Whether if Roy Orbison (if he were alive) could be allowed to prevent 2 Live Crew from his material to mock women?
17 U.S.C § 107 states that notwithstanding the provisions of 106 and 106 A, the fair use of a copyrighted work, including such use by reproduction in copies or phone records, or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.
In determining whether the use made of a work in any particular case is a fair use, the factors considered shall include: the purpose or character of the use, including whether such use is commercial or is for nonprofit educational purposes; the nature of the copyrighted work; the amount and substantiality of the portion used concerning the copyrighted work as a whole and the effect of the use upon the potential market for or value of the copyrighted work.
For Roy Orbison to prevent 2 Live Crew from using his material, he must have valid copyright ownership and exclusive rights to the copyrighted work (Dr. Seuss Enterprises L.P v Penguin Books U.S.A Inc,).
Before denying 2 Live Crew permission to use his work, four factors will be considered: the purpose and character of the work, including whether it is for a commercial or nonprofit educational purpose, the nature of the copyrighted work, the amount and substantiality of the portion used concerning the creative work as a whole and the effect of the use upon the potential market for or value of the copyrighted work.
In determining the purpose of the work, fair use, as stated in Section 107, is considered. Fair use includes reporting, teaching, scholarship, research, news reporting, and criticism. Parody is regarded as a way of literally and social objections having a socially significant value as free speech under the First Amendment. The court in MCA Inc v Wilson adopted the ‘conjure up’ test to determine whether the copyrighted work has fulfilled its purpose. If Luther Campbell and 2 Live Crew’s purpose is to transform and conjure up Orbison’s s work, then it amounts to fair use, and Orbison will prevent Luther Campbell and 2 Live Crew from using his work.
Secondly, the work’s nature is considered; information work has a more significant threshold than creative work. Roy Orbison will have to consider whether the 2 Live Crew has published their work or not.
Thirdly, the amount and substantiality of the portion used concerning the creative work are taken into consideration. Roy Orbison will prevent the 2 Live Crew if he can demonstrate ‘substantial similarity’ between the copyrighted work and the allegedly infringing work. As stated in 17 U.S.C § 102, (b) similarity refers to the likeness of expression, not merely resemblance of ideas and concepts. The amount of work used must be reasonable rather than copying the whole creation. If the amount is fair, Roy Orbison cannot prevent the Crew from using his work.
Lastly, the effect of the use of the potential market for or value of the copyrighted work is considered. Unauthorized use is not fair use when the unauthorized use diminishes or negatively impacts the potential sale of the original copyrighted work, interferes with the work’s marketability, and fulfills the original copyrighted work’s demand. Roy Orbison will only be allowed to prevent 2 Live Crew if he has not authorized their use and affects the marketability value.
Parody is considered as criticism which benefits the literary work in society. Parody is as essential as Free speech in the First Amendment of the Constitution. Roy Orbison will not prevent the Crew if their work is a parody because it is vital to society.
What happens if Roy Orbison finds the material offensive?
When determining fair use of work, the purpose of the work is considered. The ‘conjure up’ test is applied to determine the degree of transformation accomplished by the new work if the new work has a different purpose or function compared to the original work ( Leibovitz v Paramount Pictures Corporation).
If Roy Orbison examines the work and finds that the material is offensive, he can prevent the work. The transformative test applies when the work is used to criticize or create a new perspective on the original work. If the new work created by Luther Campbell and the Crew is offensive, then Roy Orbison can claim to refuse to authorize the use of his work.
In conclusion, if Roy Orbison finds the new material offensive, he can refuse the use of his work. The purpose of the new work should be to criticize and not offend people or the original work’s creator.
MCA, Inc v Wilson, 677 F.2d 180, 184 (2d Cir. 1981)
Warner Bros Inc,. v American Broadcasting Cos, 523 F. Supp, 611, 617
Dr. Seuss Enterprises L.P V Penguin Books U.S.A Inc. 924 F. Supp. 1559 (S.D Cal.1996)
Leibovitz v Paramount Pictures Corporation 137 F. 3d 109 (1996)
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