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U.S. Supreme Court recently held that a parody by the rap group
2 Live Crew of Ray Orbison's song "Oh, Pretty Woman" was
"fair use" and thus did not infringe the copyright. Although
the court insisted that it was not evaluating the quality of the
parody, I argue that it does in fact make several aesthetic evaluations
and sometimes even seems to praise the content of the parody. I
first consider the stated reasons for the claimed refusal of the
court to evaluate aesthetic quality. Second, I examine the evaluations
which the court in fact does make, at least some of which are clearly
aesthetic evaluations. I then argue that aesthetic value judgments
are both necessary and possible for determinations of "fair
use" for such works as the "Pretty Woman" parody.
Page numbers from the original publication are indicated in the text as follows: /p. x
numbers are hyperlinked to the notes at the end of this document
and are indicated in the text as follows: (x)
/p. 125 The rap group 2 Live Crew recorded a parody of Ray Orbison's song "Oh, Pretty Woman" in 1989. Among the more charming lyrics in the parody are the following:
Big hairy woman come on in
And don't forget your bald headed friend
Hey pretty woman let the boys
Two timin' woman girl you know you ain't right
Two timin' woman you's out with my boy last night
Two timin' woman that takes a load off my mind
Two timin' woman now I know the baby ain't mine
Oh, two timin' woman
The U.S. Supreme Court decided in March 1994 that this parody was a "fair use" of the Orbison song and thus did not infringe its copyright. (2) in a unanimous opinion written by Justice David Souter, the court insisted that it was not "evaluating (the) quality" of the parody, (3) despite the holding in favor of 2 Live Crew.
But the court, despite this protestation, does in fact make several aesthetic evaluations in this decision and sometimes even seems to praise the content of the parody. I first will consider the stated reasons for the claimed refusal of the court to evaluate aesthetic quality. Second, I will examine the evaluations which the court in fact does make, at least some of which are clearly aesthetic evaluations. I then will argue that aesthetic value judgments are both necessary and possible for determinations of "fair use" for such works as the "Pretty Woman" parody.
THE RELUCTANCE TO JUDGE AESTHETIC VALUE
Judges traditionally have tried to avoid making judgments of aesthetic value in the variety of contexts where such issues arise, such as copyright, customs law, and obscenity. (4) Indeed, in justifying his refusal to evaluate the quality of the 2 Live Crew parody, Justice Souter quotes from a 1903 opinion by Justice Oliver Wendell Holmes:
[I]t would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of (a work), outside of the narrowest and most obvious limits. At the one extreme some works of genius would be sure to miss appreciation. Their very novelty would make them repulsive until the public had learned the new language in which their author spoke. (5)
In addition to Holmes' oft-cited rationale, another explanation for this judicial reluctance is the pervasive view among judges and others in the legal community that judgments of aesthetic value are "subjective" (6) and thus presumably impossible for courts to determine according to objective standards for judicial reasoning.
Justice Souter, in the Pretty Woman decision, does slip in a small but telling reference to the low or at least modest aesthetic value of the parody. He says in passing that "we might not assign a high rank to the parodic element here." (7) but he also seems to subscribe to the position that aesthetic value is a matter of subjective "taste" and thus is not an appropriate subject upon which judges should rule. He says, for example, that the court need only find that the 2 Live Crew version includes the necessarily element of "criticism of the original" to constitute parody and thus fair use. He goes on to say ". . . having found it [the elements of criticism] we will not take the further step of evaluating its quality . . . Whether . . . parody is in good taste or bad does not and should not matter to fair use." (8)
Justice Souter does not in this passage expressly say that aesthetic evaluations are necessarily subjective. Indeed, the word "subjective" never appears in this decision. But the construction of these sentences suggests that he equates a determination of aesthetic value with an exercise of taste. Taste, in every day language as well as the language of the aesthetician, suggests subjectivity. Nowhere does Justice Souter explain why aesthetic value is necessarily just a matter of subject taste. He merely makes the assertion as if it were self-evident.
Subjective and objective theories of aesthetic value have been much-discussed in philosophical literature. An objective theory claims that aesthetic value somehow resides in properties of the work itself, such that any reasonably competent observer would find them. In contrast, a subjective theory claims that aesthetic value is simply a matter of the psychologi-/p. 127 cal effect on or the attitude of the observer, and these vary considerably from observer to observer. (9) subjective theories (10) gain plausibility from the difficulty we have in determining what possible basis objective evaluations could have. Assessing aesthetic value does not seem to be the same sort of process as determining the temperature of a liquid in a test tube. The subjectivist has an easy explanation for the extensive disagreement in aesthetic judgments, both within our own time and certainly throughout history. If what makes a work "good" is simply one's own taste, one's own personal reaction to a work, it is easy to explain why there is so much variation in our assessment of the value of works of art.
The objectivist (11) acknowledges that it might be difficult to determine the grounds for objectivity and (at least in principle) the possibility of agreement on the value of a work. But just because it is difficult, does not mean it is impossible. The fact that we do reach agreement on the value of so many works suggests that somehow there is an objective basis for our judgments. We think Van Gogh was a great painter and Baryshnikov a great dancer, not because they have good press agents, but because they really are great.
The reluctance of judges to make aesthetic evaluations would be understood as a belief that it would be inappropriate to impose personal standards of taste in a judicial forum. Even if a judge believed objective aesthetic judgments were possible, the difficulty of supporting such judgments also might lead them to decline to do so in their judicial capacity.
The reluctance of judges to make aesthetic evaluations could be understood as a belief that it would be inappropriate to impose personal standards of taste in a judicial forum. Even if a judge believed objective aesthetic judgments were possible, the difficulty of supporting such judgments also might lead them to decline to do so in their judicial capacity.
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