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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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