(dissenting):
I respectfully dissent for the reason that in my view the defendants made a fair and limited use in a reasonable manner of plaintiff’s successful copyrighted work to produce what amounts to a sexual satire or burlesque of contemporary mores by putting a comic or humorous twist on the more conventional Bugle Boy and by parodying the Andrews Sisters’ style, which depended heavily on “boogie-woogie” music. This entitled the defendants to the protection of the “fair use” doctrine as codified in § 101 of the 1976 Copyright Act, 17 U.S.C. § 107. As the majority concedes, a fair use parody need not be directed toward the copyrighted work, see Elsmere Music, Inc. v. National Broadcasting Co., 482 F.Supp. 741, 746 (S.D.N.Y.1980), aff'd, 623 F.2d 252 (2d Cir. 1980); Berlin v. E. C. Publications, Inc., 329 F.2d 541 (2d Cir. 1964). The defendants used only enough of “Bugle Boy” to conjure up a recollection of that image and thereby make possible a parody with a completely new, mocking, satirical turn to it. There is no evidence that the parody caused any damage to the plaintiff. Although “Boogie Woogie Bugle Boy” (plaintiff’s work) and “Cunnilingus Champion of Company C” (defendants’ parody) were both produced in record form, there is no evidence that the latter was capable of serving as a substitute for the former. On the contrary, it is readily apparent from the records and the lyrics that the two songs fill completely different demands and that a purchaser desiring plaintiff’s work would not accept that of defendants as a substitute.
Under the doctrine of “fair use” defendants were entitled to appropriate so much of the copyrighted work as was reasonably necessary to recall it or conjure it up. Berlin v. E. C. Publications, Inc., supra, 329 F.2d at 545. As we stated in Elsmere Music, Inc. v. National Broadcasting Co., 623 F.2d 252, 253 n.1 (2d Cir. 1980):
“Even more extensive use would still be fair use, provided the parody builds upon the original, using the original as a known element of modern culture and contributing something new for humorous effect or commentary.”
This is exactly what was done in the present case. Defendants made limited use of Bugle Boy to create a new and (to many) humorous effect. The lyrics of the two songs are almost entirely different. Indeed only one short phrase (“He’s in the Army now”) is common to both. The rest are not the same. Moreover, much of the similarity in the music of the two tunes is attributable to the “tom-tom” passages in the Andrews Sisters and Midler recordings, as well as in the defendants’ work, which were never copyrighted but were used by Judge Cooper as the basis for his findings. Thus, while I agree with the majority that there is barely sufficient similarity between the music of the two songs to preclude our labelling Judge Cooper’s finding of infringement clearly erroneous, the record indicates that for fair use parodying the defendants only appropriated as much of the original work as was reasonably necessary to recall Bugle Boy.
*189In ruling on the issue of fair use, Judge Cooper held that to qualify as fair use the infringing item must be a burlesque of the copyrighted work itself, not just a use of the copyrighted material to parody something else, stating:
“defendants concede that Champion was not intended to be a parody of Bugle Boy in the sense of taking Bugle Boy out of context in an attempt to hold it up to ridicule. [PTO 3-a-51, 52] Defendants may have sought to parody life, or more particularly sexual mores and taboos, but it does not appear that they attempted to comment ludicrously upon Bugle Boy.” MCA, Inc. v. Wilson, 425 F.Supp. at 453 (footnote omitted).
As the majority recognizes (p. 185, supra), this was error. In Elsmere Music, supra, we held that the song “I Love Sodom” was a fair parody use of “I Love New York” even though Judge Goettel found, 482 F.Supp. at 745, that the former was “an attempt ... to satirize the way in which New York City has attempted to improve its somewhat tarnished image through the use of a slick advertising campaign [and] had nothing to do with . . . the song T Love New York’ itself.” The district court further stated:
“In addition, even if it were found that T Love Sodom’ did not parody the plaintiff’s song itself, that finding would not preclude a finding of fair use. Under the holding of Berlin v. E. C. Publications, Inc., supra, and the criteria set down in section 101 of the 1976 Copyright Act, 17 U.S.C. § 107, the issue to be resolved by a court is whether the use in question is a valid satire or parody, and not whether it is a parody of the copied song itself. To the extent that either MCA or Walt Disney can be read to require that there be an identity between the song copied and the subject of the parody, this Court disagrees.” 482 F.Supp. at 746 (footnotes omitted).
In affirming, we agreed with the district court’s rejection of Judge Cooper’s MCA limitation, stating, “Believing that, in today’s world of often unrelieved solemnity, copyright law should be hospitable to the humor of parody, and that the District Court correctly applied the doctrine of fair use, we affirm on Judge Goettel’s thorough opinion.” 623 F.2d at 253 (footnote omitted). This broader legal concept of parody has been advocated by copyright scholars who have taken a dim view of Judge Cooper’s limitation. See, e.g., Light, Parody, Burlesque, and the Economic Rationale for Copyright, 11 Conn.L.Rev. 615, 631-32 (1979).
Thus in Elsmere we adhered to our views in Berlin v. E. C. Publications, Inc., 329 F.2d 541 (2d Cir. 1964), where we held that certain parody lyrics printed in Mad Magazine, intended to comment humorously on the world of that time and designed to be sung to the tunes of various popular Irving Berlin songs, did not infringe Berlin’s copyright.
Since defendants’ work is clearly a parody or burlesque the next step is to determine whether, in creating Champion, they have taken more of Bugle Boy than is reasonably necessary to “ ‘recall or conjure up’ the original[],” Berlin, supra, 329 F.2d at 545. This will vary according to the situation encountered in each case. Clearly a verbatim copy of both music and lyrics could hardly be defended as a parody, since the effect would be to deprive the copyright owner of the fruits of his labors. On the other hand, a substantial taking for parody purposes is permissible where, as here, the parody does not fulfill the demand for the copyrighted work. For instance, in Elsmere Judge Goettel observed that
“it becomes apparent that this portion of the piece, the musical phrase that the lyrics ‘I Love New York’ accompany, is the heart of the [plaintiff’s] composition. Use of such a significant (albeit less than extensive) portion of the composition is far more than merely a de minimis taking. . . . The tune of T Love Sodom’ is easily recognizable as ‘having been appropriated from the copyrighted work,’ . . . and is a taking of a substantial nature.” 482 F.Supp. at 744 (footnote and citations omitted).
*190However, he correctly concluded that the copying nevertheless amounted to fair use as a parody. As we started in Berlin,
“At the very least, where, as here, it is clear that the parody has neither the intent nor the effect of fulfilling the demand for the original, and where the parodist does not appropriate a greater amount of the original work than is necessary to ‘recall or conjure up’ the object of his satire, a finding of infringement would be improper.” 329 F.2d at 545.
On the Elsmere appeal we observed,
“we note that the concept of ‘conjuring up’ an original came into the copyright law not as a limitation on how much of an original may be used, but as a recognition that a parody frequently needs to be more than a fleeting evocation of an original in order to make its humorous point. Columbia Pictures Corp. v. National Broadcasting Co., 137 F.Supp. 348, 354 (S.D.Cal.1955). A parody is entitled at least to ‘conjure up’ the original. Even more extensive use would still be fair use, provided the parody builds upon the original, using the original as a known element of modern culture and contributing something new for humorous effect of commentary.” 623 F.2d at 253 n.1.
Judge Cooper, having erroneously limited the scope of permissible use of a copyrighted work for parody purposes, reached this issue only by way of dictum, indicating that he would have held the defendants’ use to be excessive because “Champion not only conjures up the memory of Bugle Boy, it shares some of the same lyrics and music.” 425 F.Supp. at 454. This is both a misunderstanding of the “conjure up” test and a misconstruction of the facts. As both Berlin and Elsmere demonstrate, the fact that the parody shares some of the same lyrics and music as the copyrighted work does not itself mean that the taking is too substantial. Indeed it is exactly by such overlap that the original is recalled or conjured up. In Elsmere the repetition of the exact music from the key “I Love New York” section of that song, coupled with use of two of the four original words (“I Love”), was held not to be too substantial a taking to allow the fair use defense. As we stated in Berlin,
“While brief phrases of the original lyrics were occasionally injected into the parodies, this practice would seem necessary if the defendants’ efforts were to ‘recall or conjure up’ the originals; the humorous effect achieved when a familiar line is interposed in a totally incongruous setting, traditionally a tool of parodists, scarcely amounts to a ‘substantial’ taking, if that standard is not to be woodenly applied.” 329 F.2d at 545.
Here, the defendants took only one short phrase from the entire copyrighted lyric. The rest of the thematic conjuring was done by the overall setting and the word play on the title. That word play is the very kind of “conjuring up” that the fair use defense allows. As for the music, the discussion above shows that even in the absence of a fair use question there is some doubt as to whether the taking from the copyrighted version would be substantial enough to amount to an infringement. The overall musical style is the same, the harmony and melody are similar, and there are a few specific chord and note passages that overlap. None of this, however, is so great as to preclude the parody defense. The humorous twist would not exist if the “boogie woogie” sound of the original (incidentally, not copyrighted) were not recalled. The whole point of the fair use defense is to allow some use of the copyrighted material. Here it was not excessive.
The next question is whether the defendants’ use of Bugle Boy resulted in their satisfying the same demand as that song did, which is an important factor because an otherwise fair use might become unfair if it deprives the copyright holder of the market served by him and thus causes him real economic damage, 3 M. Nimmer, Copyright, § 13.05[A][4], note 3. In Meeropol v. Nizer, 560 F.2d 1061, 1070 (2d Cir. 1977), we stated:
“A key issue in fair use cases is whether the defendant’s work tends to diminish or prejudice the potential sale of plaintiff’s work. Marvin Worth Productions *191v. Superior Films Corp., 319 F.Supp. 1269, 1274 [168 USPQ 693, 697-698] (S.D.N.Y. 1970); 2 M. Nimmer Copyright, § 415.”
This issue was not reached by Judge Cooper because of his erroneous ruling that defendants’ work did not burlesque plaintiff’s copyrighted work itself. 425 F.Supp. at 453 n.19. Plaintiff-appellee argues that since the two works were exploited through the same media (records, printed copies, live performances) Champion ipso facto had the effect of diminishing the demand for Bugle Boy. In my view this reasoning is fatally defective. The issue is not whether the parody uses the same media as the copyrighted work — most parodies do — but whether it is “capable of serving as a substitute for the original,” A. Latman, The Copyright Law 215 (5th ed. 1979) (emphasis supplied), which depends on demand and product overlap rather than on the market in which the two products are vended. Applying this correct standard it is eminently clear that the two works respond to wholly differing demands and that a customer for one would not buy the other in its place. A raucous and explicitly sexual satire is not a substitute for the innocence of Bugle Boy. I therefore cannot agree with the majority’s “premise that the songs were competing works,” Maj. Op. 183, or that the sale or rendition of defendants’ song would interfere with the marketability of plaintiff’s song.
The majority implies that to “substitute dirty lyrics” should not permit a person to “escape liability by calling the end result a parody or satire on the mores of society.” Maj. Op. 185. In my view the defendants’ use of “dirty lyrics” or of language and allusions that I might personally find distasteful or even offensive is wholly irrelevant to' the issue before us, which is whether the defendants’ use, obscene or not, is permissible under the fair use doctrine as it has evolved over the years. We cannot, under the guise of deciding a copyright issue, act as a board of censors outlawing X-rated performances. Obscenity or pornography play no part in this case. Moreover, permissible parody, whether or not in good taste, is the price an artist pays for success, just as a public figure must tolerate more personal attack than the average private citizen. New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). As we pointed out in Berlin parody “has thrived from the time of Chaucer.” 329 F.2d at 545. Even the Canterbury Tales indulged largely in sexual satire.
Lastly, since there is no evidence of actual or potential economic damage caused to MCA by reason of defendants’ performance and sale of recordings of Champion, I believe that the award of damages here is inappropriate, excessive, and an unjustifiable windfall to the plaintiff.
For these reasons I would reverse the judgment of the district court.