classic "Oh, Pretty Woman." Cases involving rock music had been to the U.S. Supreme Court before. In one, the Supreme Court denied punitive damages to the promoter of a summer concert series in Newport, RI, who sued after the city council canceled a concert for fear that the jazz-rock band Blood, Sweat and Tears would attract a rowdy crowd. Newport v. Fact Concerts Inc., 453 U.S. 247 (1981). In another case, the Supreme Court held that the City of New York could control overall concert volume levels in Central Park so long as the sound engineer the city hired deferred to artists about how vocals and instruments were mixed within that sound level. Ward v. Rock Against Racism, 491 U.S. 781 (1989).
The 2 Live Crew case, however, marked the first time rap music reached the nation's highest tribunal. In typical fashion, the court chose to hear a case with consequences that reached far beyond the litigants themselves. "There's an important First Amendment issue here," said Bruce Rogow, who argued the case for the 2 Live Crew. "If you don't give parody room to breathe, creativity will be stifled."
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