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Ruling Allowing Parodies Shocks Many Music Execs

March 09, 1994|CHUCK PHILIPS | SPECIAL TO THE TIMES

Top music industry executives were stunned by a U.S. Supreme Court ruling on Monday that allows musicians to parody artistic works for profit with little fear of copyright infringement suits.

"I'm astonished," said Martin Bandier, chairman of EMI Music Publishing, which controls copyrights for hundreds of thousands of songs including the music of John Lennon and Paul McCartney.

"This ruling strips musical authors, composers and songwriters of valuable property rights, elevating free speech to an absurd level."

Les Bider, chairman of Warner Chappell, the giant music publishing arm of Time Warner, which controls copyrights for such artists as Elton John and Prince, also expressed disappointment over the ruling involving the rap group 2 Live Crew's parody of the Roy Orbison hit "Oh, Pretty Woman."

"No one should be allowed to make money by copying another artist's hard work," he said. "It's just not what the concept of fair use is about. When a song is copied for commercial use, publishers and composers should be compensated for it."

Legal experts said Monday's ruling sends a signal to parodists that fair use no longer applies merely to spoofs performed live one-time only, but to comedic tunes recorded on best-selling albums that generate huge profits.

Although artists may still be liable to pay royalties if too much of the original is used, composers can no longer hope to stop a legitimate parody, experts said.

The ruling stems from a 1990 lawsuit filed by Nashville publishers Acuff-Rose against the 2 Live Crew for recording a raunchy take-off of "Oh, Pretty Woman."

Acuff-Rose refused the Miami rap group permission to record the song and initiated legal action when the group recorded it anyway, charging the group's "vulgar" treatment of the composition tarnished the value of the 1964 composition. The publishing firm won a ruling from the U.S. Court of Appeals in Cincinnati.

Monday's reversal marked the first time the court has spoken directly on how a parody is to be treated under the Copyright Act of 1976--which exempts "fair use" of material for purposes such as criticism and comment.

While the court acknowledged that there is no simple formula to determine when a parody has infringed a copyright, the justices ruled that a parody done for profit--even if it is not done in "good taste" and could damage the value of original work--does not violate the copyright law.

Jon Baumgarten, an attorney whose firm represents the heirs of such songwriters as Cole Porter and George Gershwin, was one of the few industry figures contacted who downplayed the ruling.

"While the ruling opens the door some, the court did not declare open season on copyright owners," said Baumgarten, whose firm filed a brief supporting Acuff-Rose. "The proof of the pudding is the justices sent the case back to the district court to examine specific factual issues on infringement."

The Supreme Court referred the case to a lower court to re-evaluate how much of the song was used by 2 Live Crew and how sales of its version may have damaged Acuff-Rose's market for the original composition.

Legal experts interviewed Tuesday speculated that the lower court will again side with 2 Live Crew--echoing a 1991, ruling by a federal judge in Nashville who determined the song did not infringe on the 1964 song's copyright.

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