March 7, 2014
Since its entry into the realm of popular use, the Internet has had a tenuous relationship with intellectual property legal protections – especially those relating to copyright. While the Internet has largely epitomized the free exchange of information and data, copyright laws generally have the opposite effect.
However, one of the principal reasons that the Internet has been able to expand so tremendously in the face of restrictions such as copyright laws is the legal doctrine called “fair use.”
“Fair use” is a limited exception to a creator’s exclusive control over his or her protected work, and such “fair uses” include commentary, criticism, parody, news reporting, educational purposes, library archiving, and search engines. In fact, a November 2013 ruling upheld as “fair use” Google’s project of digitally scanning over 20 million books (many of which were copyright-protected and scanned without the authors’ permission) into a digital database (made available to librarians and in limited “snippets” to the public).
The seminal case cited in that ruling – indeed the seminal case for the modern application of the fair use doctrine – is Campbell v. Acuff-Rose Music, Inc. Campbell is today celebrating its twentieth birthday, having been decided by the Supreme Court on March 7, 1994.
If you’ve taken any courses in law school that covered copyright law, you are likely familiar with this case. Roy Orbison released his song “Oh, Pretty Woman” in 1964. In 1989, the band 2 Live Crew released a song called “Pretty Woman,” which parodied Orbison’s original song (2 Live Crew credited Orbison for the original song). Of note is the fact that 2 Live Crew’s manager sought a license to use the original song from the record label, Acuff-Rose Music, prior to the release of the parody, but Acuff-Rose refused.
Almost a year after the parody’s release, Acuff-Rose sued 2 Live Crew and its record label for copyright infringement. The band won at the district court, but lost at the court of appeals. The Supreme Court agreed to hear the case, and found for 2 Live Crew.
Reversing the court of appeals, the Supreme Court found that just because the parody was commercial in nature doesn’t mean that it is a presumptively “unfair” use, as the appeals court had concluded (which admittedly was in line with previous fair use rulings). Instead, the Court viewed § 107 of the 1976 Copyright Act, which lays out the qualifications for “fair use,” as needing to be applied on a case by case basis, and that there isn’t a single, bright-line rule in determining whether a work make invoke “fair use.”
The Court held that the parody’s commercial nature was only one of four factors that need to be looked at when evaluating whether a work’s use of another copyrighted work qualifies as “fair.” The Court then went through all of the factors in detail, thereby providing a roadmap for all future fair use cases to follow.
In the end, the Court held that, even though 2 Live Crew had financially gained from its song, the remaining factors weighed in favor of the band’s parody being considered a fair use of Orbison’s original work, and thus ruled in favor of 2 Live Crew.
The importance of this case to the explosive growth of the Internet is hard to understate. Without this ruling and the broad fair use protections it enshrines, search engines like Google would find themselves severely handicapped, since they would be unable to display copyright-protected material in their results. Websites with user-generated content would be effectively inoperable since any material – say, a video of your kids dancing to a copyright-protected song – could create liability for infringement.
Finally, and arguably most significantly, thanks to Campbell, a work borrowing copyrighted material is not presumptively “unfair” simply because it was done for commercial gain. Considering that the vast majority of websites operating on the Internet are operating for commercial gain, “fair use” would offer little protection to Internet content without Campbell.
Thus, you have Campbell to thank for being able to read this article on the Internet.