--------No. 92-1292--------

[March 7, 1994]

Justice Kennedy, concurring.

I agree that remand is appropriate and join theopinion of the Court, with these further observationsabout the fair use analysis of parody.

The common-law method instated by the fair useprovision of the copyright statute, 17 U. S. C. 107(1988 ed. and Supp. IV), presumes that rules willemerge from the course of decisions. I agree thatcertain general principles are now discernable to definethe fair use exception for parody. One of these rules, asthe Court observes, is that parody may qualify as fairuse regardless of whether it is published or performedfor profit. Ante, at 22. Another is that parody mayqualify as fair use only if it draws upon the originalcomposition to make humorous or ironic commentaryabout that same composition. Ante, at 10. It is notenough that the parody use the original in a humorousfashion, however creative that humor may be. The parody must target the original, and not just its generalstyle, the genre of art to which it belongs, or society as a whole (although if it targets the original, it may targetthose features as well). See Rogers v. Koons, 960 F. 2d301, 310 (CA2 1992) (-[T]hough the satire need not beonly of the copied work and may . . . also be a parodyof modern society, the copied work must be, at least inpart, an object of the parody-); Fisher v. Dees, 794 F. 2d432, 436 (CA9 1986) (-[A] humorous or satiric workdeserves protection under the fair-use doctrine only ifthe copied work is at least partly the target of the workin question-). This prerequisite confines fair useprotection to works whose very subject is the originalcomposition and so necessitates some borrowing from it. See MCA, Inc. v. Wilson, 677 F. 2d 180, 185 (CA2 1981)(-[I]f the copyrighted song is not at least in part anobject of the parody, there is no need to conjure it up-);Bisceglia, Parody and Copyright Protection: Turning theBalancing Act Into a Juggling Act, in ASCAP, CopyrightLaw Symposium, No. 34, pp. 23-29 (1987). It alsoprotects works we have reason to fear will not belicensed by copyright holders who wish to shield theirworks from criticism. See Fisher, supra, at 437 (-Self-esteem is seldom strong enough to permit the grantingof permission even in exchange for a reasonable fee-);Posner, When Is Parody Fair Use?, 21 J. Legal Studies67, 73 (1992) (-There is an obstruction when theparodied work is a target of the parodist's criticism, forit may be in the private interest of the copyright owner,but not in the social interest, to suppress criticism ofthe work-) (emphasis omitted).

If we keep the definition of parody within these limits,we have gone most of the way towards satisfying thefour-factor fair use test in 107. The first factor (thepurpose and character of use) itself concerns the defini-tion of parody. The second factor (the nature of thecopyrighted work) adds little to the first, since -parodiesalmost invariably copy publicly known, expressiveworks.- Ante, at 17. The third factor (the amount andsubstantiality of the portion used in relation to thewhole) is likewise subsumed within the definition ofparody. In determining whether an alleged parody hastaken too much, the target of the parody is what givescontent to the inquiry. Some parodies, by their nature,require substantial copying. See Elsmere Music, Inc. v.National Broadcasting Co., 623 F. 2d 252 (CA2 1980)(holding that -I Love Sodom- skit on -Saturday NightLive- is legitimate parody of the -I Love New York-campaign). Other parodies, like Lewis Carroll's -YouAre Old, Father William,- need only take parts of theoriginal composition. The third factor does reinforce theprinciple that courts should not accord fair use protec-tion to profiteers who do no more than add a few sillywords to someone else's song or place the charactersfrom a familiar work in novel or eccentric poses. See,e.g., Walt Disney Productions v. Air Pirates, 581 F. 2d751 (CA9 1978); DC Comics Inc. v. Unlimited MonkeyBusiness, Inc., 598 F. Supp. 110 (ND Ga. 1984). But, asI believe the Court acknowledges, ante, at 18-20, it is byno means a test of mechanical application. In my view,it serves in effect to ensure compliance with the target-ing requirement.

As to the fourth factor (the effect of the use on themarket for the original), the Court acknowledges that itis legitimate for parody to suppress demand for theoriginal by its critical effect. Ante, at 22-23. What itmay not do is usurp demand by its substitutive effect. Ibid. It will be difficult, of course, for courts to deter-mine whether harm to the market results from aparody's critical or substitutive effects. But again, if wekeep the definition of parody within appropriate bounds,this inquiry may be of little significance. If a worktargets another for humorous or ironic effect, it is bydefinition a new creative work. Creative works cancompete with other creative works for the same market,even if their appeal is overlapping. Factor four thusunderscores the importance of ensuring that the parodyis in fact an independent creative work, which is whythe parody must -make some critical comment orstatement about the original work which reflects theoriginal perspective of the parodist-thereby giving theparody social value beyond its entertainment function.- Metro-Goldwyn-Mayer, Inc. v. Showcase Atlanta Coopera-tive Productions, Inc., 479 F. Supp. 351, 357 (ND Ga.1979).

The fair use factors thus reinforce the importance ofkeeping the definition of parody within proper limits. More than arguable parodic content should be requiredto deem a would-be parody a fair use. Fair use is anaffirmative defense, so doubts about whether a given useis fair should not be resolved in favor of the self-pro-claimed parodist. We should not make it easy formusicians to exploit existing works and then later claimthat their rendition was a valuable commentary on theoriginal. Almost any revamped modern version of afamiliar composition can be construed as a -comment onthe naivete of the original,- ante, at 13, because of thedifference in style and because it will be amusing to hear how the old tune sounds in the new genre. Just the thought of a rap version of Beethoven's Fifth Symphony or -Achy, Breaky Heart- is bound to make people smile. If we allow any weak transformation toqualify as parody, however, we weaken the protection ofcopyright. And underprotection of copyright disservesthe goals of copyright just as much as overprotection, byreducing the financial incentive to create.

The Court decides it is -fair to say that 2 Live Crew'ssong reasonably could be perceived as commenting onthe original or criticizing it, to some degree.- Ante, at13 (applying the first fair use factor). While I am notso assured that 2 Live Crew's song is a legitimateparody, the Court's treatment of the remaining factorsleaves room for the District Court to determine onremand that the song is not a fair use. As future courtsapply our fair use analysis, they must take care toensure that not just any commercial take-off is rational-ized post hoc as a parody.

With these observations, I join the opinion of theCourt.