Monday, September 21, 2009
My Argument
Based on the facts presented by the court I do agree with the decision. It was a big step in music history, and gave a proper precedent that can allow for (at the time) a new form of making music possible to succeed. Since then the genre of rap music has made great strides to be more socially accepted. As a musician I believe that the court’s decision on what is fair use opened a door that led to the progression of music in a new direction. Today rap music has expanded to places even 2 Live Crew would have never imagined, and is a result of the supreme court’s decision. Even if the song (Pretty Woman) was seen as parody it gave a more defined view of what parody is, and that in itself was a catalyst for rap musicians to strive for more than just parody and create new and original ideas that when a final product is released it is not seen as parody. This is because the artist now can understand that they must reach past just using a song for what it stands for, but to create a whole new work and to respectfully use parts of other work as a means of inspiration or emphasis.
Rule of law
The court made a precedent involving what is and is not of fair use. The court upheld the four factors to be considered when fair use is in question, and in doing so gave a more defined explanation of what is and is not a work of parody. And also that not all parody will be found contitutional , but that “This may serve to heighten the comic effect of the parody, as one witness stated, App. 32a, Affidavit of Oscar Brand; see also Elsmere Music, Inc. v. National Broadcasting Co., 482 F. Supp. 741, 747 (SDNY 1980) (repetition of "I Love Sodom"), or serve to dazzle with the original's music, as Acuff-Rose now contends.”
Reasoning of the court
The district court had made the dacision based on the music behind the lyrics and title. Since song names cannot be copyrighted it was seen that since the only thing that was in direct relation to the original was the bass line and the district court stated that 2 Live Crew had not “helped themselves overmuch.” 754 F. Supp., at 1156-1157
The court of appeals disagreed, stating that "while it may not be inappropriate to find that no more was taken than necessary, the copying was qualitatively substantial. . . . We conclude that taking the heart of the original and making it the heart of a new work was to purloin a substantial portion of the essence of the original." 972 F.2d, at 1438.”
http://www.bc.edu/bc_org/avp/cas/comm/free_speech/campbell.html
The court of appeals disagreed, stating that "while it may not be inappropriate to find that no more was taken than necessary, the copying was qualitatively substantial. . . . We conclude that taking the heart of the original and making it the heart of a new work was to purloin a substantial portion of the essence of the original." 972 F.2d, at 1438.”
http://www.bc.edu/bc_org/avp/cas/comm/free_speech/campbell.html
Decision of the court
“It was error for the Court of Appeals to conclude that the commercial nature of 2 Live Crew's parody of "Oh, Pretty Woman" rendered it presumptively unfair. No such evidentiary presumption is available to address either the first factor, the character and purpose of the use, or the fourth, market harm, in determining whether a transformative use, such as parody, is a fair one. The court also erred in holding that 2 Live Crew had necessarily copied excessively from the Orbison original, considering the parodic purpose of the use. We therefore reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion. “
http://cip.law.ucla.edu/cases/case_campbellacuff.html#14
The court found the song to be of fair use by it’s dissenting opinions in reguards to the Copyright Act of 1976. Because the purpose of copyright is, "[t]o promote the Progress of Science and useful Arts . . . ." U.S. Const., Art. I, § 8, cl. 8. And as justice Story explains that "[i]n truth, in literature, in science and in art, there are, and can be, few, if any, things, which in an abstract sense, are strictly new and original throughout. Every book in literature, science and art, borrows, and must necessarily borrow, and use much which was well known and used before." Emerson v. Davies, 8 F. Cas. 615, 619 (No. 4,436) (CCD Mass. 1845).
The court found that the work was not of commercial nature, such as advertising or promoting anything in specific. It also found that it proposed no form of market harm, thus the audiences for each individual work is so vaired that there would be no monetary loss for the original work done by Orbison.
http://cip.law.ucla.edu/cases/case_campbellacuff.html#14
The court found the song to be of fair use by it’s dissenting opinions in reguards to the Copyright Act of 1976. Because the purpose of copyright is, "[t]o promote the Progress of Science and useful Arts . . . ." U.S. Const., Art. I, § 8, cl. 8. And as justice Story explains that "[i]n truth, in literature, in science and in art, there are, and can be, few, if any, things, which in an abstract sense, are strictly new and original throughout. Every book in literature, science and art, borrows, and must necessarily borrow, and use much which was well known and used before." Emerson v. Davies, 8 F. Cas. 615, 619 (No. 4,436) (CCD Mass. 1845).
The court found that the work was not of commercial nature, such as advertising or promoting anything in specific. It also found that it proposed no form of market harm, thus the audiences for each individual work is so vaired that there would be no monetary loss for the original work done by Orbison.
Wednesday, September 16, 2009
So what do I think of the Supreme Court
Over the course of the quarter I have been exposed to the legal system in ways I would have not have been otherwise. Our legal system is a very balanced one that relies on perspective and respect to all involved parties. That is especially important in the Supreme Court of the land.
The movie, “The First Monday in October” explains how it is important for the need for that perspective in law. Senator Snow explained how the Supreme Court is very much departed from the people. He explained to Justice Loomis how the courts must put people first. The courts are responsible for placing a collective response of the American people in the voices of only nine people.
I am not sure if our highest court is doing such a good job of relating a true American opinion. As we discussed in class for there to be a realistic representation of the American public the entire panel of Supreme Court Justices may have to be changed. But why? Isn’t the Supreme Court supposed to keep a consistency of opinion with respect to law? I think that if the justices were to be a direct representation of the population than the courts would be a mess.
Law is something not to be changed overnight. It takes time, consideration, time, precedent, and time to be properly evaluated. Just as law cannot be changed hastily neither should the people who interpret and enforce those laws. I believe that our Supreme court justices are not a realistic representation of the American people, but rather a realistic representation of who Americans look when all other efforts for justice have been exhausted. As time goes I am confident that the number of minorities and other religious backgrounds will grow. It is just not something to be taken lightly.
The movie, “The First Monday in October” explains how it is important for the need for that perspective in law. Senator Snow explained how the Supreme Court is very much departed from the people. He explained to Justice Loomis how the courts must put people first. The courts are responsible for placing a collective response of the American people in the voices of only nine people.
I am not sure if our highest court is doing such a good job of relating a true American opinion. As we discussed in class for there to be a realistic representation of the American public the entire panel of Supreme Court Justices may have to be changed. But why? Isn’t the Supreme Court supposed to keep a consistency of opinion with respect to law? I think that if the justices were to be a direct representation of the population than the courts would be a mess.
Law is something not to be changed overnight. It takes time, consideration, time, precedent, and time to be properly evaluated. Just as law cannot be changed hastily neither should the people who interpret and enforce those laws. I believe that our Supreme court justices are not a realistic representation of the American people, but rather a realistic representation of who Americans look when all other efforts for justice have been exhausted. As time goes I am confident that the number of minorities and other religious backgrounds will grow. It is just not something to be taken lightly.
Issue of the case
This case reached the supreme court as a case representing copyright, and what is and isn’t an example of fair use when the work is in parody of another work. The supreme court held a number of issues up for interpreting in the case of Campbell v. Acuff-Rose Music. In determining whether the use made of a work in any particular case is a fair use the factors to be considered:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.”
http://cip.law.ucla.edu/cases/case_campbellacuff.html
The court looked at whether or not the song could be interpreted as fair use as a parody under the Copyright act of 1976. District Courts found the song in fair use, but was reversed by the court of appeals. The song was characterized by it’s “commercial character and excessive borrowing.” Supreme court Justice Souter expressed his opinion by writing that, “Because we hold that a parody's commercial character is only one element to be weighed in a fair use enquiry, and that insufficient consideration was given to the nature of parody in weighing the degree of copying, we reverse and remand.”
1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes. This factor takes into consideration the nature of the work. 2 Live Crew’s song can be seen a a parody, but “the fact that parody can claim legitimacy for some appropriation does not, of course, tell either parodist or judge much about where to draw the line.” The Supreme court stated that, “We have less difficulty in finding that critical element in 2 Live Crew's song than the Court of Appeals did, although having found it we will not take the further step of evaluating its quality.” Instead the court viewed the work and looked for it’s transformative value. And that “Although such transformative use is not absolutely necessary for a finding of fair use, Sony, supra, at 455, n.40, the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works. Such works thus lie at the heart of the fair use doctrine's guarantee of breathing space within the confines of copyright, see, e. g., Sony, supra, at 478-480 (BLACKMUN, J., dissenting), and the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.”
2. The nature of the copyrighted work. The cort stated, “We agree with both the District Court and the Court of Appeals that the Orbison original's creative expression for public dissemination falls within the core of the copyright's protective purposes. 754 F. Supp. at 1155-1156; 972 F.2d at 1437. This fact, however, is not much help in this case, or ever likely to help much in separating the fair use sheep from the infringing goats in a parody case, since parodies almost invariably copy publicly known, expressive works.”
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole. The court made a priority of revealing the degree to which the parody may serve as a market substitute for the original or potentially licensed derivatives.
4. The effect of the use upon the potential market for or value of the copyrighted work. Here the court was to determine whether or not the enquiry "must take account not only of harm to the original but also of harm to the market for derivative works." Harper & Row, supra, at 568. “
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.”
http://cip.law.ucla.edu/cases/case_campbellacuff.html
The court looked at whether or not the song could be interpreted as fair use as a parody under the Copyright act of 1976. District Courts found the song in fair use, but was reversed by the court of appeals. The song was characterized by it’s “commercial character and excessive borrowing.” Supreme court Justice Souter expressed his opinion by writing that, “Because we hold that a parody's commercial character is only one element to be weighed in a fair use enquiry, and that insufficient consideration was given to the nature of parody in weighing the degree of copying, we reverse and remand.”
1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes. This factor takes into consideration the nature of the work. 2 Live Crew’s song can be seen a a parody, but “the fact that parody can claim legitimacy for some appropriation does not, of course, tell either parodist or judge much about where to draw the line.” The Supreme court stated that, “We have less difficulty in finding that critical element in 2 Live Crew's song than the Court of Appeals did, although having found it we will not take the further step of evaluating its quality.” Instead the court viewed the work and looked for it’s transformative value. And that “Although such transformative use is not absolutely necessary for a finding of fair use, Sony, supra, at 455, n.40, the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works. Such works thus lie at the heart of the fair use doctrine's guarantee of breathing space within the confines of copyright, see, e. g., Sony, supra, at 478-480 (BLACKMUN, J., dissenting), and the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.”
2. The nature of the copyrighted work. The cort stated, “We agree with both the District Court and the Court of Appeals that the Orbison original's creative expression for public dissemination falls within the core of the copyright's protective purposes. 754 F. Supp. at 1155-1156; 972 F.2d at 1437. This fact, however, is not much help in this case, or ever likely to help much in separating the fair use sheep from the infringing goats in a parody case, since parodies almost invariably copy publicly known, expressive works.”
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole. The court made a priority of revealing the degree to which the parody may serve as a market substitute for the original or potentially licensed derivatives.
4. The effect of the use upon the potential market for or value of the copyrighted work. Here the court was to determine whether or not the enquiry "must take account not only of harm to the original but also of harm to the market for derivative works." Harper & Row, supra, at 568. “
Wednesday, September 9, 2009
illicit
Musicians may be some the biggest criminals in the world. Not because of the alleged drug and alcohol abuse that is synonymous with the rock and roll lifestyle, but because of our ways of dispersing music to the masses. I am talking about illegal distribution of music through piracy. As seen in the film “Illicit,” I feel somewhat responsible for other major illegal activity. I am no drug runner nor am I any type of money launderer with the agenda of influencing political figures. But my intentions are even more selfish. I want free music, and so do my friends. We download torrents with entire discographies of our favorite musicians. In turn that music is illegally reproduced and traded or given away with no monetary value along the way. This is solely for our own satisfaction and entertainment.
Wait a second! What the hell am I saying? I’m not buying a bootleg from the shady guy on the corner where all the proceeds might go to some illicit form of goods that might ultimately end up in drugs and guns. Nope. There was no money at all. So there is nothing wrong? Really? Not really.
I believe it is true that pirating media is just as harmful. In a different sense. In the sense that somewhere someone is making money off of the same music I have, and doing bad things with that money. Now to be perfectly honest I do not download. I have my friends do it for me. I still shop for my CD’s at the store. And if I cannot afford it I find it somewhere online where I can listen to it for free. So that puts me at an awkward place. What I am saying is that I do not support nor oppose this type of illegal activity. Where does that put me in the grand scheme of things. Not behind bars, and that’s the way I like it.
Wait a second! What the hell am I saying? I’m not buying a bootleg from the shady guy on the corner where all the proceeds might go to some illicit form of goods that might ultimately end up in drugs and guns. Nope. There was no money at all. So there is nothing wrong? Really? Not really.
I believe it is true that pirating media is just as harmful. In a different sense. In the sense that somewhere someone is making money off of the same music I have, and doing bad things with that money. Now to be perfectly honest I do not download. I have my friends do it for me. I still shop for my CD’s at the store. And if I cannot afford it I find it somewhere online where I can listen to it for free. So that puts me at an awkward place. What I am saying is that I do not support nor oppose this type of illegal activity. Where does that put me in the grand scheme of things. Not behind bars, and that’s the way I like it.
Wednesday, September 2, 2009
Supreme Court Case
Campbell v. Acuff-Rose Music (92-1292), 510 U.S. 569 (1994).
Acuff music sued the members of the rap group 2 Live Crew. This was in relation to 2 Live Crew’s song, “Pretty Woman.” This song had “infringed Acuff Rose’s copyright in Roy Orbison’s Rock Ballad, “Oh Pretty Woman.”( http://www.law.cornell.edu/supct/html/92-1292.ZS.html) The band used the presumption that the song was a parody, and made fair legal use of the song.
The Court decides it is "fair to say that 2 Live Crew's song reasonably could be perceived as commenting on the original or criticizing it, to some degree." Ante, at 13 (applying the first fair use factor). While I am not so assured that 2 Live Crew's song is a legitimate parody, the Court's treatment of the remaining factors leaves room for the District Court to determine on remand that the song is not a fair use. As future courts apply our fair use analysis, they must take care to ensure that not just any commercial take-off is rationalized post hoc as a parody.( http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=510&invol=569)
Acuff music sued the members of the rap group 2 Live Crew. This was in relation to 2 Live Crew’s song, “Pretty Woman.” This song had “infringed Acuff Rose’s copyright in Roy Orbison’s Rock Ballad, “Oh Pretty Woman.”( http://www.law.cornell.edu/supct/html/92-1292.ZS.html) The band used the presumption that the song was a parody, and made fair legal use of the song.
The Court decides it is "fair to say that 2 Live Crew's song reasonably could be perceived as commenting on the original or criticizing it, to some degree." Ante, at 13 (applying the first fair use factor). While I am not so assured that 2 Live Crew's song is a legitimate parody, the Court's treatment of the remaining factors leaves room for the District Court to determine on remand that the song is not a fair use. As future courts apply our fair use analysis, they must take care to ensure that not just any commercial take-off is rationalized post hoc as a parody.( http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=510&invol=569)
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