WASHINGTON -- For the first time, the Supreme Court pondered yesterday the right of performers to make fun of someone else's song with a parody. But it did so in totally unfamiliar cultural territory: the worlds of rap and rock 'n' roll.
Dealing with tunes their children or grandchildren would more easily recognize, the justices kept mainly to the legal questions -- except for a passing remark by Justice Anthony M. Kennedy wondering whether it was musical progress to translate "rock" into "rap."
With one lawyer sniffing at observers who thought the rock 'n' roll hit "Oh, Pretty Woman" was country-western and another lawyer claiming social enrichment from the take-off parody, the rap hit "Pretty Woman," the court spent an hour talking copyright law.
Luke Skyywalker, the performing name of rap vocalist and songwriter Luther R. Campbell, was on hand for the hearing. Mr. Campbell sat in a green suit in the front spectator row as the court pondered whether his 2 Live Crew album cut, "Pretty Woman," made illegal use of the copyrighted 1964 ballad, "Oh, Pretty Woman," written by Roy Orbison and William Dees.
The lawyer for the current owners of the Orbison-Dees copyright complained to the justices that 2 Live Crew "took our music in order to have a free ride," thereby compromising the future salability of "one of the great works of rock 'n' roll."
Sidney S. Rosdeitcher of New York City rhapsodized over the guitar riff in his clients' original 1964 ballad. The 2 Live Crew parody uses the same riff, but the words differ so as to appeal primarily to an urban black audience.
A federal appeals court ruled last year that 2 Live Crew had illegally borrowed the basic musical themes of the older ballad in the parody that came out with quite a different message in the group's 1989 album, "As Clean As They Wanna Be."
The case before the justices, however, reaches far beyond 2 Live Crew's version and the dispute over whether it must pay royalties to the Orbison-Dees copyright owners.
The entire composing and recording industry is awaiting the outcome, as are entertainment figures like comedian Mark Russell and the satirical stage act, "Capitol Steps," whose performing successes depend heavily upon parodies of someone else's songs. Mr. Russell has written a parody to mock the court case.
Composers and artists have created parodies of others' songs throughout American history, but usually have not been obliged to pay for using the tune or the words or to get a license to do so. If 2 Live Crew loses the case, all of that could change.
The Supreme Court has provided constitutional protection against libel lawsuits for written forms of parody, but it has never confronted the issue of whether the copyright law limits the exploitation of protected songs by musical parodies.
2 Live Crew's lawyer, Bruce S. Rogow of Fort Lauderdale, Fla., argued that parody is "a creative force" that should be encouraged.
The parody should be protected against claims of illegal copying, he contended, unless it essentially shuts down the public's demand for the original song by taking its place in the market.
Any time a parody "pokes fun at the original" tune or makes fun of something else in society, it should be considered socially beneficial commentary or criticism, and exempted from royalty duties, the Florida lawyer said.
Justice Sandra Day O'Connor suggested that he was asking the court to speak too broadly. His approach, she said, would lead the court to take "a pretty big step."
Justice Antonin Scalia suggested that those who wanted to indulge in criticism could do so by many other means.
The court is expected to rule on the case before next summer.
DIAL THE SONGS
To hear excerpts of Roy Orbison's "Pretty Woman" and the 2 Live Crew's version of "Pretty Woman," call Sundial at (410) 783-1800 (268-7736 in Anne Arundel County). Using a touch-tone phone, punch in the four-digit code 6109 after you hear the greeting.