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Fair use of a copyrighted work is a complete defense to aclaim of infringement. The fair use defense is codified in the Copyright Act of1976, 17 U.S.C. � 10. Whether a use of another’s copyrighted work iseligible for the fair use defense depends on the user’s purpose. The examples of “purposes” that � 107 specifies aseligible for the fair use defense are “criticism, comment, news reporting,teaching (including multiple copies for classroom use), scholarship, orresearch.” The section does not list parody as eligible for the fair usedefense. However, in 1994, the U.S. Supreme Court in Campbell v. Acutt-RoseMusic, Inc., [FOOTNOTE 1] foundthat parody is eligible for this defense because its purpose is to comment onor criticize the copyrighted work through humor. A recent decision in the U.S. District Court for theSouthern District of New York in Abilene Music, Inc. v. Sony MusicEntertainment, Inc. [FOOTNOTE 2] shows that the standards for determining if a musical work qualifies as aparody and, if so, whether it constitutes fair use of a copyrighted work, aresubtle. Abilene concerned the copying of a portion of the classic song”What a Wonderful World,” most famously recorded by Louis Armstrong. ‘WONDERFUL WORLD’ Abilene Music and the other plaintiffs own the”Wonderful World” copyright and sued music publisher Sony Music Entertainmentand the hip-hop artist Dennis Coles, known professionally as Ghostface Killah,for his song “The Forest.” As the court noted, “Wonderful World” expressesoptimism and celebrates the nature and the beauty of life, which are depictedin its famous opening verse:
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.

The court also cited other lyrics in the song thatunderscore its message of an idyllic world. The court found “The Forest,”by contrast, portrays a darker view of the world, using images of cartooncharacters engaged in acts of violence, sex and crime. “The Forest” begins by parodying the original’sopening lines, using an off-key and sarcastic rendition by an a cappella singer,and changes some of the lyrics to make slang references to marijuana:

I see buds that are green, red roses too I see blunts for me and you And I say to myself, what a wonderful world.

This opening verse is the song’s only use of”Wonderful World” and there is no sampling of “WonderfulWorld,” a common practice in the music industry today. Sony conceded that Abilene had made a prima facie case ofcopyright infringement. The only issue was whether the rap song’s use of thelyrics and music of “Wonderful World” constituted fair use under� 107. FOUR-FACTOR TEST The section provides that in determining whether a use ofwork is a fair use, the following factors must be considered:

(1) the purpose and character of the use, including whethersuch 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 inrelation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for orvalue of the copyrighted work.

The Abilene court recognized that its job was toweigh the fair use factors together, giving none dispositive weight. Both parties recognized that “The Forest” onlyuses a small portion of “Wonderful World.” Interestingly, bothparties thought that fact supported their respective positions. Sony arguedthat “The Forest” constituted fair use because it only quoted fromthe first few lines. Abilene, on the other hand, argued that by only using thefirst three lines of the song, “The Forest” could not be a parody of”Wonderful World”; rather, it was using the famous lines and melodyonly to grab the listener’s attention. The court began its analysis by determining whether”The Forest” is a parody. This formed part of the consideration ofthe first fair use factor: the nature and purpose of the use. The courtexplained that once it is determined that the work at issue is a parody, theconsideration of the other three factors must be informed by the nature ofparodic works in general and that these remaining factors are unlikely tomilitate against a finding of fair use. For example, the second factor, the nature of the originalwork, considers whether the original work is significantly creative and famous.This factor does not weigh heavily in the case of parodies because any workmeriting parody is likely to be creative and well known. Similarly, with thethird factor, the amount and substantiality of the material used, the courtmust take into account that a parody is more likely to copy the”heart” of the original in order to convey its message. Finally, thefourth factor, the effect upon the potential market, is less likely to haveweight in the case of parodies since a parody is unlikely to become asubstitute for the original. TRANSFORMATIVE WORK The court explained that the first factor considers whetherthe new work’s use of the copyrighted work transforms it in some way by addingsomething new or commenting on it. By definition, if the new work is a parodyof the original, the new work is transformative. And finding that the new workis transformative generally means “it is both more deserving of fair useprotection, since it represents true creative effort on the part of its author,and less likely to thwart the purposes of the copyright law by supplanting themarket for the original work.” The court then compared the two works and found thefollowing: (i) “The Forest’s” quotation of “WonderfulWorld” is not a rote imitation, but instead makes key alterations thatchange the meaning from a description of the beauty of nature to an invitationto get high on marijuana; (ii) the most famous recording of “WonderfulWorld” has lushly orchestrated strings playing the melody in a major key,evoking a feeling of peace and harmony, while the lyrics of “TheForest” are recited a cappella, in an off-key, potentially sarcastic tone;(iii) the final line of the quote used in “The Forest” soundspositively ominous, while Wonderful World ascends to the phrase “wonderfulworld,” evincing a happy and optimistic feeling; (iv) the juxtapositionbetween the contrasting worlds described in the two works is further emphasizedby “The Forest” beginning its rap beat and description of a”wonderland” of sex and drugs immediately after the quoted language. Based on these observations, the court concluded that”The Forest” is a parody of “Wonderful World” that bothcriticizes and ridicules the cheerful perspective of the original, and is notjust a satire directed at modern society that uses the melody of a popular songfor the sake of convenience. The court rejected plaintiffs’ argument that”The Forest” cannot be a parody because it only uses three lines ofthe original work, holding that the issue is not how much of the original workis copied, but whether the work directly comments on and/or criticizes thesubstance or style of the original.[FOOTNOTE 3] The court also found that the use of “WonderfulWorld,” by directly commenting on and criticizing the work, differs from ause that merely uses the original work as an ironic or satirical device tocomment on the world at large. Such a use, the court explained, would typicallyrequire a license, such as using the recording of “Wonderful World”in a movie soundtrack accompanying a scene of wartime violence, as was done inBarry Levinson’s film “Good Morning, Vietnam.” SECOND FACTOR With respect to the second fair use factor under � 107, thenature of the original work, Sony conceded that “Wonderful World” wasa significantly creative work and therefore was deserving of copyrightprotection. But, as the court recognized, parodies almost invariably copypublicly known expressive works. The second fair use factor, therefore, carrieslittle weight in the context of parodies.[FOOTNOTE 4] As to the third fair use factor, the amount andsubstantiality of the portion used, the question is whether the parodist tookno more of the distinctive elements of the original work than necessary toevoke the message of the original and to make its parodic point throughtransformation of the original. The Abilene court found that “TheForest” did exactly this by only taking the opening and most recognizableverse of “Wonderful World” and modifying it, in word, melody andstyle, to parody it. The court therefore rejected Abilene’s argument that”The Forest” could not be a parody of “Wonderful World”because it only lifted a small portion of the song. That argument would lead tothe paradoxical result of causing parodists to copy more of the existing workto avoid copyright infringement, but consequently, making their parodies lesstransformative and undermining the very rationale of the fair use defense. Finally, as to the fourth fair use factor, the effect ofthe use on the potential market for the original work, this concerns whetherthe parody will supplant the potential market for the original work. The courtheld that in general, the more transformative the new work, the less likely itwill substitute for the original in the marketplace, and thus the fourth factoris intertwined with the analysis under the first factor. The court then foundthat “The Forest” does not supplant the potential market of”Wonderful World” since no one interested in purchasing a recordingof the original would instead buy the three-line, off-key rendition used in”The Forest.” Plaintiffs argued that “The Forest” transposed”Wonderful World” into a new music genre, from a romantic melody intoa rap song and, therefore, adversely affected the potential market fornon-parody derivative versions of the original. But the court found that”The Forest” was not a rap derivative of the original because it doesnot transport the major elements of it — its bass line, form and refrain –and transform them into a rap song. Instead, “The Forest” simply quotes the lyrics of”Wonderful World,” and, while doing so, stays relatively true to theoriginal’s melody, form and genre. It is only after its brief use of”Wonderful World” that “The Forest” changes its style intoa rap song. Because “The Forest” does not transpose the original intothe hip-hop genre, the court found that it could not possibly supplant themarket for non-parody rap derivatives of “Wonderful World.” CONCLUSION The Abilene application of the fair use analysisshows the interplay between the � 107 factors and illustrates why � 107 requiresa case-by-case analysis. Abilene demonstrates that to be a parodic, andthus a transformative, work, the parody needs to copy enough of the original tomake it clear that it is commenting on and criticizing it. On the other hand, under the Abilene analysis, if awork copies too much of the original, it may be found to not be transformativeor to supplant the market for the original or non-parody derivatives of theoriginal, factors which would weigh against fair use protection. Accordingly, in analyzing the potential strength of a fairuse defense in parodic works, it is necessary to carefully assess thesimilarities and differences between the works and to evaluate whether the workat issue takes enough from the original to parody it, but not so much as tobecome just a satiric or ironic use of the original or to supplant the marketfor the original or derivatives of the original. Neal H. Klausner and Marc J. Rachman are partners atDavis & Gilbert (www.dglaw.com). If you are interested in submitting an article to law.com, please click here for our submission guidelines. ::::FOOTNOTES:::: FN1 510 U.S. 569 (1994). FN2 02 Civ. 2462 (GEL), 2003 U.S. Dist. LEXIS 10366(S.D.N.Y. June 18, 2003). FN3 Citing Campbell, 510 U.S. at 580-81. FN4 Quoting Campbell, 510 U.S. at 586.

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