Wednesday, May 05, 2010


This article originally appeared in the 5.6.10 issue of Metroland

Over 15 years ago, in the landmark decision Campbell v. Acuff Rose, the Supreme Court kicked down the door for the development of a modern concept of fair use of copyrighted works. The case involved the hideous hip hop group 2 Live Crew’s hastily thrown together version of “Oh Pretty Woman”, which appeared on their album “As Clean As They Wanna Be”, the Wal-Mart non-stickered version of their multi-platinum album “As Nasty As They Wanna Be.”

2 Live Crew had asked for permission to release a version of the song with the lyrics changed, Roy Orbison’s publishing company said no, and 2 Live Crew went ahead and released the track anyway. Lawsuits and hilarity ensued.

The Court ruled that 2 Live Crew’s version was a parody of the original, and therefore a fair use that didn’t require permission or a license or payment to Roy Orbison. The entertaining decision by Justice David Souter is the first (and still the only) Supreme Court decision to include the word “riff”, may it fo-shizzle the court, yo.

Parody! Here’s a taste of 2 Live Crew’s “parodic” lyrics, which were included in the Court’s decision:

Bald headed woman you know your hair could look nice
Bald headed woman first you got to roll it with rice
Bald headed woman here, let me get this hunk of biz for ya
Ya know what I'm saying you look better than rice a roni

Mencken they’re not. Nonetheless, Justice Souter found that 2 Live Crew’s version was indeed a parody of the original, explaining thusly:

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. The later words can be taken as a comment on the naivete 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.

Um-hmm. Whatever! This ruling has always struck me as particularly thin; to the extent the members of 2 Live Crew were thinking about anything (other than their dicks) while “composing” this masterpiece, I’m not sure they were focusing on a commentary of either Roy Orbison or his hit song. But putting the facts of the case aside, this decision literally laid down the law of fair use, and paved the way for a progression of subsequent decisions that clarified a liberalized understanding of how existing copyrighted works may be reused and reconstituted. Campbell led the way for courts’ legitimizing of many types of appropriation art, which many consider to be the most significant art movement of last hundred years. Campbell’s a heavy decision indeed.

And Campbell’s being looked at again right now. Seems Californian tea-bag Senatorial candidate Chuck DeVore has aimed a couple of attack ads at rival Barbara Boxer using altered-lyric versions of Don Henley’s “Boys of Summer” and “All She Wants to Do is Dance.” Don Henley’s not happy, and has gone after DeVore will all his legal guns blazing.

What makes this different from the usual Republican practice of pilfering cool songs for campaign props is the changed lyrics—DeVore is claiming that he’s in part making fun of Henley’s liberal politics in the ads, so that fair use protects him pursuant to the Campbell decision.

I can’t seem to find DeVore’s ads on the web, surprisingly, but all reports are that they are really lame. (“All She Wants To Do is Tax”? Oh, hardee har-har-har!) Which of course isn’t the point. Some commentators have pointed out that DeVore’s claim that he’s making fun of Henley is an absurd post-hoc rationale that arose only after Henley sued him. Henley, for his part, points out that he’s not really a liberal at all, and that he sometimes agrees with John McCain! Dude!

All the parties’ papers are submitted and there will be a hearing before the judge in early June. You can find out a lot more about the case, with very insightful analysis, at Ben Sheffner’s excellent blog Copyrights and Campaigns, located at

Oh, I just don’t know about this. On one hand, the broader the fair use finding, if the court agrees with DeVore here, the better for the arts and artists in the remix / appropriation world. But, sheesh, I hate seeing a tea-bag moron win anything, you know? It’s a conundrum! And doesn't it seem rather odd that using Henley’s full song would be infringement, but lamely changing a few words makes it OK? But then, if you accept that 2 Live Crew was parodying Roy Orbison, it’s pretty hard to find that DeVore’s not parodying Henley. Damn.

There is the possibility that the court could dodge the fair-use question altogether and rule on some alternative theory, like Henley’s unfair business practice claim that DeVore is wrongly portraying Henley as supporting DeVore.

It’s an interesting case with interesting issues and interesting personalities. I’ll keep you poste


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