In this copyright case, plaintiff appeals summary judgment granted to defendants. The district court held that defendants’ use of a song owned by plaintiff was a parody and therefore constituted a fair use of copyrighted material under section 107 of the Copyright Act, 17 U.S.C. § 101 et seq.
The 2 Live Crew, a rap music group, released for commercial distribution a version of Acuff-Rose Music’s copyrighted song, “Oh, Pretty Woman.” Acuff-Rose sued The 2 Live Crew, its individual members and its record company for copyright infringement and alleged pendent state law claims of interference with business relations and' interference with prospective business advantage. Defendants filed a motion for dismissal, which was treated as a motion for summary judgment. The district court granted summary judgment, *1432holding that The 2 Live Crew had created a parody and that the parody was a non-infringing “fair use” of the song as defined by section 107 of the 1976 Copyright Act. 17 U.S.C. § 107. We reverse.
I.
“Oh, Pretty Woman” was written and recorded by Roy Orbison and William Dees in 1964. Rights to the song were assigned to Acuff-Rose that same year, and Acuff-Rose registered for copyright protection. The song has become a pop music standard, and Acuff-Rose has realized substantial income from the licensing of “cover” recordings and other derivative works.
Luther Campbell, lead vocalist and song writer of The 2 Live Crew (2 Live Crew), wrote a version of “Oh, Pretty Woman” in May 1989, which he entitled “Pretty Woman.” By affidavit, Campbell stated that he had intended to create a parody as an attempt “through comical lyrics, to satirize the original work....” In June 1989, Campbell’s company, Luke Records (then doing business as Skyywalker Records), released “Pretty Woman” as one of ten tracks on a collection entitled “As Clean As They Wanna Be.” The credits on the album1 recognize Orbison and Dees as the writers of “Pretty Woman,” and Acuff-Rose as publisher of the song.
On July 5, 1989, following release of the album, Linda Fine, general manager of Luke Records, wrote a letter to Gerald Tiefer of Opryland Music Group (of which Acuff-Rose is a part) to “inform [Tiefer] of ‘Two Live Crew’s’ desire to do a parody” of “Oh, Pretty Woman.” 2 Fine stressed that a parody was intended and that the popularity of 2 Live Crew ensured substantial sales:
At the time of this writing the Group has a cut on the Billboard Rap Chart. I have enclosed a copy of the lyrics, so that you may see their satirical parody, very similar in vain [sic] to what Weird Al Yankovic and other satirical artists are doing.
We intend that all credits (writer & publisher) show your complete ownership of the song, and of course we intend to pay statutory rates.
Kindly keep in mind that we present this to you in a humorous sense and in no way should this be construed as anything but a novelty record that will be heard by hundreds of thousands of new listeners in their homes.
Fine included a cassette tape of 2 Live Crew’s version of the song and a lyric sheet for Tiefer to consider.
Tiefer responded tersely: “I am aware of the success enjoyed by ‘The 2 Live Crews’, but I must inform you that we cannot permit the use of a parody of ‘Oh, Pretty Woman.’ ” This refusal to grant a license did not dissuade 2 Live Crew from continuing to sell “As Clean As They Wanna Be.”
Acuff-Rose brought suit in June 1990 and defendants responded by filing a motion to dismiss, accompanied by affidavits, and sought to deposit $13,867.56. This amount was apparently calculated after reference to statutory royalty rates established by the Copyright Act, and reflected defendants’ understanding of what was owed to Acuff-Rose for use of the copyrighted song. The district court ordered the funds deposited with the Clerk of Court.3 Acuff-Rose responded with affida*1433vits, which the district court relied upon when granting summary judgment.
Among the affidavits presented, defendants presented that of Oscar Brand.4 Brand, who has himself recorded a number of songs which he terms “parodies,” stated his opinion that “both the words and the music of the 2 Live Crew performance are classic parodies.” Brand dissected the two songs and found substantial similarities of musical structure between them. The 2 Live Crew version has the same 4/4 drum beat as the original and includes a “very recognizable ‘bass riff,’ ” which “is repeated eight times....” However, the 2 Live Crew version diverges from the original by following the recognizable riff with “an atypical scraper — a Latin musical device, quite antithetic to the Orbison musical styling.” Further, in the 2 Live Crew version, the lead vocalist sings (or raps) “in the key of B major, which, performed against the A major chorus, gives the song a comic aspect.”
Lyrically, Brand found “Pretty Woman” to be consistent with a long tradition in the United States of making social commentary through music. African-American rap music, Brand stated, uses parody as a form of protest, and often substitutes new words to “make fun of the ‘white-bread’ originals and the establishment....” In “Pretty Woman,” Brand concluded, “this anti-establishment singing group is trying to show how bland and banal the Orbison song seems to them. It’s just one of many examples of their derisive approach to ‘white-centered’ popular music.”
Acuff-Rose presented the affidavit of Ph.D. musicologist Earl V. Speilman. Speilman also examined and compared the two songs and determined that there is “a significant amount of similarity” between them. Speilman identified five specific similarities, including the repetition of the recognizable riff, which “may have actually been sampled or lifted and then incorporated into the recording of ‘Pretty Woman’ as performed by The 2 Live Crew.” Speilman concluded that even a listener without musical training would readily discern that “Pretty Woman” was modelled after “Oh, Pretty Woman.”
The district court determined that there were no genuine issues of fact material to the question of fair use in dispute, and that the case was therefore suitable for summary judgment. Acuff-Rose Music, Inc. v. Campbell, 754 F.Supp. 1150, 1153 (M.D.Tenn.1991). The court then analyzed the factors by which an alleged infringing use is tested for fairness under section 107 of the Act. Id. at 1154-59.5
Following the district court’s determination that “Pretty Woman” was a parody, Acuff-Rose filed motions to distribute the funds deposited by 2 Live Crew with the Clerk of Court, and sought reconsideration of the fair use determination by introducing additional evidence on the question of the impact of the parody upon the market value of the copyrighted original.6 Based upon its determination of fair use, the district court granted summary judgment and ordered the funds returned to 2 Live Crew.
II.
We review the district court’s grant of summary judgment de novo. EEOC v. *1434University of Detroit, 904 F.2d 331, 334 (6th Cir.1990). Summary judgment is appropriate if the non-moving party fails to establish a genuine issue of material fact on an element essential to its case and on which it would bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). In making that determination, we view the evidence in the record in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986).
These general principles apply to the question of fair use, Maxtone-Graham v. Burtchaell, 803 F.2d 1253, 1257-58 (2d Cir.1986), cert. denied, 481 U.S. 1059, 107 S.Ct. 2201, 95 L.Ed.2d 856 (1987), which is a mixed question of law and fact. Mathews Conveyor Co. v. Palmer Bee Co., 135 F.2d 73, 85 (6th Cir.1943); Harper & Row Publishers v. Nation Enter., 471 U.S. 539, 560, 105 S.Ct. 2218, 2230, 85 L.Ed.2d 588 (1985). In reviewing the district court’s determination of fair use, when that court has found facts sufficient to evaluate each of the factors enumerated in section 107 of the Copyright Act, we “ ‘need not remand for further factfinding ... [but] may conclude as a matter of law that [the challenged use] do[es] not qualify as a fair use of the copyrighted work.’ ” Harper & Row, 471 U.S. at 560, 105 S.Ct. at 2230 (quoting Pacific & S. Co. v. Duncan, 744 F.2d 1490, 1495 (11th Cir.1984)). Our review of the record shows that no material facts are in dispute. The parties dispute the ultimate conclusions to be drawn from the facts. These judgments are legal in nature.
III.
Section 102(a) of the Copyright Act, adopted under the express authority of Art. I, Section 8 of the United States Constitution granting Congress the power to give authors exclusive rights to their writings, protects “musical works, including any accompanying words.” 17 U.S.C. § 102(a)(2). Section 106 of the Act grants to the copyright holder a variety of exclusive rights in the copyrighted work, including the right to “reproduce the copyrighted work in copies or phonorecords,” and to “prepare derivative works based upon the copyrighted work.” 17 U.S.C. § 106(1) and (2). The words and music to plaintiff’s song “Oh Pretty Woman” are subject to these protections. However, plaintiff’s exclusive rights are also subject to the provisions of sections 107 through 118 of the Act, which create exemptions and limitations on the owner’s rights.
Section 107 of the Copyright Act states:
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
17 U.S.C. § 107. In this case 2 Live Crew defends against a charge of copyright infringement by arguing that “Pretty Woman” falls within the exceptions spelled out in section 107.
In determining the scope and extent of the exceptions and limitations to copyright protection carved out by section 107, it is important to focus on the plain language of that section and the directions implicit in its form. Section 107 takes from a copyright owner the exclusive rights to his work insofar as a derivative, or allegedly infringing work, is a “fair use” of the copyrighted work. Traditionally, fair use *1435is defined as “ ‘a privilege in others than the owner of the copyright to use the copyrighted material in a reasonable manner without his consent.’ ” Harper & Row, 471 U.S. at 549, 105 S.Ct. at 2224 (quoting H. Ball, Law of Copyright and Literary Property, 260 (1944)). Fair use is an “equitable rule of reason,” Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 448, 104 S.Ct. 774, 792, 78 L.Ed.2d 574 (1984), which is used in order to “avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.” Stewart v. Abend, 495 U.S. 207, 236, 110 S.Ct. 1750, 1768, 109 L.Ed.2d 184 (1990) (quoting Iowa State Univ. Research Found., Inc. v. American Broadcasting Cos., 621 F.2d 57, 60 (2d Cir.1980)). Fair use is the only exception to a copyright holder’s exclusive rights in his work, but section 107 explains that the overarching concept of fair use embraces use of a copyrighted work for the purpose of “criticism, comment, news reporting, teaching, scholarship, or research.”
As the jurisprudence of section 107 has developed, the courts have found that the section’s recognition of “comment” and “criticism” as species of fair use also, by practical extension of those terms, includes the use of a copyrighted work (or a portion thereof) as a parody or satire of that work. Rogers v. Koons, 960 F.2d 301, 309 (2d Cir.1992). Indeed, the fair use formulation found in section 107 is a reflection of Congress’s intent to codify the common law fair use doctrine,7 which has long included parody. Harper & Row, 471 U.S. at 549, 105 S.Ct. at 2224; see also Bloom & Hamlin v. Nixon, 125 F. 977 (C.C.E.D.Pa.1903) (a parody fair use involving vaudeville impersonations). Therefore, it is understandable that both the parties and the district court focus on parody in their analyses of fair use. However, because the text of section 107 lists specific fair uses, we find that the term parody must be either subsumed within the statutory terms “criticism” or “comment,” or be an entirely separate category of exception.
Unfortunately, the terminology of the fair use analysis has evolved in such a way that the popular definition of parody and the statutory definition of parody as a form of criticism have become somewhat confused. Popularly, the term parody may be described as “when one ártist, for comic effect or social commentary, closely imitates the style of another artist and in so doing creates a new artwork that makes ridiculous the style and expression of the original.” Rogers, 960 F.2d at 309-10. This popular definition has been used on occasion as a synonym for that which is necessary to create an exception to the exclusive rights in a copyrighted work. This use, we find, creates confusion and should be avoided. Much of entertainment involves parodies in the popular sense, but section 107 does not direct the courts to conclude that all such parodies are fair uses. For the purposes of this opinion, we will assume, as found by the district court, that 2 Live Crew’s song is a parody of Acuff-Rose’s copyrighted song, and proceed to determine whether the calculus of section 107 results in a determination of fair use. That determination requires careful application of the four statutory factors. Harper & Row, 471 U.S. at 549, 105 S.Ct. at 2224; 3 M. Nimmer, Nimmer on Copyright, § 13.05[A] at 13-82.1. Although the question of fair use in the context of musical works is one of first impression in this circuit, we do not write on a clean slate.
Purpose and Character of Use
We look first to the purpose and character of the use of Acuff-Rose’s song by 2 Live Crew. We accept the district court’s conclusion that the purpose of the use was to parody the original.8 We con*1436sider the character of the use separately. The use of a copyrighted work primarily for commercial purposes has been held by the Supreme Court to be presumptively unfair. Sony Corp., 464 U.S. 417, 449, 104 S.Ct. 774, 792, 78 L.Ed.2d 574 (1984). “While commercial motivation and fair use can exist side by side, the court may consider whether the alleged infringing use was primarily for public benefit or for private commercial gain.” MCA, Inc. v. Wilson, 677 F.2d 180, 182 (2d Cir.1981). The Supreme Court explained that “[t]he crux of the profit/nonprofit distinction is not whether the sole motive of the use is monetary gain, but whether the user stands to profit from exploitation of the copyrighted material without paying the customary price.” Harper & Row, 471 U.S. at 562, 105 S.Ct. at 2231.
In the instant case, the district court found, and we agree, that “2 Live Crew’s song is included on a commercially distributed album sold for the purpose of making a profit,” and that “2 Live Crew’s primary goal in releasing ‘As Clean As They Wanna Be' is to sell its music....” 754 F.Supp. at 1154. However, the district court saw the Supreme Court's holdings in Sony Corp. and Harper & Row regarding the presumptively unfair nature of a commercial purpose as “merely ‘tendpng] to weigh against a finding of fair use.’ ” Id. (quoting Harper & Row, 471 U.S. at 562, 105 S.Ct. at 2231). We agree that commercial purpose is not itself controlling on the *1437issue of fair use, but find that the district court placed insufficient emphasis on the command of Harper & Row, wherein the Supreme Court expressly reaffirmed its earlier holding that “ ‘[Ejvery commercial use of copyrighted material is presumptively an unfair exploitation of the monopoly privilege that belongs to the owner of the copyright.’ ” 471 U.S. at 562, 105 S.Ct. at 2231 (quoting Sony Corp., 464 U.S. at 451, 104 S.Ct. at 792). Therefore, in analyzing the purpose and character of 2 Live Crew’s use of the copyrighted song, the facts in the record require that we start from the position that the use is unfair. We are asked to then consider whether 2 Live Crew met its burden to rebut the presumption by a defense, we note, requiring the court to be convinced that the “parody does not unfairly diminish the economic value of the original.” Fisher v. Dees, 794 F.2d 432, 437 (9th Cir.1986).
Although in this case we do not set aside the district court’s conclusion that 2 Live Crew’s song is a criticism in the nature of a parody in the popular sense, we nevertheless find that the district court erred in the process of determining that the criticism constituted a fair use of the copyrighted work. We find that the admittedly commercial nature of the derivative work-the purpose of the work being no less important than its character in the Act’s formulation-requires the conclusion that the first factor weighs against a finding of fair use. Sony Corp., 464 U.S. at 449, 104 S.Ct. at 792.
Nature of Copyrighted Work
The district court found that this factor weighed against a determination of fair use, and we agree. Acuff-Rose, 754 F.Supp. at 1155-56. As a general rule, creative works-literary works of fiction or artistic works-are afforded greater protection from the fair use determination than are works of fact. Harper & Row, 471 U.S. at 563, 105 S.Ct. at 2232; New Era Publications, Int’l v. Carol Publishing Group, 904 F.2d 152, 157 (2d Cir.), cert. denied, - U.S. -, 111 S.Ct. 297, 112 L.Ed.2d 251 (1990). The status of “Oh, Pretty Woman” as a creative work is not contested. In determining whether this factor should weigh in favor of the copyright holder we also ask whether the work “represented a substantial investment of time and labor made in anticipation of financial return.” MCA, Inc., 677 F’2d at 182. The record amply supports a finding in favor of Acuff-Rose on this factor.
Portion Used
The third factor we consider is the amount and substantiality of the portion of the copyrighted work used in the derivative work in relation to the copyrighted work as a whole. As applied to alleged parodies, this factor has historically turned on analysis of the “conjure up” test. Walt Disney Prods, v. Air Pirates, 581 F.2d 751, 757 (9th Cir.l978) cert. denied sub nom., O’Neill v. Walt Disney Prods., 439 U.S. 1132, 99 S.Ct. 1054, 59 L.Ed.2d 94 (1979). The test asks “whether the parodist has appropriated a greater amount of the original work than is necessary to ‘recall or conjure up’ the object of his satire.” Id. The test describes a continuum of use, and not only scrutinizes the extent of the taking, but the qualitative nature of that taking. Harper & Row, 471 U.S. at 565, 105 S.Ct. at 2233. A de minimis use, one that is meager and fragmentary, by definition fails to conjure up the original and does not constitute an infringement. Elsmere, 482 F.Supp. at 744. The 2 Live Crew, appropriately, does not attempt to characterize its use of the copyrighted work as de minim-is. Uses which depart from the de minim-is level may nevertheless be fair uses, but at some point on the continuum this factor militates against a finding of fair use. Air Pirates, 581 F.2d at 757. Parodies are generally allowed to use more of the copyrighted work and still fall within the rubric of fair use than are other types of copying:
[T]he 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. A parody is entitled at least to ‘conjure up’ the original.
*1438Elsmere, 623 F.2d at 253, n. 1 (citation omitted).
The district court, having found that 2 Live Crew created a parody iti the popular sense, applied the conjure up test. The amount of the original work which is appropriated is a factual issue, but the question whether the taking is excessive under the circumstances is one of law. Fisher, 794 F.2d at 438, n. 4.
The districtcourt, operating on the assumption that "Pretty Woman" is a parody, concluded: "In view of the fact that the medium is a song, its purpose is parody, and the relative brevity of the copying, it appropriates no more from the original than is necessary to accomplish reasonably its parodic purpose." A cuff-Rose, 754 F.Supp. at 1157. Clearly, the court was using the term parody in its popular sense. While it may not be inappropriate to find that no more was taken than necessary, the copying was qualitatively substantial. Both of defendants' af-fiants stated that 2 Live Crew's version tracks the music and meter of the original. These opinions were intended to demonstrate that the new song is a parody. However, these opinions point out the ~ub-stantiality of copying. Near verbatim taking of the music and meter of a copyrighted work without the creation of a parody is excessive taking. See MCA, inc., 677 F.2d at 183-85. Most importantly, defendants' affiants stated that the song is built upon the recognizable bass or guitar riff of the original by repeating that riff eight times. Acuff-Rose's musicologist stated that the riff was probably sampled from the original, that is, simply recorded verbatim and then mixed with 2 Live Crew's additions. "[T]he fact that a substantial portion of the infringing work was copied verbatim is evidence of the qualitative value of the copied material, both to the originator and to the plagiarist who seeks to profit from marketing someone else's copyrighted expression." Harper & Row, 471 U.s. at 565, 105 S.Ct. at 2233. The qualitative degree of the copying is even more critical than the quantitative, and we ask what degree of the essence of the original is copied in relation to its whole. See Salinger v. Random House, Inc., 811 F.2d 90, 98 (2d Cir.), reh'g denied, 818 F.2d 252, cert. denied, 484 U.S. 890, 108 S.Ct. 213, 98 L.Ed.2d 177 (1987). We conclude that taking the heart of the original and making it the heart of a new work was to purloin a substantial portion of the essence of the original. The facts as developed under this factor, "the amount and substantiality of the portion used in relation to the copyrighted work as a whole" cannot be used in any way to support a finding of fair use.
Effect on Potential Market
This factor has been characterized as "undoubtedly the single most important element of fair use." Harper & Row, 471 U.S. at 566, 105 S.Ct. at 2233; see also Stewart, 495 U.S. at 238, 110 S.Ct. at 1769. This factor requires that a balance be struck "between the benefit gained by the copyright owner when the copying is found an unfair use and the benefit gained by the public when the use is held to be fair." Rogers, 960 F.2d at 311. To demonstrate that the balance weighs in favor of a finding of no fair use:
Actual present harm need not be shown; such a requirement would leave the copyright holder with no defense against predictable damage. Nor is it necessary to show with certainty that future harm will result. What is necessary is a showing by a preponderance of the evidence that some meaningful likelihood of future harm exists. If the intended use is for commercial gain, that likelihood may be presumed. But if it is for a noncommercial purpose, the likelihood must be demonstrated.
Sony Corp., 464 U.S. at 451, 104 S.Ct. at 793 (emphasis in original). The focus is on potential harm, and the "inquiry must take account not only of harm to the original but also of harm to the market for derivative works." Harper & Row, 471 U.S. at 568, 105 S.Ct. at 2234.
In the instant case, the use of the copyrighted work is wholly commercial, so that we presume that a likelihood of future harm to Acuff-Rose exists. See Rogers, *1439960 F.2d at 312 (the court holding that “there is- simply nothing in the record to support a view that [defendant] produced [the derivative art work] for anything other than sale as high-priced art. Hence, the likelihood of future harm to [plaintiffs] photograph is presumed, and plaintiff’s market for his work has been prejudiced”).
Having determined that 2 Live Crew created a parody, the district court refused to indulge the presumption and concluded that “it is extremely unlikely that 2 Live Crew’s song could adversely affect the market for the original” because the “intended audience for the two songs is entirely different.” Acuff-Rose, 754 F.Supp. at 1158. In reaching this conclusion, the district court largely relied on the affidavit of Krasilovsky who stated, in part: “I cannot see how it [the new work] can affect the sales or popularity of the Orbison song, except to stimulate interest in the original.” Id. Although we have already determined that harm for purposes of the fair use analysis has been established by the presumption attaching to commercial uses, we note that inquiry under the fourth statutory factor not only considers harm to the market for the original but harm to the market for derivative works as well. Id. This formulation was arrived at by Professor Nimmer, who provided an example relied upon by the Rogers court: “[A] movie adaptation is made of a book. Even though the movie may boost book sales, it is an unfair use because of the effect on the potential sale of adaptation rights.” Rogers, 960 F.2d at 312 (citing 3 Nimmer, § 13.05[B]). Krasilovsky’s statement is irrelevant as to the fourth statutory factor. The record on this factor does not support a finding of fair use.
Conclusion
Three of the factors set out in the statute weigh against a finding of fair use. One is, at best, neutral. In dealing with uses popularly termed parodies, the factors involving the commercial nature of the use and the damage to the defendant are of particular significance. It is likely, for example, that an identical use of the copyrighted work in this case at a private gathering on a not-for-profit basis would be a fair use. It is the blatantly commercial purpose of the derivative work that prevents this parody from being a fair use.
We conclude that the district court erred in granting summary judgment to defendants. The four factors set forth in section 107 of the Act support the conclusion that 2 Live Crew’s use of Acuff-Rose’s copyrighted song was not a fair use. We REVERSE and REMAND for proceedings consistent with this opinion.
. We use the term "album" generically; "As Clean As They Wanna Be” was also released on compact disc and cassette tape.
. The parties dispute the above chronology. Defendants contend that Campbell intended all along to create a comic song and appropriately sought the permission of Acuff-Rose prior to doing so. Acuff-Rose sees Fine’s letter as a effort to create a revisionist history of legitimacy for an act of piracy. The district court found that "As Clean As They Wanna Be” was released on July 15, 1989, subsequent to Fine's letter to Tiefer. Campbell’s intent is not dispositive of the case, but we note that this finding contradicts Campbell’s affidavit. The only support in the record for a July 15 release date is found in Acuff-Rose’s response to the motion for dismissal, in which counsel asserted a release date "on or about July 15, 1989.” Campbell’s affidavit is a better factual source than counsel’s contention.
.At oral argument, counsel for 2 Live Crew stated that the deposit was a tactical mistake which should not be construed as an admission that the group’s song was something other than *1433a fair use parody. Our review of the record reveals confusion over the status of "Pretty Woman” as either a "comic” effort, such as those created by comic musician Weird Al Yan-kovic, or a "parody,” which purports to deliver social commentary within a humorous framework. Yankovic's works are licensed uses, not "fair uses" for which a license is not required. This confusion on the part of 2 Live Crew adds weight to Acuff-Rose’s assertion that Campbell’s intent to create a parody was only formed after "Pretty Woman" was released.
.2 Live Crew also presented the affidavit of M. William Krasilovsky, whose conclusions and the reasons therefore are much the same as Brand’s.
. The district court also determined that Acuff-Rose’s pendent state law claims were preempted by section 301 of the Copyright Act. Acuff-Rose Music, 754 F.Supp. at 1159-60. Acuff-Rose does not challenge this determination.
. Acuff-Rose also sought leave to amend its complaint to allege violations of the Lanham Act. 15 U.S.C. § 1125(a). The district court denied the motion and Acuff-Rose does not allege error in the denial.
. See, S.Rep. No. 94-473, 94th Cong., 1st Sess. at 61-62 (1975); H.R.Rep. No. 94-1476, 94th Cong., 2d Sess. at 65 (1976).
. We do so with considerable reservation, as the district court’s parody analysis does not, in our view, comport with proper analysis of that term.
The district court compared the statement of the parties' affiants and concluded: "Acuff-Rose may not like it, and 2 Live Crew may not have created the best parody of the original, but nonetheless the facts convincingly demonstrate that it is a parody.” Acuff Rose, 754 F.Supp. at *14361155. The district court closely parsed the lyrics of the two songs, finding that: "Although the parody starts out with the same lyrics as the original, it quickly degenerates into a play on words, substituting predictable lyrics with shocking ones.” Id. 2 Live Crew contends that by way of the "shocking" lyrics "Pretty Woman" was intended to satirize the original work, as well as society at large. Our difficulty with the district court’s conclusion that this intention was realized is that, even accepting that "Pretty Woman” is a comment on the banality of white-centered popular music, we cannot discern any parody of the original song. Failing a direct comment on the original, there can be no parody, as the "copied work must be, at least in part, an object of the parody, otherwise there would be no need to conjure up the original work.” Rogers, 960 F.2d at 310 (citing MCA, Inc., 677 F.2d at 185).
In the copyrighted song, the singer remarks on the beauty of a woman he sees on the street. The singer is initially disappointed when the woman rebuffs his advances and later exults when the woman appears to change her mind. Campbell's lyrics involved women but aside from broadly evoking the theme of the original in the opening line of the 2 Live Crew version: "Pretty Woman-Walkin' down the street, Pretty Woman-Girl you look so sweet,” bear no discernible relationship to the original. Instead, as Brand noted, the lyrics examine a series of women with unappealing attributes: “Big Hairy Woman-You need to shave that stuff, Big Hairy Woman-You know I bet it’s tough, Big Hairy Woman-AH that hair it ain’t legit, ’Cause you look like 'cousin it,’ Big Hairy Woman," or who are not faithful: "Two Timin’ Woman-Girl you know you ain’t right, Two Timin' Woman-You's out with my boy last night, Two Ti-min' Woman-That takes a load off my mind, Two Timin’ Woman-Now I know the baby ain’t mine.”
In our opinion, this is not a new work which makes ridiculous the style and expression of the original, although there is plainly an element of the ridiculous to the new work. We cannot see any thematic relationship between the copyrighted song and the alleged parody. The mere fact that both songs have a woman as their central theme is too tenuous a connection to be viewed as critical comment on the original. We find instructive the holding in Elsmere v. National Broadcasting Co., 482 F.Supp. 741 (S.D.N.Y.1980), aff’d per curiam, 623 F.2d 252 (2d Cir.1980). The Court of Appeals for the Second Circuit agreed with the district court that the company of the television program "Saturday Night Live” had performed a parody-entitled "I Love Sodom”-of the then-widely known advertising jingle "I Love New York." The new work cast the' original image-polishing effort as ridiculous by asserting that the effort to redeem New York City's image was futile. It is this sort of direct comment, comment which is expressly and unambiguously directed at the message of the original work, which constitutes a parody. Similarly, the court in Rogers found that a sculpture based upon a copyrighted photograph was not a parody regardless of the creator's alleged intention to point out the banality of the copyrighted work. Rogers, 960 F.2d at 309-10. The new work, the court found, could perhaps be seen as a critique of materialistic society at large, but on its face the sculpture failed to make critical comment regarding the original creative work. Id. We are in agreement with the Rogers court that the term parody cannot be allowed to assume too broad a definition, for if an "infringement of a copyrightable expression could be justified as a fair use solely on the basis of the infringer's claim to a higher or different artistic use ... there would be no practicable boundary to the fair use defense.” Id. at 310.