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Judging Aesthetic Value:

2 Live Crew, Pretty Woman,

and the Supreme Court

by Julie Van Camp

1995-96 Entertainment, Publishing and the Arts Handbook

edited by Stephen F. Breimer, Robert Thorne, and John David Viera

New York: Clark, Boardman, and Callaghan, 1995 (pp. 125-135)

Copyright Julie C. Van Camp 1995

This article may be printed or downloaded for personal, scholarly, or educational use, but only if the full citation, copyright notice, and this permission notice are included in full. It may not be sold or otherwise used for commercial purposes. For permission for commercial reproduction, please contact the author.


ABSTRACT

The 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.

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Page numbers from the original publication are indicated in the text as follows: /p. x

Endnote numbers are hyperlinked to the notes at the end of this document and are indicated in the text as follows: (x)

Judging Aesthetic Value:

2 Live Crew, Pretty Woman,

and the Supreme Court

/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
Jump in
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
Oh pretty woman. (1)

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.

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/p. 126

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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JUDICIAL EVALUATIONS

Despite Justice Souter's protestations, the Pretty Woman decision includes numerous judgments of value. Some are of social or economic value, but arguably at least some are judgments of aesthetic value.

(1) Originality is a good thing. Works which are original are better than those which are not.

Justice Souter makes several references to the value of originality. Copyright protection, of course, is available only to "original works of authorship." (12) this requirement is justified by appeal to the purpose of copyright protection, namely, the encouragement of creativity, which is presumed to be in the interests of the country. (13) This assessment of the value of originality in works of authorship is consistent with the evaluation of works of art in society generally and is accepted without question by Justice Souter.

Originality, as Justice Souter makes clear, is not the same thing as historical novelty. He cites approvingly the language of an 1845 decision:

". . . (i)n truth, in literature, in science and in art, there are, and can be, few, /p. 128 if any things, which in an abstract sense, are strictly new and original throughout. Every book in literature, science and art, borrows, and must necessarily borrow, and use much which was well known and used before." (14)

Indeed, novelty for its own sake is more likely just a gimmick and not as good as genuine originality.

(2) Works which are "transformative" of an existing work are better than works which merely "supersede" the original work.

"Transformative value," for Justice Souter, is value that "adds something new, with a further purpose of different character, altering the first with new expression, meaning, or message." (15) This "transformative value" is a major factor for him in determining the existence of fair use by a work which parodies another, and it is superior to something which "merely" supplants or "supersedes" the original work. (16) His choice of the word "merely" indicates a clear ranking of value among the various types of works which somehow use a pre-existing work of art.

(3) Works created for non-profit uses are better than works created for commercial gain.

Justice Souter's decision explains that the commercial nature of the rap group parody does not, in and of itself, defeat the claim of "fair use." Indeed much of his argument is devoted to clarifying what appear to be misunderstandings of previous decisions suggesting that commercial gain would obviate any claim of "fair use." (17)

But Justice Souter does acknowledge that the commercial nature of a work is "one element" in the determination and counts against a finding of 'fairness," in comparison with a non-profit or educational use. (18) This judgment can be seen as one of social value - balancing the purposes of copyright with the importance of promoting an open exchange of ideas in society. Thus, although not obviously a judgment of aesthetic value, it does appear to be a judgment ranking the social value of various works.

(4) Works which provide social benefit are better than those which do not.

Justice Souter praises the "social benefit [of parody] by shedding light on an earlier work, and, in the process, creating a new work." (19) Because of this social benefit, the creator of the parody receives the benefit of being considered "fair use" of the copyrighted original and does not have to pay damages for infringement. Even though, as noted, the social benefit of commercial endeavors is less than that of non-profit or educational uses, Justice Souter clearly recognizes a variety of social values in making his determination that the 2 Live Crew parody was "fair use."

The social value of a work of art has long played an important role in determinations of the aesthetic value of a work. Philosophers and theorists as diverse as Plato and Leo Tolstoy have argued that the value of art in general, as well as particular works, should be judged in terms of their value to society in providing knowledge and moral insight. (20) Justice Souter seems to have no difficulty attributing social value to works of art, but /p. 129 this alone would amount to attributing aesthetic value to those works, according to this philosophical tradition.

The value of "critical comment" for Justice Souter apparently outweighs the social detriment of degrading images of women. An astonishing thing about this decision is the absence of any assessment of the social detriment of the degrading images of women in the parody. Justice Souter painstakingly analyzes the nature of the parody in terms that are clearly evaluative. He might have included a passing reference or an elliptical comment labeled as irrelevant to the holding of the case. He might have said explicitly that the social detriment of the degrading images is outweighed, unfortunately, by other concerns for social comment and freedom of expression. He might have noted his reluctant conclusion that this social detriment does not destroy the justifiability of fair use. That he did not take some opportunity to express his distaste for these degrading images of women is troubling, especially since he does talk explicitly of other social values of parody in justifying the decision.

(5) Works which provide "critical comment" on another work are better than those which do not.

Justice Souter has no difficulty finding a "critical element" in the 2 Live Crew version sufficient to make it a parody entitled to the "fair use" exemption. Lower courts detailed the nature of this critical element, which is cited approvingly by Justice Souter. The district court, for example, said the work "quickly degenerate[s] into a play on words, substituting predictable lyrics with shocking ones . . . [that] derisively demonstrat[e] how bland and banal the Orbison song seems to them." (21) The characterization as "bland and banal" is not only an explanation of the 'critical element," but is also a judgment of negative (or low) aesthetic value. (22)

In explaining the necessary critical element, Justice Souter also quotes approvingly a judge who dissented in the Court of Appeals decision (which had held against the rap group). The dissenting judge said the parody "was clearly intended to ridicule the white-bread original" and "reminds us that sexual congress with nameless streetwalkers is not necessarily the stuff of romance and is not necessarily without its consequences." (23)

The reference to the "Pretty Woman" original as "white-bread" is another judgment of aesthetic value. Along the same lines, Justice Souter himself adds that the 2 Live Crew lyrics ". . . can be taken as a comment on the naiveté of the original or an earlier day, as a rejection of its sentiment that ignores the ugliness of street life and the debasement that it signifies." (24) The terms "naiveté" and "rejection" are clearly judgments of negative aesthetic value here.

Two sorts of judgments are made in these remarks. The first is whether /p. 130 there is criticism at all in the parody of the original. To determine that something is "criticism" (and not merely comments or remarks that would not rise to the level of "criticism" justifying fair use) requires sophisticated analysis of verbal usage. This is not assessed by any empirical or statistical method from the laboratory of the social scientist.

The second sort of judgment consists of the actual critical comments in that criticism. For example, the statement that the parody "was clearly intended to ridicule the white-bread original" includes two judgments. First, it is an assessment by the judge that the parody counts as criticism of the original sufficient to support fair use. Second, it is an assessment by the judge of the specific characteristics of the parody/criticism, viz., that it "ridicules" the original and that the original is "white-bread." Those words do not appear anywhere in the lyrics of the 2 Live Crew song. The judge (here, the dissenter in the Court of appeals) is making this interpretation himself, but clearly he (and other judges who cite it) think it is warranted. No one seems worried that this is mere "subjective taste" that supposedly is outside the purview of the court.

Similarly, Justice Souter's remarks include both types of judgments. When he says the parody's lyrics "can be taken as a comment on the naiveté of the original" he is saying (at least) two things. First, Justice Souter is making an assessment that the parody counts as criticism sufficient to support fair use. Second, he is making an assessment of the specific characteristics of the parody/criticism, viz., that it comments on "the naiveté" of the Orbison original. The word "naiveté" nowhere appears in the lyrics of the 2 Live Crew. Justice Souter makes this interpretation himself. He does not seem worried that this might be mere "subjective taste." Further, he implies that any reasonable person who considered the lyrics of the two songs would reach the same conclusion, the stance of an objectivist in aesthetic value.

An editorial praising the 2 Live Crew decision in the Los Angeles Times said that Justice Souter had "a discriminating literary eye." (25) I agree. The examples just cited leave no doubt that Justice Souter is indeed exercising aesthetic judgment in this decision, despite his claims that it would be inappropriate to do so.

Interestingly, an editorial in the New York Times which praised the decision also agreed with Justice Souter's claim that he had avoided assessments of artistic quality and that it was appropriate for him to do so; "Its [the court's] opinion balanced every party's needs without getting the judiciary into the thicket of artistic criticism. With admirable judicial restraint, Justice Souter refrained from evaluating the quality or good taste of the parody at the bar." (26)

The editorial writer seems to agree that judgments of aesthetic quality are subjective judgments of "taste," a claim Souter also made, even though his actual analysis belies his consistency in adhering to this position.

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/p. 131

HOW TO JUDGE AESTHETIC VALUE

Clearly, Justice Souter has made many evaluations that go to the aesthetic value of the works. (27) How can we reconcile these obvious evaluations with his insistence that it is not appropriate for judges to assess aesthetic value? One explanation is that he implicitly adheres to a traditional distinction in the activities of critics: description, interpretation, and evaluation. Traditional objectivist approaches to aesthetics assume that description and perhaps also interpretation are "neutral," that is, that there is one and only one correct interpretation. Under this traditional view, only evaluation involves judgments of aesthetic value.

Justice Souter and the New York Times seem to believe that his analysis consists only of description and interpretation of the parody in question and thus is appropriately objective. But many philosophers have shown that even description and certainly interpretation involve extensive judgments of aesthetic value. (28) In our choices of which features upon which to focus in a description, we are making determinations of which properties are most important. Should we discuss colors and shapes? -- the portrayal of women? -- the portrayal of economic relationships? -- the emotional content? -- the political inspiration? A virtually infinite list of properties can be considered for any given work. Because of the choices that are made in discussing a work in certain terms and not others, there is no such thing as "objective," value-free description or interpretation. Justice Souter's confidence in making descriptions and interpretations blithely ignores the value judgments involved in those assessments.

The belief of Justice Souter (and others) that aesthetic value cannot be determined with objectivity sufficient to satisfy the needs of the court is questionable on other grounds. A closer examination of the 1903 language of Justice Holmes, cited approvingly by Justice Souter, does not support this presumed subjectivity. Indeed, Holmes' plea that the public must first learn "the new language in which their author spoke" before a genius can be appreciated suggests just the opposite. It says that once we have learned to appreciate a work, we all would be able to appropriately assess its excellent quality. In other words, reasonable people - competent observers - could all come to the same conclusion with regard to the work. But this is precisely "objectivity" in aesthetic value. Justice Holmes' own words support the possibility of objective determinations of aesthetic value, not their hopeless subjectivity!

Justice Kennedy, in his concurring opinion, expresses concerns that highlight the importance of confronting the necessity of making judgments of aesthetic value in parody cases. He cautions that the court might have made it too ". . . easy for musicians to exploit existing works and then later claim that their rendition was a valuable commentary on the /p. 132 original. Almost any revamped modern version of a familiar composition can be construed as a 'comment on the naiveté of the original' . . ." (29)

Justice Kennedy is concerned about "profiteers" and "just any commercial take-off . . . rationalized post hoc as a parody." (30) His advise is to ensure that the court does not "allow any weak transformation to qualify as parody." (31) These warnings clearly show the importance of assessing the quality of the parody, not merely the fact of parody. For Kennedy, it is not enough to determine that something makes a critical comment. It must also be a good (strong) critical comment to qualify for the "fair use" exemption. This does not mean that copyright protection should extend only to outstanding works. But it does necessitate some judgment of aesthetic value to meet Justice Kennedy's well-taken concerns.

How should judges reason when faced with issues calling for the determination of aesthetic value? What should be the basis for their determinations? Can and should such legal decisions be based strictly on application of legal rules or must judges necessarily also appeal to the aesthetic view of their community and themselves in making determinations affecting art? Is it possible to codify aesthetic value so that it can be applied consistently by all judges?

Governmental agencies in related areas, most notably state and Federal agencies in the arts, regularly make decisions according to objective standards of "artistic excellence and artistic merit," as determined by panels of experts in each field. (32) These grant decisions primarily involve the awarding of discretionary grant funds to private citizens, while copyright cases involve determinations by courts of law concerning intellectual property rights. Even so, copyright law could benefit from the experience of related governmental cultural agencies in the use of experts to identify and apply objective standards, and the justifiability of the use of such objective standards by a governmental body.

The courts have in place established roles for experts of all kinds. Their use in cases involving issues of aesthetic value would seem both appropriate and necessary. I submit that use of these expert assessments, combined with the close textual analysis and interpretation already demonstrated by Justice Souter in this decision, would be an appropriate activity for the courts.

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REFERENCES

"A 'Pretty' Parody Stands Up," (Editorial) Los Angeles Times (March 9, 2023), p. B14.

Barkin, Gary M., "'Pretty Woman' and the Parody Defense to Copyright Infringement," 31 Court Rev. 18 (Spring 1994).

/p. 133

Battin, Margaret P., et al., Puzzles about Art: An Aesthetics Casebook (New York: St. Martin's Press, 1989).

Beardsley, Monroe C., Aesthetics: Problems in the Philosophy of Criticism, 2d ed. (Indianapolis: Hackett Publishing Co., Inc., 1958, 1981).

Bleistein v. Donaldson Lithographing Co., 188 U.S. 239 (1903).

Campbell v. Acuff-Rose Music, Inc., 114 S.Ct. 1164, 128 L.Ed. 2d 500, 62 U.S.L.W. 4169 (1994).

Chandler, Henry P., "The Attitude of the Law toward Beauty," 8 American Bar Association J. 470 (1922).

Copyright Law of 1976, Pub.L.No. 94-553 (Oct. 19, 1976), 90 Stat. 2541, 17 U.S.C. 101 et seq.

Dukeminier, J.J., "Zoning for Aesthetic Objectives: A Reappraisal," 20 Law and Contemp. Probs. 218 (1955)

Emerson v. Davis, 8 F. Cas. 615 (No. 4,436) (CCD Mass. 1845).

Fisher, John Andrew, "Criticism and the Subjectivity of Art," in Reflecting on Art (Mountain View, CA: Mayfield Publishing Co., 1993), pp. 8-9.

Gass, William H., "Goodness Knows Nothing of Beauty: On the Distance between Morality and Art," Harper's Magazine (April, 1987).

Goldstone, Harmon H., "Aesthetics in Historic Districts," 36 Law and Contemp. Probs. 379 (Summer 1971).

Greenhouse, Linda, "Ruling on Rap Song, High Court Frees Parody from Copyright Law," New York Times (March 8, 2023), pp. A1, A12.

Hospers, John, "Problems of Aesthetics," in The Encyclopedia of Philosophy, Vol. 1, ed. by Paul Edwards (New York: Macmillan Publishing Co., Inc.), pp. 35-56.

Karlen, Peter H., "Aesthetic Quality and Art Preservation," 41 J. Aesthetics & Art Criticism 309 (Spring 1983).

Leval, Pierre N., "Campbell v. Acuff-Rose: Justice Souter's Rescue of Fair Use," 13 Cardozo Arts and Entertainment L.J. 19 (1994)

Miller v. California, 413 U.S. 15 (1973).

"Parody May Be Protected, High Court Rules," The News Media & The Law 22 (Spring 1994).

"The Supreme Form of Flattery," (Editorial), New York Times (March 9, 2023), p. B16.

Toedt, D.C., "Oh, Pretty Woman: Muddying Software Copyright Even /p. 134 Further with 'Transformative Fair Use,'" 11 The Computer Lawyer 15 (June 1994).

Tolstoy, Leo, What is Art? Trans. By Almyer Maude (New York: Macmillan Publishing Co., 1960) (originally published 1896)

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NOTES

(1) Quote in Luther R. Campbell v. Acuff-Rose Music, Inc., 114 S.Ct. 1164, 127 L.Ed. 2d 500, 62 U.S.L.W. 4169, 4177, appendix B (U.S. 1994) Return to text

(2) Campbell v. Acuff-Rose, 62 U.S.L.W. 4169 (1994). This was the first time that the Court had considered the nature of parody under the Copyright Act of 1976, 17 U.S.C. 107 (1988 ed. and Supp. IV). Return to text

(3) 62 U.S.L.W. at 4173 Return to text

(4) Peter H. Karlen has summarized areas of law where assessments of quality are necessary. In customs law, for example, objects which are among the "fine arts" qualify for exemption from the normal duties on imports. In the famous case of Miller v. California, 413 U.S. 15 (1973), the U.S. Supreme Court upheld laws prohibiting obscene, exempting works of "serious artistic value," See supra under "REFERENCES," Karlen at 310-11. Return to text

(5) Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 251 (1903), quoted in Campbell v. Acuff-Rose, 62 U.S.L.W. at 4173 (1994). Return to text

(6) Another statement early in the century is typical of the legal attitude toward aesthetic value. Henry P. Chandler said in 1922 that "beauty" lacks the sort of objective standard which could be used for regulation. Instead he notes that a standard is evolving through public opinion. Chandler, at 473-74.

One commentator in the context of aesthetic value judgments for historic preservation regulation said that decisions are difficult as "they hinge primarily on so subjective a criterion as an aesthetic judgment." Goldstone, at 380.

J.J. Dukeminier acknowledges that rationality is possible in making aesthetic evaluations, although absolute standards are not, but his argument is marred by a pervasive confusion of the psychology and the philosophy of art. Dukeminier, at 228-29. Return to text

(7) Campbell v. Acuff-Rose, 62 U.S.L.W. at 4173 (1994). Return to text

(8) Id. Return to text

(9) For good overviews of the subjectivist-objectivist debate, see Hospers, at 52-55; Battin, at 33-37. Return to text

(10) One of the best-known subjectivists is David Hume, an eighteenth-century Scottish philosopher. He articulated his position most clearly in "Of the Standard of Taste," in four dissertations, 1757. See also discussions of subjectivity ("Psychological Definitions") in Beardsley, at 512-15; Battin, at 34-35. Return to text

(11) Objectivists include C.E.M. Joad and Monroe C. Beardsley. Battin, at 33-35. Return to text

(12) Copyright Act of 1976. 17 U.S.C. 102(a). although the word "original" only appeared in the Federal statute for the first time in the 1976 Copyright Revision, Congress made clear that it was merely codifying existing law. "The phrase 'original works of authorship,' which is purposely left undefined, is intended to incorporate without change the standard of originality established by the courts under the present (1909) copyright statute." H.R. Rep. No. 94-1476, p. 51 (1976); S. Rep. No. 94-473, p. 50 (1975) Return to text

(13) Justice Souter cites the clause of the constitution authorizing copyright: ". . . copyright's very purpose, '[t]o promote the Progress of Science and useful Arts. . . . ' U.S. Const., Art. 1 Sec. 8, cl. 8." Campbell v. Acuff-Rose, 62 U.S.L.W. at 4171 (1994). He also cites approvingly a 1990 decision that refers to "the very creativity which . . . [the 1976 Copyright Law] is de-/p. 135 signed to foster." Quoting from Stewart v. Abend, 495 U.S. 207, 236 (1990) (italics added by this author). Campbell v. Acuff-Rose, 62 U.S.L.W. at 4172. . Return to text

(14) Emerson v. Davis, 8 F. Cas. 615, 619 (No. 4,436) (CCD Mass. 1845), quoted in Campbell v. Acuff-Rose, 62 U.S.L.W. at 4171 (1994). Return to text

(15) Campbell v. Acuff-Rose, 62 U.S.L.W. at 4172 (1994). Return to text

(16) Id. The language "merely superseding" is used again at 4175. Return to text

(17) Leval, at 19-20, argues that Souter's opinion corrected the "overreaction" to the supreme Court decision in Sony Corp. of America v. Universal city Studios, Inc., 464 U.S. 417 (1984), which included the dictum that "every commercial use of copyrighted material is presumptively unfair," id. at 451. Return to text

(18) Campbell v. Acuff-Rose, 62 U.S.L.W. at 4174 (1994). Justice Kennedy, in his concurring opinion, goes even further in stressing the importance of caution in making these assessments of commercial gain. He expresses concern that the court's decision not be exploited by "profiteers" or "just any commercial take-off [that] is rationalized post hoc as a parody." 62 U.S.L.W. at 4178. Return to text

(19) Id. at 4172. Return to text

(20) See Plato, The Republic, especially Book II; Tolstoy, especially chapter 15. Critics of the view that the aesthetic value of a work is a function of its moral value include Gass and the novelist Oscar Wilde, Preface from The Picture of Dorian Gray. Return to text

(21) 754 F.Supp. 1150, 1155 (M.D. Tenn. 1991), quoted in Campbell v. Acuff-Rose, 62 U.S.L.W. at 4171 and again at 4173 (1994). Return to text

(22) I will not take up here the issue of whether a negative aesthetic evaluation (such as "ugliness") constitutes a low level of aesthetic value, negative aesthetic value, or a positive aesthetic disvalue. For a discussion of this issue, see Beardsley, at 546. Return to text

(23) 972 F.2d 1429, 1442 (6th Cir. 1992), quoted in Campbell v. Acuff-Rose, 62 U.S.L.W. at 4173 (1994). Return to text

(24) Campbell v. Acuff-Rose, 62 U.S.L.W. at 4173 (1994). Return to text

(25) "A 'Pretty' Parody Stands Up," (Editorial), Los Angeles Times (March 9, 2023), p. B14. Return to text

(26) "The Supreme Form of Flattery," (Editorial), New York Times (March 9, 2023), p. B16. For a related news report, see Greenhouse. Return to text

(27) Much discussion has been devoted elsewhere to the distinctions between artistic and aesthetic value, but it is beyond the scope of this paper to explore those differences here. Return to text

(28) See e.g., Fisher, at pp. 8-9. Return to text

(29) Campbell v. Acuff-Rose, 62 U.S.L.W. at 4178 (1994). Return to text

(30) Id. Return to text

(31) Id. Return to text

(32) The authorizing legislation for the National Endowment for the Arts requires that
"artistic excellence and artistic merit are the criteria by which applications are judged. . . ." 20 U.S.C. 954(d). Return to text

April 1995

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