Parodies Regained

By DAVID VAN BIEMA

Could it have happened this way? It is dusk at the Supreme Court chambers. Portraits of Oliver Wendell Holmes Jr. and Felix Frankfurter gaze from the walls. A 54-year-old Justice from a rural white state cues up the official Supreme Court CD player, and we hear . . . Luther Campbell's bawdy, silly rap parody of the Roy Orbison classic, Oh, Pretty Woman: "Big hairy woman, you need to shave that stuff/ Big hairy woman, you know I bet it's tough/ Big hairy woman, all that hair ain't legit/ 'cause you look like 'Cousin It.' " Slowly, almost imperceptibly, Justice David Souter's foot begins to tap.

The scene is imaginary, but it captures the spirit of a fascinating Supreme Court decision last week to affirm the borrowing rights of parody, an artistic % form that has long suffered in copyright limbo. Normally, artists are entitled to payment for use of their words, tunes or images. A 1976 law lists some exceptions to this rule, including scholarship and commentary, whereby unpaid excerpting (known as "fair use") is allowed. Parody, however, goes unmentioned. Should send-up artists, whose ranks have included everyone from Lewis Carroll to "Weird Al" Yankovic, be included too? More specifically, can Campbell, best known for his group 2 Live Crew's 1990 victory over obscenity charges, appropriate Orbison's famous bass intro, his drumbeat and his first line without permission from the song's publisher?

Souter, writing for all nine Justices, said yes. Although a lower court must rule on whether Campbell appropriated too much or hijacked potential profits from a nonparodic rap version of the song, Souter held that a careful satirist can borrow from his victim without permission.

Souter's opinion is intellectually frisky as well as legally timely. Parody's legitimacy, he ventures, lies in its "transformative" character, the same alchemy of turning the known into the new that informs all art. Campbell deserves credit both for "shedding light on an earlier work, and . . . creating a new one." Souter then makes an excursion into the social roots of humor: part of the parody's kick, he says, is its explosion of Orbison's unlikely premise of sidewalk romance, which the judge notes, ". . . ignores the ugliness of street life and the debasement that it signifies." Rebutting the argument that the ditty's commercial intent moots its artistic value, Souter playfully enlists Samuel Johnson: " 'No man but a blockhead ever wrote, except for money.' " Finally, the court's Latin scholar scores head-banger points for using the phrase "opening bass riff" without quotation marks.

Satirists welcomed the decision, which should aid not only musical lampoonists but also those who work in prose, video and the visual arts. So did rap artists, some of whom, embroiled in controversies regarding obscenity and violence, worry about the racial evenhandedness of the American justice system. Says Courtney Branch, producer of the top-selling acts D.J. Quik and Mad Flava: "I was skeptical of the Supreme Court at first. But I would say to Souter that I thank him for being able to look past the color line to the art and musicians' freedom to say what they would like to say."

With reporting by Greg Aunapu/Miami, Patrick E. Cole/Los Angeles and Kristen Lippert-Martin/Washington