Parody opens the door - US Supreme Court decision expands opportunities for dance schools to use copyrighted music

Dance Magazine, July, 1994 by Howard E. Goldfuss

As every teacher knows, a license fee is required from ASCAP or BMI for classroom and performance use of copyrighted music. New court decisions, however, indicate that the use of parody may be a no-fee solution.

Recently, the United States Supreme Court handed down a decision that could have a dramatic effect on the continuing controversy among dance schools, ASCAP, and BMI. In deciding Campbell v. Acuff-Rose, the court opened a door that could be helpful to dance schools because it adds a dimension that, until now, had not been available to them.

A loophole - "fair use" - has always existed in the Copyright Law of 1976. "Fair use" of the original work is exempt from all copyright infringement claims and is defined as "purposes such as criticisms, comment, news reporting, teaching, scholarship, or research."

However, there has always been some question as to whether the teaching exemption applied to dance teachers. Unfortunately, the issue has never been resolved because no class action was ever brought that could lead to a judicial determination of whether dance teachers may be protected. The Campbell v. Acuff-Rose decision, however, may be a significant advantage to dance schools because it adds parody to the "fair use" exemption.

One dictionary defines a parody as "a literary or musical work in which the style of an author or work is closely imitated for comic effect or in ridicule." The Supreme Court also saw parody as providing "social benefit, by shedding light on an earlier work, creating a new one." This does not mean that every work mimicking the original is necessarily a parody that would exempt the mimic from copyright liability. The Court made it clear that each case would be decided on its own merits: The issue is whether the copied work did indeed fall into the category of parody as defined by the Supreme Court.

What did the Court mean in the Campbell v. Acuff-Rose decision? The controversial rap group 2 Live Crew decided to do its own version of "Pretty Woman," the Roy Orbison hit that was featured in the movie of the same name. The group requested permission from Acuff-Rose, the company that owned the rights, to do so. Acuff-Rose refused. Despite the refusal, 2 Live Crew recorded it in a bawdy version that tells of a man who longs for the attention of a woman walking down the street. In their parody she becomes "big hairy woman," "old hairy woman," and "two-timin' woman."

After copying the first lines, 2 Live Crew made a sharp departure from the Orbison lyrics. In addition, it produced "distinctive sounds, interposing scraper noise, overlaying the music with solos in different keys, and alternating the drumbeat." The Court's message was that when you create a parody, make sure that it is substantial, both in music and lyrics. Change the rhythm, change the beat, change the words, make it an original work, and you may be protected from copyright infringement claims. One more thing: It must be a "commentary or critique on the original work."

Although 2 Live Crew has won the battle, it has not won the war. What the Supreme Court did in this decision was to send the case back to the District Court to determine whether the Crew's "Pretty Woman" was indeed a parody under the Court's guidelines. Should the District Court make that finding, 2 Live Crew will not be liable for damages.

How does this affect dance schools? Let's create a scenario where some talented person involved with your school writes a parody of a previously copyrighted hit. To fall within the guidelines, it must differ from the original lyrics markedly, and must be substantially different in the way the music is presented. But it also must have a purpose that is not exclusively commercial. It must express a thought, a comment, a satire, or a social message.

Let us suppose you then use this parody in your classroom or rehearsal with the intention of using it in performance. Without doubt, an ASCAP or BMI representative will claim that it isn't a parody and demand a royalty payment. Now, however, you are in a position to say: "The Supreme Court rules on this. If it's not a parody, we're liable. If it is, we owe you nothing. Let a court decide."

ASCAP or BMI may take the position that even though royalty rights are not protected by the parody, performance rights are. There are two counter arguments to this. The first is obvious: using a parody as a teaching aid is not a performance of the work. The second argument is more complex but equally persuasive. Justice David H. Souter, writing for a unanimous Court, put it as succinctly as possible when he said that there is value in parody because "it can provide social benefit by shedding light on an earlier work and in the process creating a new one (emphasis added).

Of the several entertainment lawyers with whom I discussed this decision almost all agree that if it is, by Judge Souter's definition, a new work, then the writer of the parody would not be liable for any derivative benefits, including performance rights.