A judicial laughing matter - 2 Live Crew takes song parody case to U.S. Supreme Court - Column

Insight on the News, Dec 13, 1993 by Bill Strauss, Elaina Newport

Pretty woman, walkin' down the street...

Imagine if, in your world, "pretty women"--prostitutes--didn't live a life like that depicted in the Julia Roberts movie. You might spoof the idea that prostitution is "pretty" by writing a song about the dangerous, dirty world of sex-for-hire. You might do that by parodying the Roy Orbison song used in the movie -- turning "pretty woman" into "hairy woman."

If you did that, you's be squarely within the centuries-old American tradition of borrowing pop culture tunes to make social criticism. And you might find yourself, as has the rap group 2 Live Crew, in the U.S. Supreme Court.

Was the song owner looking for a royalty? No. The Crew had offered to pay for the use of the underlying melody, but Acuff-Rose Music, the company that owns Orbison's song, flatly refused them permission. The rappers went ahead with their parody anyway and got sued. They won in federal District Court, lost in the U.S. Court of Appeals for the 6th Circuit, and -- after we (who are affiliated with the Washington-area satire troupe Capitol Steps) and parodist Mark Russell joined as amici curiae--presented their case to the Supreme Court, which agreed to hear the case.

This case is a hard one for two reasons. First, Congress created a four-part "fair use" test that has not been easy for courts to apply. Second, the fairest solution to this whole song parody question requires legislative, not judicial, action. Any humorist or critic should have the right to sell a song parody without permission--and we, for one, would certainly be willing to pay some sort of standard royalty in return. But right now song parodists don't have that option.

Suppose that, instead of parodying "Oh, Pretty Woman," 2 Live Crew had made an ugly "cover" of the original --that is, using the existing lyrics but with enough snide sarcasm, hideous sound effects and just plain bad singing to produce something very mean and nasty. No doubt Orbison's heirs would despise what these nasty-as-they-wanna-be rappers might do to the romantic flavor of the original, but as long as the Crew paid the compulsory license fee of roughly 6 cents per record sold, the rappers would have an absolute right to use that song, In this case, with an album that sold 250,000 copies, the royalty would amount to $15,000--and nobody could sue anybody, as long as the royalty check cleared.

But what we and other political parodists find is that if song owners have the chance to say no, they will do exactly that. Some years ago, when the Capitol Steps were laying plans for a half-hour network TV show, we tried to obtain permission to broadcast parodies of seven songs. After a month of haggling, we were denied permission for six of the seven and the show idea was canceled. Other satire troupes have had similar experiences.

Why do song owners reflexively turn satirists down when we ask permission? The problem is that getting somebody to agree to a set of political lyrics puts them in the awkward position of implicitly endorsing those lyrics. We once asked an organizer of Live Aid if he could help us get permission to twist "We Are the World" into "We Arm the World." He told us he couldn't imagine anybody would care that much if we did, but if we formally asked, we'd be told no.

Even the most market-oriented jurist has to realize that, when it comes to social and political parodies, there is market failure here. Sure, in theory the Capitol Steps and Russell could negotiate prices with song owners many of whom are committees of legatees, foreign corporations or individuals (such as Michael Jackson) who have compile d huge libraries by buying other people's songs. The bottom line would be that the delay, cost and grief would probably make us forget about using parodies. And the threat of expensive legal hassles would be on the minds of everybody from the Gridiron Club to the Harvard Lampoon.

So What harm would befall the world if political satirists couldn't borrow tunes to make jokes? Make no mistakes: Laughs would be lost. One of the humorist's great tools is to take two unrelated elements of the pop culture and overlay them to comic effect. Bill Clinton as Elvis. The attorney general as "the middle-aged lady named Janet Reno," sung to the tune of "The Little Old Lady from Pasadena." Without parodies, we'd lose a key creative tool. Instead of singing "All I Want for Christmas Is a Tax Increase" (the title cut our new album), we'd be left with "Taxes Are Sure Going Up This Year." Or something.

A political parody does nobody any harm (and, in fact, one can argue that a good laugh does most of us, song owners included, some good). Does it supplant the market for the original song, say by making people buy the parody instead of the original? Hardly. If you want a song for listening or dancing you'll buy the original--and if you want a laugh, you'll buy the parody. Does it impair the market for the original? To the contrary. The existence of funny parodies helps keep old melodies alive and whets the public appetite for other derivative uses of old songs. Look at what's actually happening in the market, and you'll see how the past decade's surge in political parodies has been accompanied by --and maybe even helped trigger--a similar surge of parody ads, which have been very lucrative for song owners.