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Both the original (Roy Orbison) version and the Two Live Crew version began, "Pretty woman walking down the street..." Was this seen as copying under the "five word" plagiarism rule?

According to the Supreme Court, the Two Live Crew version veered sharply away from the original, to the point of being "opposite." That is, the original celebrated a white woman, while the Two Live Crew version mocked a black woman. Was this what made it was parody, and after the appeals court decision was overturned, could therefore possibly make it fair use?

In the end, there was a settlement, under which Acuff-Rose, the owner of the original, received no damages, but did receive licensing fees. Two Live Crew had earlier sought (and been refused) such a licensing arrangement, meaning that it got to its starting point. Apparently this was an equitable result given the hazards of further litigation. But was it possible that Two Live Crew could have performed its version "for free" if the appeals court had later found that "parody" made it fair use?

  • What is the five word plagiarism rule? I looked it up, but as far as I can tell, this is an academic standard not a legal standard. – user3851 Jul 4 '16 at 17:27
  • @Dawn: You're right, I believe that it is an academic standard, but that's the one I grew up with. And my confusion was why I asked the question. Actually, I think that it is five consecutive words in a non-standard use. So writing "The United States of America" is not plagiarism (standard phrase) but using Descartes "I think therefore I am." would be plagiarism. – Libra Jul 4 '16 at 18:01
  • There are a few other issues. Your title asks for to explain the key elements. The second paragraph asks whether the opposite-ness made it parody. It says that the appeals court didn't find this to be parody (when in fact, it did, it just didn't think commercial parody could be fair use). – user3851 Jul 4 '16 at 18:40
  • @Dawn: Changed order of wording to bring it in line with my current understanding. Thanks for your help. – Libra Jul 4 '16 at 18:44
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    @Tom ah.. It may just clear up all of your questions to read the opinion :) Campbell v. Acuff-Rose Music, Inc. 510 U.S. 569 (1994). If you want a high level summary, just read the syllabus at the start. – user3851 Jul 5 '16 at 3:42
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This case did not find that Two Live Crew's version was fair use. Rather it held that it could be fair use, contrary to the lower court ruling that its commercial nature precluded a fair use defense based on parody.

The court remanded the case to be considered in light of its holding.

The two parties settled without getting a final decision on fair use. It was never really contested that this work was parody. The issue was whether the commercial nature rendered it unfair. The Supreme Court told the lower courts to assess the taking under the full four-factor fair use analysis and that commercial use doesn't automatically make a parody unfair.

One source of confusion is that you seem to be conflating parody and fair use. Parody is just one purpose (along with criticism, education, and others) that has been generally held to swing the balance in favour of fair use.

Last, the "five word plagiarism rule" is not a legal standard.

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