BY:
Michael I. Rudell(Originally published in the Entertainment Law column in the New York Law Journal, August 22, 2003.)
A hip-hop artist used the first verse of a well-known composition, changing certain of the lyrics, in his own recording of a rap song contained on an album. The copyright proprietor of that composition sued for copyright infringement and both parties moved for summary judgment. The U.S. District Court for the Southern District granted defendant’s motion, holding that the use of the composition was fair use and plaintiff’s copyright was not infringed.
The copyright in issue is the extremely popular “Wonderful World” (the “Composition”) for which, in the last few years alone, the publisher/plaintiff has granted hundreds of licenses to record and make derivative works. The most popular version was recorded by Louis Armstrong.
The first verse of the Composition, which contains an optimistic view of life and the natural world, is as follows:
I see trees of green, red roses too
I see them bloom for me and you
And I think to myself, what a wonderful world.”
In 2001 the hip-hop artist Dennis Coles, known professionally as Ghostface Killah, wrote and recorded “The Forest” for inclusion on an album entitled “Bulletproof Wallets.” “The Forest” portrays a dark view of the world by imagining popular cartoon characters in a “wonderland,” engaged in acts of violence, sex, and theft. The Court refers to the recording as having scatological or obscene lines throughout.
“The Forest” begins with an off-key rendition of the first verse of the Composition. The melody of the Composition is recognizable, although the tempo and rhythm are different from the original. Coles also changed the lyrics, inserting slang references to marijuana, where the original describes trees and flowers. After that opening, there is no repetition of the quote from the Composition or any reference to it.
The album was not a hit by hip-hop standards, selling only 240,000 copies and grossing $3.5M. Nevertheless, in 2001 the plaintiff sent a notice of its claims to the distributor of the album, and when the parties were unable to resolve the issues, plaintiff filed suit seeking actual or statutory damages, a permanent injunction against further infringement, destruction of all copies of “The Forest” and costs and attorney’s fees. The parties stipulated that plaintiffs established a prima facie case of copyright infringement. Thus, the sole unresolved issue with respect to liability is the defendant’s affirmative defense of fair use.
The Court begins its discussion by citing the standards for summary judgment. It notes that courts should be especially wary of granting summary judgment in cases involving copyright infringement because they often are highly fact dependent. However, when none of the material facts are disputed and each party has contended that its case is complete by moving for summary judgment, the likelihood that additional, non-cumulative evidence will be presented at trial is slight and judgment as a matter of law may be appropriate.
The Court then addresses the affirmative defense of fair use, noting that section 107 of the Copyright Act recognizes same as a complete defense to a claim of infringement. In determining whether a given work makes fair use of the copyrighted material of another work, courts are to weigh the following four statutory factors together, giving none dispositive weight: (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.
In general, if the new work truly transforms the original one, through comment, criticism or additional material, it is more deserving of fair use protection because it represents true creative effort on the part of its author and is less likely to thwart the purposes of the copyright law by supplanting the market for the original. The essence of the defendant’s defense is that the use of material from the Composition in “The Forest” constitutes fair use because the use parodies the Composition’s portrayal of the world as a place of love and happiness. Citing the decision in Campbell v. Acuff-Rose Music, Inc., the Court states that parody has been recognized by the Supreme Court as a form of fair use even though it is not expressly listed among the examples of fair use in section 107 because the very purpose of parody to comment or criticize the “substance or style of the original composition” through humor or slapstick makes it a form of criticism.
The determination of whether a work constitutes a parody of the original forms part of the consideration of the first of the four fair use factors, the nature and purpose of the use. If a court decides that the work in issue is a parody, its consideration of the other three factors must be informed by the nature of parodic works in general. In sum, once a work is determined to be a parody, the second, third and fourth factors are unlikely to militate against a finding of fair use.
The first factor examines whether the use of the copyrighted work in the new one transforms it in some way by adding something new or commenting on it. Again, citing Campbell, the Court states that parody “has an obvious claim to transformative value” and, thus, deciding that the new work is a parody necessarily entails finding that it is transformative.
In determining whether the new work is a parody of the original, the relevant inquiry is whether the parodic character may reasonably be perceived. Plaintiffs argue that the issue is whether Ghostface Killah intended “The Forest” purely as a parody of the Composition. The Court disagrees, stating that the issue is whether, considered as a whole, “The Forest” differs from the Composition in a way that may reasonably be perceived as commenting, through ridicule, on what a listener might reasonably think is the unrealistically uplifting message of “Wonderful World.” Under this standard, “The Forest” clearly is a parody of the Composition.
The decision states that the heart of any parody is its evocation of the message or style of the original work in order to alter that message or style in a way that humorously expresses the author’s opinion of the original work. Here, no two worlds could be more different than the one depicted in the Composition and the one portrayed in “The Forest,” the latter both criticizing and ridiculing the cheerful perspective of the former. Thus, “The Forest’s” use of the Composition is indisputably intended to parody the message of the original. In this regard the Court refers to reviews of “Bulletproof Wallets” which discussed “The Forest’s” use of the Composition in terms of its alteration of the original.
The Court rejects plaintiff’s argument that “The Forest” cannot be a parody of the Composition because it incorporates only three lines and never returns to it after the initial use in the introduction. Essentially, plaintiff’s argument is that “The Forest” uses too little of the Composition and therefore is at best a satire directed at modern society, but not a parody directed at the original itself. However, the decision states that the fair use analysis as a whole avoids quantitative measurements, relying instead on a qualitative examination of the unique characteristics of the work in issue. This is not a case in which the author has taken the melody of a popular song purely for the sake of convenience and then changed the lyrics to satirize a subject having nothing to do with the original song.
The Court indicates that plaintiff’s analysis would create a perverse incentive for parodists to use more of an existing work, in effect making their parody less transformative, thereby undermining the very rationale for according permissive fair use treatment to parodies.
Because “The Forest” is a transformative parody of the Composition, the Court finds that the first factor weighs in favor of a finding of fair use.
After indicating that the second fair use factor has limited importance in parody cases, the Court discusses the third statutory factor, the proportion of the original work used in relation to the original work as a whole. It agrees that “The Forest” takes the heart of the Composition and that often the opening lines of a song are the most memorable ones. Because parody must often quote the most distinctive or memorable features which the parodist can be sure the audience will know, the question is not whether the parodist appropriated the most recognizable part of the original, but whether the parodist then took so much additional material that the use becomes unreasonable. In the instant case, “The Forest” took nothing beyond the necessary distinctive elements of the Composition and, accordingly, this factor does not weigh against a finding of fair use.
In considering the fourth fair use factor, the decision states that, in general, the more transformative a new work is, the less likely it would be to serve as a substitute for the original in the marketplace. Parodies in particular serve a different market function than their subjects, making market harm unlikely.
The Court considers the issue of whether the parodic work went beyond simple parody and transposed the Composition into a new genre, because if it did so, it could have an affect on potential markets for derivative works that recreate the Composition in the new genre without parodying it. It concludes that the rendition by “The Forest” of the Composition is simply a quotation that stays relatively true to the melody, form and genre of the original; only after finishing the quotation does the song’s hip-hop beat and rap-style lyrics begin. Thus, the quotation is distinct from the rest of “The Forest,” and the alterations of its style and lyrics – those necessary to parody the original – do not transform it into a rap song.
Finding that there is no evidence that the use of the Composition in “The Forest” will cause substantial market harm to the original, the Court holds that the fourth factor favors a conclusion of fair use.
In its aggregate assessment of the issues, the Court indicates that if it were to disallow this use of the Composition, it would contravene the purpose of copyright of allowing new works to acknowledge, influence and react to what has gone before, and would allow copyright owners to quash parodies and other forms of transformation and comment of which they do not approve.
Here, the first and fourth factors favor fair use, the second one weighs against fair use but its importance is limited in parody cases and the third factor does not weigh heavily either way. As the balance of the factors markedly favor the defendant, “The Forest’s” quotation of the Composition is fair use and the plaintiff’s copyright has not been infringed. Accordingly, plaintiff’s motion for summary judgment is denied and defendant’s motion for summary judgment is granted.
1 Abilene Music, Inc. v. Sony Music Entertainment, Inc., 2003 WL 21415311 (S.D.N.Y., June 18, 2003)
2 510 U.S. 569 (1994)