The Time the Supreme Court Ruled in Favor of 2 Live Crew
At the peak of 2 Live Crew's popularity, their music was about as well known in the courts as it was on the radio. The Miami rap group was famous for their bawdy and sexually explicit music that occasionally led to arrests and fines under some states' obscenity laws. In 1987, a record store clerk in Florida was charged with a felony (and later acquitted) for selling the group's debut album to a 14-year-old girl. The next year, a store in Alabama was fined for selling their record to an undercover cop.
Because of the group's notorious reputation, a few counties in Florida even tried to outright ban their 1989 album As Nasty As They Wanna Be. In 1990, the Broward County Sheriff's Office arrested two of the band's members for a nightclub performance because a Federal district judge there had ruled their music to be obscene. In 1992, a circuit appeals court overturned that judge's ruling, and the Broward County court's efforts to lodge an appeal to the Supreme Court failed. However, 2 Live Crew would soon be in front of the Highest Court in the Land for another issue.
In 1989, 2 Live Crew made a non-explicit version of their hit album, cheekily titled As Clean As They Wanna Be. There was only one song on that record that was not included on the explicit version: a parody of Roy Orbison's “Oh, Pretty Woman.” The unmistakable bassline of the classic remains, but the group used lyrics that were far more ribald.
2 Live Crew reached out to the publishing company that owned the original song, Acuff-Rose Music, asking for permission and promising royalties and songwriting credits. Acuff’s legal department retorted that, while they were “aware of the success enjoyed by ‘The 2 Live Crews’ [sic],” they “cannot permit the use of a parody of ‘Oh, Pretty Woman.’” (Orbison died a year before Acuff-Rose received the request.)
The band put the parody on the low-selling “clean” version of As Nasty As They Wanna Be anyway. The next year, Acuff-Rose sued.
2 Live Crew’s attorneys argued “fair use,” the legal standard allowing for some reproduction of a copyrighted work for things like criticism, parody, or teaching. A Federal appeals court disagreed, ruling that the “blatantly commercial” nature of the record precluded fair use.
After some litigious effort, the case landed before the Supreme Court. There, the question at hand was whether or not a parodist is entitled to fair use protections if they sell their work for a profit. As The New York Times reported, the Court received amicus curiae briefs from Mad Magazine and the Harvard Lampoon arguing that satirical work should be. True to form, The Capitol Steps, a group who performs political song parodies, submitted a brief in song—they sent the Justices a cassette featuring a tune outlining the history of musical parody in the U.S. Acuff-Rose, meanwhile, was backed by briefs from the Songwriters’ Guild and Michael Jackson.
Despite the fact that the Crew had grabbed headlines for their raunchy music, this case was purely based on copyright and not obscenity. Campbell v. Acuff-Rose Music (the Campbell in question refers to Luther Campbell, the group's leader and main producer) was argued on November 9, 1993, and decided on March 7, 1994. The Court voted unanimously in 2 Live Crew's favor to overturn the lower court’s ruling.
Writing for all nine justices, David Souter stated “that a work's commercial nature is only one element” by which to judge fair use. Souter noted the court “might not assign a high rank” to the 2 Live Crew song, but it is a legitimate parody that “can be taken as a comment on the naiveté of the original of an earlier day, as a rejection of its sentiment that ignores the ugliness of street life and the debasement that it signifies.”
In order to illustrate this, Souter included the lyrics to both songs, ensuring that the words “Big hairy woman all that hair it ain't legit; Cause you look like Cousin It" landed on the shelves of every law school library in the country.