Court gives parodists wider freedom

March 08, 1994|By Lyle Denniston | Lyle Denniston,Washington Bureau of The Sun

WASHINGTON -- In a ruling that could further liberate songwriting as a form of social criticism, the Supreme Court lowered yesterday the legal risks faced by composers who borrow music or words from a song for a new version that pans or ridicules the original.

The unanimous decision appeared to go far toward rescuing musical parodies from legal action under federal copyright law, and to give wider legal leeway for such comic parodists as television's Mark Russell.

The ruling involved the rap group 2 Live Crew's rewrite of the classic Roy Orbison-William Dees rock 'n' roll ballad, "Oh, Pretty Woman." The parody, called "Pretty Woman," was a black cultural commentary on a "white" musical theme.

The court stressed that composers of music parody must mimic a significant part of the original to make their point through "distorted imitation."

In the 2 Live Crew version, the romantic and sexually suggestive original ballad became a sexually explicit, rather brutal take-off that in essence condemned the original's point of view.

Where Mr. Orbison's and Mr. Dees' ballad spoke of a nighttime meeting with a woman who was "lovely as can be" and, he hoped, "lonely just like me," the rap group speaks of a grotesque encounter with a "big hairy woman."

The Supreme Court did not give 2 Live Crew a final victory, but voted instead to send the case back to lower courts for another look.

Moreover, the ruling contained some words of caution for judges handling copyright claims against music parodies.

The ruling did not mean, the court said, "that anyone who calls himself a parodist can skim the cream [from someone else's song] and get away scot free."

Even so, the ruling, written by one of the leaders of the court's moderate bloc, Justice David H. Souter, sent strong signals that parodists from here on will have considerable leeway to borrow others' lyrics and music as a medium of criticism.

The decision struck down a lower court ruling that said that parodies, when done for potential financial gain or commercial success, usually will be found to violate federal copyright law for copying original compositions.

The lower court, Justice Souter said, put too much stress on the commercial aim that may motivate writers of parody.

To qualify as parody that is shielded from copyright attack, the Souter opinion said, a mimicking song cannot simply copy the original, but must "add something new . . . altering the first with new expression, meaning or message."

This legal approach, Justice Souter said, will provide "breathing space" for creativity.

Parody deserves protection, he wrote, because "it can provide social benefit, by shedding light on an earlier work, and, in the process, creating a new one."

Technically, the court's ruling turns on how much use of someone else's copyrighted creation can be copied, under a theory of "fair use," without becoming an infringement of the rights of the owner of the original.

In other actions yesterday, the court rejected without comment former heavyweight boxing champion Mike Tyson's constitutional challenge to his conviction and six-year prison sentence for raping a beauty contest participant in Indianapolis in 1991.

The court also narrowed significantly, by a 5-4 vote, the federal law that allows judges to be ousted from cases in which they appear to be biased or prejudiced.

The ruling came in a case growing out of the anti-war protests of two men who formerly lived in Baltimore, John Patrick Liteky and his brother Charles Joseph Liteky, and a Maryknoll priest from Georgia, the Rev. Roy L. Bourgeois. The Litekys had been affiliated with Baltimore's Jonah House community.

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