dissenting.
A Second Circuit panel that included both of the cousins Hand once called the “fair use” issue “the most troublesome in the whole law of copyright.” Dellar v. Samuel Goldwyn, Inc., 104 F.2d 661, 662 (2d Cir.1939). It has been said, indeed, that the fair use doctrine “is so flexible as virtually to defy definition.” Time, Inc. v. Bernard Geis Assocs., 293 F.Supp. 130, 144 (S.D.N.Y.1968).
Perhaps the most troublesome fair use issue of all is the question of whether a particular parody constitutes fair use of a copyrighted original. The parody cases appear to be in hopeless conflict. Compare, for example, Loew’s, Inc. v. Columbia Broadcasting System, 131 F.Supp. 165 (S.D.Cal.1955), aff'd sub nom. Benny v. Loew’s, Inc., 239 F.2d 532 (9th Cir.1956), aff'd by an equally divided court, 356 U.S. 43, 78 S.Ct. 667, 2 L.Ed.2d 583 (1958) (Jack Benny’s parody of the motion picture “Gaslight” held not to be fair use of the original), with Berlin v. E.C. Publications, Inc., 329 F.2d 541 (2d Cir.), cert. denied, 379 U.S. 822, 85 S.Ct. 46, 13 L.Ed.2d 33 (1964) (Mad Magazine parodies of Irving Berlin songs held to be fair use).1 Cf. *1440Columbia Pictures Corp. v. National Broadcasting Co., 137 F.Supp. 348 (S.D.Cal.1955), where the same district judge who rejected the fair use defense for Jack Benny’s parody of “Gaslight” accepted the defense for a Sid Caesar parody of “From Here to Eternity.” In sum, whether a particular parody is entitled to the protection of the fair use doctrine is a question likely to be dealt with by lower courts in much the same way that the Supreme Court deals with more than a few questions of constitutional law; we think we know fair use when we see it, even if we cannot do a very good job of relating what we see (or do not see) to the governing text.
The text that is pertinent here is statutory, not constitutional.2 Where parody is concerned, however, the guidance provided by the statute is at least as Delphic as that sometimes provided by the Constitution. The Copyright Act says that “the fair use of a copyrighted work ... for purposes such as criticism, comment ... scholarship or research, is not an infringement of copyright.” 17 U.S.C. § 107 (emphasis supplied). (The statute itself tells us that the words “such as” mean what they say and “are illustrative and not limitative.” 17 U.S.C. § 101.) The statute then goes on to list four factors that shall be “include[d]” among the factors considered by a court in determining a question of fair use: “In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include [the four factors.]” Section 107 (emphasis supplied). Here again, the list provided by Congress is “nonexclusive,” to borrow the term used in Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 549, 105 S.Ct. 2218, 2224, 85 L.Ed.2d 588 (1985); the court is free to consider any other factors that may be relevant.
Where we are dealing with parody, as I shall suggest, unenumerated factors may have no less relevance than the four set forth in the statute — and the statutory factors are likely to have a somewhat different impact on our deliberations than they would in a non-parody situation. Before turning to these matters, however, I think it would be helpful to consider what it is we are talking about when we speak of “parody.”
The etymology of the word has direct relevance to this case. The term comes from the Greek parodeia, meaning “a song sung alongside another.”3 The musical parody is thus the very archetype of the genre.
One of the best definitions I have come across is the following, which appears in a prize-winning student essay:
*1441“A parody is a work that transforms all or a significant part of an original work of authorship into a derivative work by distorting it or closely imitating it, for comic [or, I would add, for satiric] effect, in a manner such that both the original work of authorship and the independent effort of the parodist are recognizable.” Clemmons, “Author v. Parodist: Striking a Compromise,” ASCAP Copyright Law Symposium No. 33 (1987) at 101.4
Some authorities go on to suggest that if the derivative work is to be treated as true parody, it must do more than achieve a comic effect: “It must also make some critical comment or statement about the original work which reflects thé original perspective of the parodist — thereby giving the parody social value beyond its entertainment function.” Metro-Goldwyn-Mayer v. Showcase Atlanta Cooperative Productions, Inc., 479 F.Supp. 351, 357 (N.D.Ga.1979); New Line Cinema Corp. v. Bertlesman Music Group, Inc., 693 F.Supp. 1517, 1525 (S.D.N.Y.1988). See also Faaland, “Parody and Fair Use: The Critical Question,” 57 Wash.L.Rev. 163 (1981); Bisceglia, “Parody and Copyright Protection: Turning the Balancing Act into a Juggling Act,” ASCAP Copyright Law Symposium No. 34 (1987). But whether or not a derivative work must “criticize” the original, I am not sure that I understand the reservations my colleagues on the panel have expressed in this case about accepting the district court’s conclusion that 2 Live Crew’s “Pretty Woman” is in fact a parody of the Acuff-Rose original. Under anyone’s definition, it seems to me, the 2 Live Crew song is a quintessential parody.
The Second Circuit faced a similar definitional question in Berlin v. E.C. Publications, Inc., 329 F.2d 541 (2d Cir.), cert. denied, 379 U.S. 822, 85 S.Ct. 46, 13 L.Ed.2d 33 (1964). One of the Irving Berlin pieces on which the Mad Magazine people had worked their peculiar magic was the song “A Pretty Girl is Like a Melody.” (Messrs. Orbison and Dees are obviously not the first tunesmiths to have turned their attention to a comely female.) The defendants, in the words of the court,
“transformed the plaintiffs’ ‘A Pretty Girl is Like a Melody,’ • into ‘Louella Schwartz Describes Her Malady’; what was originally a tribute to feminine beauty became a burlesque of a feminine hypochondriac troubled with sleeplessness and a propensity to tell the world of her plight.” Id. at 543.
This was “parody,” the Second Circuit said — and it was parody that constituted fair use of Irving Berlin’s original work:
“For, as a general proposition, we believe that parody and satire are deserving of substantial freedom — both as entertainment and as a form of social and literary criticism. As the readers of Cervantes’ ‘Don Quixote’ and Swift’s ‘Gulliver’s Travels,’ or the parodies of a modern master such as Max Beerbohm well know, many a true word is indeed spoken in jest.” Id. at 545.
In Fisher v. Dees, 794 F.2d 432 (9th Cir.1986), similarly, the Ninth Circuit had occasion to analyze a pair of songs about women named “Sunny” or “Sonny.” The first piece, recorded in the 1950s by Johnny Mathis, was entitled “When Sunny Gets Blue.” The second, released in 1985 under the title “When Sonny Sniffs Glue,” copied *1442the first six bars (the recognizable main theme) of the original song’s 38 bars. The derivative work transformed the original opening lyrics — “When Sunny gets blue, her eyes get gray and cloudy, then the rain begins to fall” — into “When Sonny sniffs glue, her eyes get red and bulgy, then her hair begins to fall.” Id. at 434'. After listening to tapes of both songs, the Ninth Circuit panel had no difficulty at all in rejecting an argument that “the so-called parody is not actually a parody, or at least is not a parody of the composer’s song.” Id. at 436. Said the court,
“Although we have no illusions of musical expertise, it was clear to us that Dees’s version was intended to poke fun at the composers’ song, and at Mr. Mathis’s rather singular vocal range. We reject the notion that the song was used merely as a vehicle to achieve a comedic objective unrelated to the song, its place and time.” Id.
Like the Second Circuit panel in Berlin, the Fisher court affirmed a finding that the parody was entitled to fair use protection as a matter of law. Id. at 440.
I myself have no more “illusions of musical expertise” than did the members of the court that decided Fisher v. Dees. After listening, however, to Exhibits D and E, the tapes of the two “Pretty Woman” songs, I am satisfied that the 2 Live Crew version both imitates and distorts the original work for comic or satiric effect, and does so in such a way that both the original work and the work of the parodist are readily recognizable. The parody (done in an African-American dialect) was clearly intended to ridicule the white-bread original — and if a higher criticism is necessary to qualify the derivative work as true parody, such criticism is readily discernible.
The affidavit of Oscar Brand explains, as Judge Joiner has noted, that “this anti-establishment singing group [2 Live Crew] is trying to show how bland and banal the Orbison song seems to them.” The district court accepted Brand’s explanation. 754 F.Supp. at 1155. So do I. Whether one likes the original or not — and the maxim “de gustibus non est disputandum ” comes to mind here — the original is quite clearly being held up to criticism by 2 Live Crew.
Consider the plot, if one may call it that, of the original work. A lonely man with a strangely nasal voice sees a pretty woman (name unknown) walking down the street. The man speculates on whether the woman is lonely too. Apostrophizing her in his mind, he urges her to stop and talk and give him a smile and say she will stay with him and be his that night. The woman walks on by, and the man resigns himself to going home alone. Before he leaves, however, he sees the woman walking back to him. End of story.
This little vignette is intended, I think, to be sort of sweet. While it is certainly suggestive, it is also, by the standards of its time, “romantic” rather than indelicate. The singer evokes a sexual theme in his soliloquy, but then leaves the realization of his desire to the listener’s imagination.
The parody by 2 Live Crew is.much more explicit, and it reminds us that sexual congress with nameless streetwalkers is not necessarily the stuff of romance and is not necessarily without its consequences. The singers (there are several) have the same thing on their minds as did the lonely man with the nasal voice, but here there is no hint of wine and roses. The 2 Live Crew singers — randy misogynists, not lonely Sir Lancelots — raucously address a “big hairy woman” and her “bald-headed friend,” one qr both of whom are urged to “let the boys jump in.” One singer chides a woman (the big hairy one, I think) for having cheated on him (“Two timin’ woman/You’s out with my boy last night”). In the end, this cloud proves to have what’the singer sees as a silver lining:
“Two timin’ woman/That takes a load off my mind Two timin’ woman/Now I know the baby ain’t mine.”
This, I should say, is “criticism” with a vengeance — and the thematic relationship to the original is obvious. The relationship between the copyrighted song and the parody is every bit as patent here as was the corresponding relationship between the songs considered by the courts in Elsmere *1443Music, Inc. v. National Broadcasting Co., 482 F.Supp. 741 (S.D.N.Y.1980), aff'd 623 F.2d 252 (2d Cir.1980). That case involved an oft-repeated advertising jingle known as “I Love New York” and a Saturday Night Live take-off entitled “I Love Sodom.” The parody was held to constitute a fair use of the original. The statutory factors, in my view, fiilly support a corresponding result in the instant case.
* * * sfc * *
The first of the factors that we must consider is this:
“(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes....”
In the case before us, of course, the purpose is parody and the character is commercial. Does the mere fact that the parodists hoped to make money mean that their use of the original work is presumptively unfair? I am by no means convinced that the Supreme Court would so hold — and any such presumption would be readily rebut-table in any event.
It is true that in the Betamax case, Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 451, 104 S.Ct. 774, 793, 78 L.Ed.2d 574 (1984), the Court made the broad statement that “every commercial use of copyrighted material is presumptively an unfair exploitation of the monopoly privilege that belongs to the owner of the copyright....” It is also true that this statement was quoted with approval in Harper & Row, 471 U.S. at 562, 105 S.Ct. at 2231. . But both of those cases involved mechanical copying, literally or figuratively, without alteration of the copied material.
There is a difference, obviously, between copying and caricaturizing. By calling into being a new and transformed work, the caricaturist exercises a type of creativity that is foreign to the work of the copyist. And the creative work of the caricaturist is surely more valuable than the reproductive work of the copyist. Thus it has been suggested that the presumption of unfairness in cases of commercial exploitation “is sensible and appropriate only when applied to commercial reproductive uses.... ” Note, “The Parody Defense to Copyright Infringement: Productive Fair Use After Betamax,” 97 Harv.L.Rev. 1395, 1408 (1984).
An illustration may help. W.S. Gilbert and Sir Arthur Sullivan created comic operas that are among the most commercially successful of all time. Gilbert and Sullivan certainly cannot be said to. have had “nonprofit educational purposes” in mind when they wrote such a work as Princess Ida, one of their minor masterpieces. Princess Ida was, in Gilbert’s words, "a respectful operatic perversion” of “The Princess,” a lengthy poem by Tennyson. Would the world not be a poorer place if Lord Tennyson could have stilled the voice of W.S. Gilbert merely because Gilbert’s purposes included the making of money? For anyone who loves Gilbert and Sullivan — and their number is legion — the question answers itself.
Similarly, I think, the world would be the poorer if the holders of the copyright on “I Love New York” had been allowed to block the Saturday Night Live rendition of “I Love Sodom.” “[I]n today’s world of often unrelieved solemnity,” as the Second Circuit panel remarked in affirming the judgment in favor of Saturday Night Live, “copyright law should be hospitable to the humor of parody....” Elsmere Music Co., Inc., 623 F.2d at 253.
We should almost certainly be hospitable to the humor of parody if we allowed ourselves to be guided, as the Supreme Court was guided in the Betamax case, “by Justice Stewart’s exposition of the correct approach to the ambiguities in the law of copyright.” Sony, 464 U.S. at 431, 104 S.Ct. at 783. The cause that is ultimately to be served, Justice Stewart observed in Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156, 95 S.Ct. 2040, 2043, 45 L.Ed.2d 84 (1975), is “the cause of promoting broad public availability of literature, music and other arts.” What Justice Stewart called the “ultimate aim” of copyright law is “to stimulate artistic creativity for the general public good.” Id. (footnote omitted). If we keep this ultimate aim in mind, it seems to me, we are not likely to *1444conclude that parody for profit is presumptively “unfair.”
# >f< # * # *
The second statutory factor to be considered is
“(2) the nature of the copyrighted work_”
The pertinent data in this connection are that Orbison and Dees published “Oh, Pretty Woman” long before the alleged infringement occurred, and that theirs is a work of the imagination rather than a piece of historical reportage.
That the original song had long since been published is a factor which works in favor of the 2 Live Crew defendants. See Harper & Row, 471 U.S. at 564, 105 S.Ct. at 2232, where the Supreme Court declared that “the scope of fair use is narrower with respect to unpublished works.” The fact that “Oh, Pretty Woman” is a creative work might tend to offset the publication factor, perhaps, if the work were not being used for the purpose of parody. But parody routinely sets its sights on the fictive as opposed to the factual. If, as the Second Circuit insists, “parody and satire are deserving of substantial freedom,” Berlin, 329 F.2d at 545, it would make no sense at all to penalize the parodist for taking as his subject precisely the sort of work that has been grist for parodists’ mills for the last two and a half millennia.
The third statutory factor is a somewhat problematical one, where parody is concerned:
“(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole....”
The “portion used” test is problematical in this context because parody cannot be parody unless it allows the original work to shine through in a form which, while distorted, is recognizable. “Parody by its nature demands close imitation,” Bisceglia, “Parody and Copyright Protection,” AS-CAP Copyright Law Symposium No. 34 at 17; substantial usage is thus almost a given.
The Ninth Circuit has held that the fair use defense must fail when the purported parodists’ copying “is virtually complete or almost verbatim.” Walt Disney Productions v. Air Pirates, 581 F.2d 751, 756 (9th Cir.1978), cert. denied, 439 U.S. 1132, 99 5.Ct. 1054, 59 L.Ed.2d 94 (1979). I have no quarrel with this formulation; near-verbatim copying is closer to plagiarism than it is to parody. But neither the music nor the lyrics of 2 Live Crew’s “Pretty Woman” can fairly be said to constitute near-verbatim copying of the Orbison and Dees original.5
“At the very least,” the Second Circuit has said, a parody will pass muster under the “portion used” factor “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 sat-ire_” Berlin, 329 F.2d at 545. Saturday Night Live’s “I Love Sodom” was held to pass the “conjure up” test,6 and 2 Live *1445Crew’s “Pretty Woman” does not appear to have appropriated more of the original on which it was based than did “I Love Sodom.”
The district court (Wiseman, J.) made these observations about the amount and substantiality of the mimicry in the 2 Live Crew song:
“In this case, 2 Live Crew has not mimicked so much of ‘Oh, Pretty Woman’ that it runs afoul of the substantiality factor. Notable aspects of the' original song are plainly present in 2 Live Crew’s version but, unlike Air Pirates, this is not a case of virtually complete or verbatim copying. Rather this case falls in the realm of parodies envisioned by Fisher and Berlin. 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 parodie purpose. Fisher, 794 F.2d at 439.” 754 F.Supp. at 1157.
I cannot improve on Judge Wiseman’s analysis of the substantiality factor.
* * * * # *
The last of the statutory factors is this:
“(4) the effect of the use upon the potential market for or value of the copyrighted work.”
To me, at least, it seems as clear in this case as it did to the Second Circuit in Berlin that “the parody has neither the intent nor the effect of fulfilling the demand for the original_” . 329 F.2d at 545.
The affidavit of Oscar Brand says that
“Parodies have never interfered with the popularity of the original. * * * The sales graph of ‘Hello, Dolly’ didn’t change when it became ‘Hello, Lyndon,’ and ‘Hello, Nixon.’ Hundreds of popular songs have been ‘covered’ by parody performances and recordings without altering their popular appeal or interfering with their sales.”
Although Brand’s assertion that parodies have “never” interfered with the popularity of the original strikes me as dubious, there has been no showing of any such interference here.7 Brand — who is probably on firmer ground when he sticks to the specifics of this case — explains that the audiences for the two songs are quite different:
“There is no question in my mind that the song “Oh, Pretty _ Woman” by Roy Orbison and William Dees was intended for Mr. Orbison’s country music audience and middle-America.
[] On the other hand, 2 Live Crew’s version[ ], which is unquestionably a comic parody, is aimed at the large black populace which used to buy what was once called ‘race’ records.' The group’s popularity is intense among the disaffected, definitely not the audience for the Orbison song. I cannot see how it can affect the sales or popularity of the Orbison song, except to stimulate interest in the original.”
Brand’s analysis of the market stands unrefuted. One month after Brand gave his affidavit, the plaintiff’s Director of Licensing, Gerald Tiefer, executed an affidavit in which there is no attempt to deny that the two songs are aimed at different markets.8 Mr. Tiefer does suggest, however, that the 2 Live Crew parody could impair the value of the plaintiff’s right to grant licenses to parodists. And Mr. Jerry Flowers, Executive-Director of Publishing for the plaintiff’s parent corporation, says in an affidavit that the licensing of parodies of established hit songs has become extremely lucrative. .
*1446Judge Joiner invites our attention, in this connection, to Rogers v. Koons, 960 F.2d 301, 312 (2d Cir.1992), where the Second Circuit observed that “the inquiry considers not only harm to the market for the original [work], but also harm to the market for derivative works.” In a passage a portion of which was quoted with approval in Harper & Row, 471 U.S. at 568, 105 S.Ct. at 2234, similarly, the Nimmer treatise says that “[i]f the defendant’s work adversely affects the value of any of the rights of the copyrighted work ... [including the right to license derivative works,] the use is not fair even if the rights thus affected have not as yet been exercised by the plaintiff.” 3 Nimmer on Copyrights, § 13.05[B] at 13-88.19 (1992) (citations omitted).
Nimmer, however, is not discussing parody here; the quoted passage deals with a motion picture hypothetically adapted from a copyrighted novel. And neither Rogers v. Koons nor Harper & Row involved parody either. The former was a case in which a sculpture had been copied with great fidelity from a photograph — the artisans who produced the sculpture were told that the “work must be just like photo,” 960 F.2d at 305—and the latter was a case in which quotations from the unpublished manuscript of President Ford’s autobiography were lifted by the defendant verbatim.
Parody, again, is different. It transforms as it copies, and it may well savage the original work in the process. In the past, at least, copyright holders have not been overly enthusiastic about agreeing to see their works parodied — and the law itself has licensed parodists, much as the law has given license to book reviewers, drama critics, and other commentators. Ours is a commercial age, to be sure, and consensual “parody licenses” may be more common now than they used to be. I confess that I am still uneasy, however, about the prospect of the courts turning copyright holders into censors of parody. Neither the history of the fair use doctrine nor the four factors enumerated in the Copyright Act compel such a result. “[Permissible parody, whether or not in good taste, is the price an artist pays for success.... ” MCA, Inc. v. Wilson, 677 F.2d 180, 191 (2d Cir.1981) (Mansfield, J., dissenting).
I said earlier in this opinion that there may be- factors which, although not enumerated in the Copyright Act, merit consideration by the courts in determining when parody constitutes fair use. I shall mention only one such factor — one foreshadowed in what has already been said. It is this: the social value of the parody as criticism.
In the case at bar, it seems to me, this factor militates rather strongly in favor of affirmance of the district court’s finding of fair use. The 2 Live Crew “Pretty Woman” is hopelessly vulgar, to be sure,9 but we ought not let that fact conceal what may be the song’s most significant message — for here the vulgarity, to paraphrase Marshall McLuhan, is the message. The original work may not seem vulgar, at first blush, but the 2 Live Crew group are telling us, knowingly or unknowingly, that vulgar is precisely what “Oh, Pretty Woman” is. Whether we agree or disagree, this perception is not one we ought tc suppress.
. As Berlin points out, 329 F.2d at 544-45, Loew's has been widely criticized. Among the critics is no less a figure than Professor (later Justice) Benjamin Kaplan. See Kaplan, An Unhurried View of Copyright (1967) at 69. The Ninth Circuit has said that its Loew's decision “was essentially repudiated by Congress's recognition of parody in the notes to the Copyrights Act of 1976." Fisher v. Dees, 794 F.2d 432, 435 (9th Cir.1986), citing 17 U.S.C.A. § 107 Histori*1440cal Note. (The Note quotes House Report No. 94-1476 as listing "use in a parody of some of the content of the work parodied” as among “the sort of activities the courts might regard as fair use under the circumstances.”)
. There are, to be sure, authorities who would constitutionalize copyright law.. Some would treat satire as sacrosanct under the First Amendment. See, e.g., Goetsch, "Parody as Free Speech — The Replacement of the Fair Use Doctrine By First Amendment Protection," 3 W.New Eng.L.Rev. 39 (1980). Others would accord constitutional protection to any parody a limitation on which would, in the opinion of the judge, impede "the Progress of Science" as that phrase is used in the Copyright Clause, Art. I, § 8 of the Constitution. See Bisceglia, "Parody and Copyright Protection: Turning the Balancing Act Into a Juggling Act,” ASCAP Copyright Law Symposium No. 34 (1987) at 23. As for me, I cannot work up much enthusiasm for turning every copyright case into a mini-Marbury v. Madison [5 U.S. 137, 1 Cranch 137, 2 L.Ed. 60] or New York Times Co. v. Sullivan [376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686.] The major role in determining how to promote the progress of science has been given, after all, to Congress: "As the text of the Constitution makes plain, it is Congress that has been assigned the task of defining the scope of the limited monopoly that should be granted to authors or to inventors_” Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 429, 104 S.Ct. 774, 782, 78 L.Ed.2d 574 (1984). The Ninth Circuit has rejected out of hand the notion that the First Amendment gives parodists a blanket protection from copyright infringement actions. Fisher v. Dees, 794 F.2d 432, 434 n. 2 (9th Cir.1986).
. VII Encyclopedia Britannica (15th ed. 1975) at 768. "Parodeia" joins the Greek words for 'Tie-side” and "to sing” — the roots of our prefix "para” and our word for a lyric poem, “ode.” Webster’s New International Dictionary (3d ed. 1961).
. See also Note, “The Parody Defense to Copyright Infringement: Productive Fair Use After Betamax," 97 Harv.L.Rev. 1395 (1984): "Parody, in its purest form, is the art of creating a new literary, musical, or other artistic work that both mimics and renders ludicrous the style and thought of an original.” The examples cited by the Harvard editors are Cervantes’ Don Quixote (1614), Pope’s The Rape of the Lock (1712), and Austen’s Northanger Abbey (1818), all of which parodied then-popular literary genres. Judge Yankwich provides a much longer list of well known parodies in his article "Parody and Burlesque in the Law of Copyright," 33 Can.B.Rev. 1131 (1955). The art form goes back at least as far as Aristophines, the famous comic dramatist of ancient Greece, whose play The Frogs (405 B.C.)—a work still performed today — spoofed the plays of Aeschylus and Euripides.
Parodies often outlast and outshine the works parodied. A good example is Lewis Carroll’s "You Are Old, Father William,” a takeoff on Southey’s work "The Old Man’s Comforts.” The texts, which are strikingly similar in form, may be read side-by-side in the appendix to Bisceglia, "Parody and Copyright Protection: Turning the Balancing Act into a Juggling Act,” ASCAP Copyright Law Symposium No. 34 (1987) at 37-38.
. I recognize that the affidavit of musicologist Earl Spielman refers to a "one measure guitar lick” that "may have actually been sampled or lifted and then incorporated into the recording of ‘Pretty Woman' as performed by The 2 Live Crew." But the Copyright Act “protects only those sound recordings ‘fixed’ on or after February 15, 1972,” Note, "Digital Sound Sampling, Copyright and Publicity: Protecting Against the Electronic Appropriation of Sounds,” 87 Col. L.Rev. 1723, 1727-28 (1987), citing 17. U.S.C. § 301(c); Orbison and Dees recorded "Oh, Pretty Woman” in 1964. It is arguable, moreover, that a "sampling” of no more than a’ few notes should be governed by the maxim de minimis non curat lex. Id. at 1735. Finally, the plaintiffs have not shown by a preponderance of the evidence that any sampling really occurred here — and to my untrained ear, at least, it is obvious that most of the 2 Live Crew music was not lifted electronically from the 1964 recording.
. The Second Circuit noted by way of dictum in that case that “[e]ven more extensive use [than that necessary to 'conjure up’ the original] 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.” 623 F.2d at 253 n. 1. Professor Nimmer’s treatise asserts that ‘‘[t]his went too far,” adding that ‘‘[t]he Second Circuit later drew back from this extreme_” 3 Nimmer on Copyright, § 13.03[f] at 13-90.9-.10 (1992), citing Warner Bros., Inc. v. American Broadcasting Companies, 654 F.2d 204 (2d Cir.1981), and MCA, Inc. v. Wilson, 677 F.2d 180 (2d Cir.1981). *1445I am by no means sure that the Elsmere dictum did go too far, but it makes no difference in the case at bar; the 2 Live Crew song passes the "conjure up" test in any event.
. Because parody is a special case, moreover, a drop in the popularity of the original "Oh, Pretty Woman” would be of doubtful relevance anyway. "[W]e must accept the harsh truth that parody may quite legitimately aim at garroting the original, destroying it commercially as well as artistically." Kaplan, An Unhurried View of Copyright, at 69.
. This case is thus different from New Line Cinema Corp. v. Bertlesman Music Group, 693 F.Supp. 1517 (S.D.N.Y.1988), where testimony "unequivocally established that the songs ‘Nightmare on My Street’ and ‘Are You Ready for Freddy?’ are in direct competition.” Id. at 1528.
. Vulgarity, in practice, probably cuts against acceptance of the parody defense. See MCA, Inc. v. Wilson, 677 F.2d 180, 185 (2d Cir.1981), where the panel majority said this:
"We are not prepared to hold that a commercial composer can plagiarize a competitor's copyrighted song, substitute dirty lyrics of his own, perform it for commercial gain, and then escape liability by calling the end result a parody or satire on the mores of society." MCA, Inc. v. Wilson, 677 F.2d 180, 185 (2d Cir.1981).
I have some sympathy for this attitude, particularly where the parties really are "competitors;" be the lyrics of the derivative work dirty or clean, it goes against the grain to let a competitor reap where he has not sown. In the case at bar, however, there has been no showing that the parties are competitors. The 2 Live Crew song, moreover, is not just “a parody or satire on the mores of society" — it is a parody or satire on the mores of Orbison’s Pretty Woman and her admirer.