The Metaphysics of Copyright

IN LATE SPRING 1990, a major American music publisher entered into battle with a popular singing group over a handful of words and a few bars of music. In 1965, Acuff-Rose Music, the largest country music publisher in the world, had acquired rights to the song "Oh, Pretty Woman" from its writers, the celebrated pop star Roy Orbison and William Dees. Orbison's recording of the song was his last and biggest hit. Now, twenty-five years later, and without permission from Acuff-Rose, the controversial rap group 2 Live Crew had recorded its own version of the song on its latest album, sandwiching it between two other tracks, "Me So Horny" and "My Seven Bizzos." On June 18, 1990, Acuff-Rose filed suit in federal district court in Nashville, Tennessee, for infringement of its copyright.

What is copyright? From copyright law's beginnings close to three centuries ago, the term has meant just what it says: the right to make copies of a given work—at first it meant simply written work—and to stop others from making copies without one's permission. The first copyright laws aimed only at exact replications of printed work. The publishers of the eighteenth-century poet James Thomson's The Seasons regularly sued producers of unauthorized, or pirated, editions of the popular poem, since they controlled the copyright, obtained from Thomson. Starting in the mid-nineteenth century, copyright extended its reach. As the law evolved, copyright owners could stop the publication not only of exact knockoffs but also of imitations and adaptations: the translation into German of an English-language novel, a story's dramatization for the stage, an abridgment of a twelve-volume biography of George Washington.

And a rap parody of a poignant, popular lyric? One of copyright law's most bedeviling questions is how much one author can borrow from another before he becomes a copyright infringer. In an essay on "Literary Larceny," the English copyright scholar and barrister Augustine Birrell observed that "a particular leg of mutton is mine is capable of easy proof or disproof, but how much of my book is mine is a nice question." Getting the answer to that question right is important, because it is in the nature of creative work for one author to draw on the works of others. Drawing the line of copyright infringement too short will fail to give the original author his due, but extending it too far will make it hard for other writers to earn theirs.

Did 2 Live Crew cross the line when it borrowed from Orbison and Dees? The trial court found that while the group had copied some lyrics and music from "Oh, Pretty Woman," its rendition was very different. The song "starts out with the same lyrics as the original," but, the court added, "it quickly degenerates into a play on words, substituting predictable lyrics with shocking ones." Where Roy Orbison fantasizes about a beautiful woman he encounters on the street, 2 Live Crew had some very different fantasies in mind: a "big hairy woman," a "baldheaded woman," and a "two-timin'" woman.

The lawyers for 2 Live Crew understood that traditional copyright doctrine would judge their clients not by how much they had added to the Orbison-Dees original but by how much they had taken from it. Indeed, they effectively conceded that 2 Live Crew had infringed the copyright but for a single fact: the group's song was not an imitation but a parody, and parodies should be allowed to borrow more liberally than outright imitations. After all, how could a parodist make his point without conjuring up the original, and how could one conjure up the original without copying some of its content?

On January 14, 1991, the trial court handed down its decision. It agreed with 2 Live Crew's argument that parodies deserve elbow room, not only because the art of parody requires some degree of copying but also because it serves a larger cultural purpose—deflating cultural icons. The veteran folk singer Oscar Brand had testified for 2 Live Crew that African-American music commonly substitutes new words to "make fun of the 'white-bread' originals and the establishment." The court agreed. "2 Live Crew is an antiestablishment rap group and this song derisively demonstrates how bland and banal the Orbison song seems to them."

The dispute between Acuff-Rose and 2 Live Crew was just one of hundreds of copyright cases filed in 1990. Copyright cases run the gamut of popular culture, from songs, novels, and motion pictures to news stories, advertisements, photographs, and architecture. Copyright embraces more than art. Some cases involve instructional materials, scientific and scholarly texts, cookbooks—even computer programs. Some turn on broad principles like those invoked by 2 Live Crew. Other cases call for the interpretation of intricate statutory rules. A great many turn on the answer to two questions: Has the defendant copied? Has he copied too much? All copyright cases have one fact in common: by telling authors how much they may lawfully borrow from earlier works and how much they must create on their own, copyright law indelibly colors the works it encompasses, whether news stories, stock market reports, scholarly articles, motion pictures, magazine pieces, or popular records.

Front-page copyright lawsuits like the Pretty Woman case have a clear effect on authors and their works. But that effect is usually felt far from the courtroom, in the corporate legal departments and private law offices to which executives in publishing companies, record companies, motion picture studios, and advertising agencies regularly turn for advice on how much can be taken from a copyrighted work without crossing the law's "No Trespassing" line. Even insurance companies, which issue "errors and omissions" policies to protect publishers and film studios from the effects of adverse copyright decisions, have a say in what gets published and what does not.

All these decisions, whether made in the courts, legislatures, or private law offices, have a single result: when copyright gives control to one person, it extracts some measure of freedom to imitate from everyone else. What justifies this legally enforced exchange? One justification that artists and writers frequently advance is their privacy, the legally enforced seclusion they need to protect their early drafts, and even their correspondence, from public view. In 1986, the reclusive writer J. D. Salinger sought and obtained a copyright injunction to stop a biographer from publishing quotations from his private letters now housed in research libraries. Authors also look to copyright to preserve the integrity of their works. In 1976, the Monty Python comedy troupe went to court and used its copyrights to stop the ABC television network from broadcasting three of its programs in a version that had been truncated to accommodate commercial...