Washington Law Review

Essay

Foreword: Fair Use in the Digital Age, and Campbell v. Acuff-Rose at 21

June 30, 2015 | 90 Wash. L. Rev. 579

Abstract: Most students who study intellectual property in law school read Campbell v. Acuff-Rose Music, Inc., 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.” 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. 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. 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. 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. 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. Of course, with the litigants’ hit singles including the embarrassingly successful song, “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. 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, 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. 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.

 

Download Full Essay