FOREWORD: FAIR USE IN THE DIGITAL AGE, AND CAMPBELL V. ACUFF-ROSE AT 21
Zahr K. Said(fn*)
Most students who study intellectual property in law school read Campbell v. Acuff-Rose Music, Inc.,(fn1) and I would guess that those who read it probably remember it, even years after the fact. It features not just pop culture, but an outré attention-seeking band with a lack of nuance, the Kardashians of the 1990s hip-hop scene. The case revolved around "Pretty Woman," a not-very-good, probably unfamiliar-to-students rap parody of Roy Orbison's well-loved and almost certainly familiar-to-students song, "Oh, Pretty Woman."(fn2) The larger-than-life rap group, 2 Live Crew, had faced legal battles of various sorts for years, and had earned great notoriety in connection with public debates over obscenity.(fn3) Many cities in America found 2 Live Crew "unacceptable," if not illegal, and actual charges of obscenity were raised in Florida and Louisiana for sales to minors and also for sales outright.(fn4) In 1990, a Florida court had made legal history by being the first federal court to find a piece of music obscene when it ruled on 2 Live Crew's album, As Nasty as They Wanna Be.(fn5) In so doing, it led the way for prosecutors to go after record stores distributing the album as well as to arrest the group itself for performing "obscene" music.(fn6) These well-publicized legal skirmishes made the members of 2 Live Crew well-known figures, to say nothing of vividly memorable defendants. If law students were inclined to forget the case, subsequent courts cite to Campbell so dutifully that forgetting it seems impossible.(fn7) Of course, with the litigants' hit singles including the embarrassingly successful song,(fn8) "Me So Horny," and others with titles and lyrics so lewd I would prefer not to cite them in a law review article, such a lapse in student memory seems unlikely.(fn9) While it seems remarkable to many, Campbell is now, anthropomorphically speaking, not only old enough to buy the 2 Live Crew albums once deemed obscene,(fn10) but also old enough to consume a beer legally while listening to them.
If Campbell had remained a narrow pop-culture case-a doctrinal one-hit wonder-it would not have possessed the capacity to generate so much enthusiasm, and such heated debate, among scholars and practitioners of high caliber. Yet gathered at the University of Washington School of Law for two days in April 2015 were forty of the leading and emerging experts in copyright law in the United States, to discuss the impact the case has had and to speculate about the directions fair use law will take in light of this watershed opinion. It remains, by many accounts, one of the three most important fair use opinions in American law.(fn11) Reflecting on Campbell's wide and deep footprint in the case law over the twenty-one years since the case was handed down forms the purpose for our Symposium and for this collection of excellent scholarly papers in the Washington Law Review.
To assess how and why the case has seemed to have so great an impact on copyright case law, the Washington Law Review has turned to eight authors to explore various issues associated with the opinion, from its arguments' internal justifications and origins to its effect on lower courts' decision-making. In this Foreword, I will offer a few thoughts to explain Campbell's importance and to situate it historically, and I will touch briefly on the far-ranging contributions made by the very accomplished Articles in this Symposium issue.
When the Supreme Court decided Campbell v. Acuff-Rose in 1994, it seemed perhaps straightforward enough: parody, however tasteless or offensive, had gotten a pass; other uses appeared to be-perhaps-less clearly favored.(fn12) Yet the Court's reasoning in Campbell also seemed as though it could be read to clear the way for a range of unauthorized cultural appropriation practices beyond parody, at least those practices whose purpose in using the underlying work was "transformative."(fn13) Less clear was what sorts of practices would count as transformative.(fn14)
The Court had relied on Judge Pierre N. Leval's seminal Harvard Law Review article, Toward a Fair Use Standard,(fn15) to articulate a framework for assessing the reason for a defendant's use of plaintiff's work.(fn16) Judge Leval had been a judge for the Southern District of New York, and he had happened to receive a considerable number of copyright cases on his docket, thus developing particular expertise and insight into this area of law.(fn17) With twenty-one years of hindsight, it is beyond cavil that Judge Leval's article has-to transplant the word transformative-transformed the fair use landscape. Whether one believes it is the only factor that seems to matter, or perhaps the only factor that should truly matter, the transformative use question has almost certainly become the central analysis in most contemporary fair use cases.(fn18) Boiled down, Judge Leval's argument was that factor one, which looks at the purpose and character of defendant's unauthorized use of the work, could determine whether a use was justified, in terms of copyright's larger purposes.(fn19) He has referred to the factor one analysis as "the soul of fair use."(fn20) Other commentators have concurred, noting that courts rarely look to the second and third factors as determinants,(fn21) though at least one scholar has proposed acknowledging that emphasis on factor one by explicitly adopting a two-factor test.(fn22)
Campbell contained a number of doctrinal developments, some minor and some more major.(fn23) It also reversed the momentum created by two key presumptions in prior case law, namely that commercial uses were presumptively unfair, and that plaintiffs were allowed to presume harm when defendants' uses were commercial.(fn24) In clarifying that transformative use could weigh heavily in favor of fair use, even when uses were commercial,(fn25) the court may have put a great deal of pressure on whether a use was transformative. Indeed, some feared that the term might be so malleable as to be unhelpful.(fn26) The term was considered capable of endless manipulation.(fn27) While there remains debate over whether the transformative use analysis actually plays as important a role as many have asserted, by and large, transformative use remains a crucial aspect of fair use litigation.(fn28)
The inquiry into whether a work is transformative does not take place in a doctrinal vacuum, and should not be tackled in isolation. Many scholars have explored the cultural meanings of fair use, and Michael Madison has suggested that fair use is less a doctrine to be applied rigidly and more "an analytic tool that focuses on social and cultural patterns."(fn29) The emphasis on transformation contains historical aspects-because of the explosion of digital technologies that make transformation quick, easy, and ubiquitous-and it contains cultural dimensions, because of changes in music, art, and other cultural developments.(fn30) Indeed, Campbell takes on special importance in light of what Aram Sinnreich has dubbed "configurable culture," a set of beliefs and practices that point to a "larger cultural shift" in our relationship to media and the arts.(fn31) This cultural shift reflects the coevolution of technology and culture in a way that, per Sinnreich, has redefined the relationship between media production and consumption.(fn32) Campbell, if understood in light of copyright law alone, makes less sense than it does when considered in a broader, more historically attuned context.
Without making a claim that Campbell changed the world-a claim that might actually be defensible, but which I do not take pains to defend here-it is no exaggeration to say that since Campbell was decided, the world has fundamentally changed, in ways that may well matter for copyright law. Historically, Campbell feels more august than its age of twenty-one years old. To put Campbell in historical context, when it was decided, the North American Free Trade Agreement was only three months old. The murder of Nicole Brown Simpson and Ronald Goldman would take place a few months after Campbell, in June 1994. And later still would come: the cloning of Dolly the sheep (1995); the introduction of the Euro (1999); and, for lack of a more nuanced way to put it, the internet as we now know it, with webmail and Google search (roughly 1995-1998).(fn33) The seeds of the digital revolution had been planted, but had not yet borne fruit, at least not in any way that the mass population experienced in their daily lives.(fn34) iTunes, a consumer staple in 2015, had not yet come close to being created.(fn35) In 1994, the "worldwide web" was (depending on whose account and definition one selects) about three years old, and although Mosaic, a user-friendly browser, had just been created, to be followed the next year by Netscape Navigator, few in the general population had internet access, let alone email accounts and other digital technologies.(fn36) It would not be until 1995 that the "world wide web" became commercialized for the general public.(fn37) There was a futuristic, breathless quality to accounts of what the internet might one day do, as this hybrid piece of journalism-slash-science-fiction reveals: Today, even privately owned desktop computers can become Internet nodes. You can carry one under your arm. Soon, perhaps, on your...
