And that’s the way it was: March 7, 1994

The Supreme Court rules that parody is protected under fair use

On this day 19 years ago, the Supreme Court ruled that “Pretty Woman”—2 Live Crew’s parody of the classic “Oh, Pretty Woman”—could very well qualify* as fair use under copyright law. The court’s justices unanimously came down in favor in of 2 Live Crew, and their decision confirmed the right of parodists to sell their riffs, in good taste or bad, on copyrighted work.

Perhaps best known for the song “Me So Horny,” 2 Live Crew released “Pretty Woman” in 1989, as part of As Clean As They Wanna Be, a cleaned-up version of their album As Nasty As They Wanna Be. (The explicit version of the album had its own troubles—a judge ruled it legally obscene, and members of the group were arrested for performing material from it, before an appeals court overturned the obscenity decision.) 2 Live Crew’s management alerted Acuff-Rose, Inc., which owned the copyright to Roy Orbison’s “Oh, Pretty Woman,” that the group intended to release a parody of the song and offered to pay for using bits of the original. Acuff-Rose shot down the idea entirely and, when 2 Live Crew released the song anyway, took the group to court.

2 Live Crew’s “Pretty Woman” lifted the distinctive bass line from the Orbison original but made notable changes to the song, not the least of which were the lyrics. Here are the two versions side-by-side, and here’s a verse from the 2 Live Crew version:

Big hairy woman you need to shave that stuff
Big hairy woman you know I bet it’s tough
Big hairy woman all that hair it ain’t legit
‘Cause you look like ‘Cousin Itt’
Big hairy woman

2 Live Crew won the first round of legal battles, but an appeals court ruled against them, arguing that because the group recorded its version for commercial purposes, its parody could never be fair use.

But the Supreme Court disagreed. Copyright law sets out four factors that can determine if a work counts as fair use: the nature of the original work, how much of it is used, the character of the new work, and the impact it will have on the market for the original work. The justices wrote that all four must “be explored, and the results weighed together.”

In this case, the most influential factor was the character of the new work—its status as a parody. To shore up a case for fair use, the new work must add, Justice Souter wrote in the court’s opinion, “something new, with a further purpose or different character, alternating the first with new expression, meaning, or message.” And the court found that 2 Live Crew’s “Pretty Woman” did comment on and criticize the original enough to tweak its message.

“2 Live Crew juxtaposes the romantic musings of a man whose fantasy comes true, with degrading taunts, a bawdy demand for sex, and a sigh of relief from paternal responsibility,” Justice Souter wrote. “The later words can be taken as a comment on the naiveté of the original of an earlier day, as a rejection of its sentiment that ignores the ugliness of street life and the debasement that it signifies.”

*Correction: This article originally stated that the Supreme Court ruled that “Pretty Woman” qualified as fair use under copyright law; the court actually left that question for a lower court to decide.

Disclosure: CJR has received funding from the Motion Picture Association of America (MPAA) to cover intellectual-property issues, but the organization has no influence on the content.

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Sarah Laskow is a writer and editor in New York City. Her work has appeared in print and online in Grist, Good, The American Prospect, Salon, The New Republic, and other publications. Tags: , , , , ,