21 January 2006

Ugly Woman

This morning, we're playing "what's wrong with this picture?" in the litigation version. An article in WaPo notes that Luther Campbell, formerly of 2Live Crew fame, is suing another rapper for allegedly copying one line out of one of Campbell's songs (a 1994 "effort", if anything in rap counts as "effort"). Those of you who were paying attention in Law 346 (Copyright and Trademark), or who even care at all about fair use, should be scratching your heads. Where, oh where, have I heard that name before outside of a record store or concert promotion? Hint: Justice Souter provided an extensive appendix to his opinion. That's right. It's that Luther Campbell, as in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994).

First, there's the ironic aspect of this. Campbell "copied" an entire piece of garbage cowritten (and famously performed) by Roy Orbison and "transformed" it into a rap piece. "Hey, O. K. | If that's the way it must be, O. K." became "Hey pretty woman let the boys | Jump in." An insipid love (lust?) ballad became a misogynistic celebration of treating women based upon their appearance… in a rather different way. When Orbison's publisher (Acuff-Rose Music)1 objected that 2Live Crew's version infringed the copyright in "Oh, Pretty Woman," 2Live Crew dragged out the post hoc rationalization that its version was a fair use because it was a parody. Eventually, Justice Souter (and a majority of the court) sided with the boys from Miami against the boys from Nashville, ruling that on the facts of that case a parody was, and in a more general sense could be, a fair use. Now, Campbell (or, at least, the copyright holder to his compositions) is suing someone for copying a single line from one of his own songs and changing one word ("Sheila" became "shorty").

This leads to some theoretical musings, without the benefit of adequate caffeination, on two very puzzling aspects of copyright doctrine. First, there's the question of what counts as sufficient "transformation" to create a fair use. Why should the kind of transformation from Orbison to Campbell be sufficient, but the transformation from Campbell to 50¢ be insufficient? After all, 50¢ took a lot less of Campbell's lyrics, even if he allegedly took a lot more of Campbell's musical context. In short, why should a faithful, but partial, reuse or reinterpretation be treated as more likely to infringe than an unfaithful one of an entire work?2

The second question is, although (or, perhaps, because) much less fact-bound, much more troubling. US copyright law distinguishes between "parody" and "satire"; the US copyright law definition of "parody" (at least potentially) falls within fair use, while the US copyright law definition of "satire" does not (at least, not without other indicia of fair use). Leaving aside for the moment that the lawyers screwed up the two definitions and nearly inverted them—at least as used by literary theorists and critics since the early twentieth century—this makes little sense. Designation as "parody" much easier to do as a post hoc rationalization than is designation as "satire"; many, if not most, of those accused affringers who resort to the "parody fair use" defense wouldn't know the difference if it slid up their legs and bit them on the butt, and don't think of that until they're accused of infringement. More disturbingly, if one strips away the legal errors, there isn't a sound theoretical reason to consider "parody" a greater transformation (and, therefore, more likely to be fair use) than a "satire" of the same material. Except, perhaps, there is one group to whom the distinction has value: lawyers, law clerks, and jurists with little sense of humor and no familiarity with the process of literature.3 That's even worse than entrusting MFA students in "creative writing" to academics whose only publications have been in college literary magazines, and whose own degrees came largely through approval by other academics with similar "qualifications."

  1. Not Orbison or his estate. One of the more-dubious practices in the music segment of the entertainment industry is to treat songwriters as employees—mere creators of work for hire. Sometimes the contracts don't have that form; they purport to "purchase the copyright." Reading the rest of virtually any music-publishing contract, though, reminds one all too much of Lochner… and of the abuses the underlying New York statute on working hours was meant to address. And the songwriters have it good compared to the performers.
  2. The short, sarcastic, and historically accurate answer is "Because Justice Story said so in the early 19th century." The four fair-use factors in US copyright law descend from an 1841 decision that did not consider transformations across form… and couldn't have, because the practice and technology in this country at that time simply didn't allow the kinds of transformations possible even fifty years later, let alone a century and a half later when 2Live Crew began.
  3. Although an individual work is a "thing," literature—or any other coherent subset of "the arts"—is a process of inspiration, intuition, influence, and invention. Trying to pretend otherwise by labelling a work as exclusively one type of an amorphous, overlapping subsegmented universe of types is intellectually dishonest at best. Specific example: is Orwell's 1984: A Novel a political tract? A work of fiction? A work of speculative fiction? A utopian musing? A satire? A character study? A epistolary? The only correct answer is "yes; it is all of these."