On Tue, 8 Mar 1994, Seth Greenstein wrote:
>
> I feel encouraged that the Supreme Court unanimously reversed in
> _Campbell v. Acuff-Rose_, but I am troubled by the nature of the
> remand. The Court believed that a parody can be a fair use even if
> it destroys the market for the original work, simply because that's
> the nature of parody and criticism. Why, then, should the Court
> remand for consideration of the effect of the parody on both the
> market for the existing work and for derivative works? Just as a
> parody could eviscerate, with impunity, the market for the original
> work, a parody could equally destroy the market for derivative works.
I think that you are missing the Court's point that whether a parody is fair use or not depends on whether it is truly a parody or simply a rip-off that will substitute for the original in the market place. The Court uses the example of a review that may destroy the market for the original but not by competing with the original for sales. A review that is not really a review -- but rather a thinly disguised version of the original work -- would not pass muster.
> In other words, why should the effect on the market matter if the work
> is found to truly be a parody?
The issue on the market for some future rap version of Pretty Woman by the owners of the copyright is partly a matter of civil procedure, as well. The District should not have granted 2 Live Crew's Summary Judgment while some relevant fact was still in question. Since the burden of proof on the issue was 2 Live Crew's, Justice Souter found that the District Court was in error in granting summary Judgment. The point is that you cannot decide that a parody is not a rip-off of some future rap version without looking at any evidence on whether it is a rip-off or not.
This archive was generated by hypermail 2.2.0 : Mon Mar 26 2007 - 00:35:11 GMT