Justice Souter delivered the opinion of the Court.
[510 U.S. 569, 571] We are called upon to decide whether 2 Live Crew's commercial parody of Roy Orbison's song, "Oh, Pretty Woman," [510 U.S. 569,
572] may be a fair use within the meaning of the Copyright Act of 1976, 17 U.S.C. § 107
(1988 ed. and Supp. IV). Although the District Court granted summary judgment for 2 Live Crew, the Court
of Appeals reversed, holding the defense of fair use barred by the song's commercial character and excessive
borrowing. Because we hold that a parody's commercial character is only one element to be weighed in a fair
use enquiry, and that insufficient consideration was given to the nature of parody in weighing the degree of
copying, we reverse and remand.
In 1964, Roy Orbison and William Dees wrote a rock ballad called "Oh, Pretty Woman" and assigned their
rights in it to respondent Acuff-Rose Music, Inc. See Appendix A, infra, at 594. Acuff-Rose registered the
song for copyright protection.
Petitioners Luther R. Campbell, Christopher Wongwon, Mark Ross, and David Hobbs are collectively known
as 2 Live Crew, a popular rap music group. [note 1] In 1989, Campbell wrote a song entitled "Pretty Woman," which
he later described in an affidavit as intended, "through comical lyrics, to satirize the original work…."
App. to Pet. for Cert. 80a. On July 5, 1989, 2 Live Crew's manager informed Acuff-Rose that 2 Live Crew
had written a parody of "Oh, Pretty Woman," that they would afford all credit for ownership and
authorship of the original song to Acuff-Rose, Dees, and Orbison, and that they were willing to pay a fee for
the use they wished to make of it. Enclosed with the letter were a copy of the lyrics and a recording of 2 Live
Crew's song. See Appendix B, infra, at 595. Acuff-Rose's agent refused permission, stating that "I am aware
of the success [510 U.S. 569, 573] enjoyed by 'The 2 Live Crews', but I must
inform you that we cannot permit the use of a parody of 'Oh, Pretty Woman.'" App. to Pet. for Cert. 85a.
Nonetheless, in June or July 1989, [note 2] 2 Live Crew released records, cassette tapes, and compact discs of
"Pretty Woman" in a collection of songs entitled "As Clean As They Wanna Be." The albums and compact
discs identify the authors of "Pretty Woman" as Orbison and Dees and its publisher as Acuff-Rose.
Almost a year later, after nearly a quarter of a million copies of the recording had been sold, Acuff-Rose sued
2 Live Crew and its record company, Luke Skyywalker Records, for copyright infringement. The District
Court granted summary judgment for 2 Live Crew, [note 3] reasoning that the commercial purpose of 2 Live
Crew's song was no bar to fair use; that 2 Live Crew's version was a parody, which "quickly degenerates into
a play on words, substituting predictable lyrics with shocking ones" to show "how bland and banal the
Orbison song" is; that 2 Live Crew had taken no more than was necessary to "conjure up" the original in
order to parody it; and that it was "extremely unlikely that 2 Live Crew's song could adversely affect the
market for the original." 754 F. Supp. 1150, 11541155, 11571158 (MD Tenn. 1991). The
District Court weighed these factors and held that 2 Live Crew's song made fair use of Orbison's original. Id.,
The Court of Appeals for the Sixth Circuit reversed and remanded. 972 F.2d 1429, 1439 (1992). Although it
assumed for the purpose of its opinion that 2 Live Crew's song [510 U.S. 569,
574] was a parody of the Orbison original, the Court of Appeals thought the District Court had put
too little emphasis on the fact that "every commercial use… is presumptively… unfair," Sony
Corp. of America v. Universal City Studios, Inc., 464 U. S. 417, 451 (1984), and it held that "the admittedly
commercial nature" of the parody "requires the conclusion" that the first of four factors relevant under the
statute weighs against a finding of fair use. 972 F.2d, at 1435, 1437. Next, the Court of Appeals determined
that, by "taking the heart of the original and making it the heart of a new work," 2 Live Crew had,
qualitatively, taken too much. Id., at 1438. Finally, after noting that the effect on the potential market for the
original (and the market for derivative works) is "undoubtedly the single most important element of fair
use," Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U. S. 539, 566 (1985), the Court of Appeals
faulted the District Court for "refus[ing] to indulge the presumption" that "harm for purposes of the fair
use analysis has been established by the presumption attaching to commercial uses." 972 F.2d, at
14381439. In sum, the court concluded that its "blatantly commercial purpose… prevents
this parody from being a fair use." Id., at 1439.
We granted certiorari, 507 U. S. 1003 (1993), to determine whether 2 Live Crew's commercial parody could
be a fair use.
It is uncontested here that 2 Live Crew's song would be an infringement of Acuff-Rose's rights in "Oh,
Pretty Woman," under the Copyright Act of 1976, 17 U.S.C. § 106 (1988 ed. and Supp. IV), but for a
finding of fair use through parody. [note 4] [510 U.S. 569, 575] From the infancy of copyright protection, some opportunity for fair use of copyrighted materials has been thought necessary to fulfill copyright's very purpose, "[t]o promote the Progress of Science and useful Arts…." U. S.
Const., Art. I, § 8, cl. 8.[note 5] For as Justice Story explained, "[i]n truth, in literature, in science and in art, there are, and can be, few, if any, things, which in an abstract sense, are strictly new and original throughout. Every book in literature, science and art, borrows, and must necessarily borrow, and use much which was well known and used before." Emerson v. Davies, 8 F. Cas. 615, 619 (No. 4,436) (CCD Mass. 1845). Similarly, Lord Ellenborough expressed the inherent tension in the need simultaneously to protect copyrighted material
and to allow others to build upon it when he wrote, "while I shall think myself bound to secure every man in
the enjoyment of his copyright, one must not put manacles upon science." [510 U.S.
569, 576] Carey v. Kearsley, 4 Esp. 168, 170, 170 Eng. Rep. 679, 681 (K.B. 1803). In copyright cases
brought under the Statute of Anne of 1710, [note 6] English courts held that in some instances "fair abridgements" would not infringe an author's rights, see W. Patry, The Fair Use Privilege in Copyright Law 617
(1985) (hereinafter Patry); Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105 (1990) (hereinafter
Leval), and although the First Congress enacted our initial copyright statute, Act of May 31, 1790, 1 Stat. 124,
without any explicit reference to "fair use," as it later came to be known, [note 7] the doctrine was recognized by the American courts nonetheless.
In Folsom v. Marsh, 9 F. Cas. 342 (No. 4,901) (CCD Mass. 1841), Justice Story distilled the essence of law and methodology from the earlier cases: "look to the nature and objects of the selections made, the quantity and
value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits,
or supersede the objects, of the original work." Id., at 348. Thus expressed, fair use remained exclusively
judge-made doctrine until the passage of the 1976 Copyright Act, in which Justice Story's summary is
discernible: [note 8]
"§ 107. Limitations on exclusive rights: Fair use
"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 [510 U.S. 569, 577] 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
non-profit 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;
"(4) the effect of the use upon the potential market for or value of the copyrighted work.
"The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made
upon consideration of all the above factors." 17 U.S.C. § 107 (1988 ed. and Supp. IV).
Congress meant § 107 "to restate the present judicial doctrine of fair use, not to change,
narrow, or enlarge it in any way" and intended that courts continue the common-law tradition of fair use
adjudication. H. R. Rep. No. 941476, p. 66 (1976) (hereinafter House Report); S. Rep. No.
94473, p. 62 (1975) (hereinafter Senate Report). The fair use doctrine thus "permits [and requires]
courts 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 (1990) (internal quotation marks
and citation omitted).
The task is not to be simplified with bright-line rules, for the statute, like the doctrine it recognizes, calls for case-by-case analysis. Harper & Row, 471 U. S., at 560; Sony, 464 U. S., at 448, and n. 31; House Report, pp. 6566; Senate Report, p. 62. The text employs the terms "including" and "such as" in the preamble
paragraph to indicate the "illustrative and not limitative" function of the examples given, § 101; see
Harper & Row, supra, at 561, which thus provide only general guidance about the sorts of copying that courts
and [510 U.S. 569, 578] Congress most commonly had found to be fair uses. [note 9] Nor may the four statutory factors be treated in isolation, one from another. All are to be explored, and the results weighed together, in light of the purposes of copyright. See Leval 11101111; Patry &
Perlmutter, Fair Use Misconstrued: Profit, Presumptions, and Parody, 11 Cardozo Arts & Ent. L. J. 667,
685687 (1993) (hereinafter Patry & Perlmutter). [note 10]
The first factor in a fair use enquiry is "the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes." § 107(1). This factor draws on Justice
Story's formulation, "the nature and objects of the selections made." Folsom v. Marsh, supra, at 348. The
enquiry here may be guided by the examples given in the preamble to § 107, looking to whether the
use is for criticism, or comment, or news report- [510 U.S. 569, 579] ing, and
the like, see § 107. The central purpose of this investigation is to see, in Justice Story's words, whether
the new work merely "supersede[s] the objects" of the original creation, Folsom v. Marsh, supra, at 348; accord,
Harper & Row, supra, at 562 ("supplanting" the original), or instead adds something new, with a further
purpose or different character, altering the first with new expression, meaning, or message; it asks, in other
words, whether and to what extent the new work is "transformative." Leval 1111. Although such
transformative use is not absolutely necessary for a finding of fair use, Sony, supra, at 455, n. 40, [note 11] the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works. Such works thus lie at the heart of the fair use doctrine's guarantee of breathing space within the confines of copyright, see, e. g., Sony, supra, at 478480 (Blackmun, J., dissenting), and the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.
This Court has only once before even considered whether parody may be fair use, and that time issued no
opinion because of the Court's equal division. Benny v. Loew's Inc., 239 F.2d 532 (CA9 1956), aff 'd sub nom.
Columbia Broadcasting System, Inc. v. Loew's Inc., 356 U. S. 43 (1958). Suffice it to say now that parody has an
obvious claim to transformative value, as Acuff-Rose itself does not deny. Like less ostensibly humorous
forms of criticism, it can provide social benefit, by shedding light on an earlier work, and, in the process,
creating a new one. We thus line up with the courts that have held that parody, like other comment or criticism, may claim fair use under § 107. See, e. g., Fisher v. Dees, 794 F.2d 432 (CA9 1986) ("When Sonny
Sniffs Glue," a parody of "When Sunny Gets Blue," is fair use); Elsmere Music, Inc. v. National Broadcasting Co.,
482 F. Supp. 741 [510 U.S. 569, 580] (SDNY), aff 'd, 623 F.2d 252 (CA2 1980)
("I Love Sodom," a "Saturday Night Live" television parody of "I Love New York," is fair use); see also
House Report, p. 65; Senate Report, p. 61 ("[U]se in a parody of some of the content of the work parodied"
may be fair use).
The germ of parody lies in the definition of the Greek parodeia, quoted in Judge Nelson's Court of Appeals
dissent, as "a song sung alongside another." 972 F.2d, at 1440, quoting 7 Encyclopedia Britannica 768 (15th
ed. 1975). Modern dictionaries accordingly describe a parody as a "literary or artistic work that imitates the
characteristic style of an author or a work for comic effect or ridicule," [note 12] or as a "composition in prose or
verse in which the characteristic turns of thought and phrase in an author or class of authors are imitated in
such a way as to make them appear ridiculous." [note 13] For the purposes of copyright law, the nub of the
definitions, and the heart of any parodist's claim to quote from existing material, is the use of some elements
of a prior author's composition to create a new one that, at least in part, comments on that author's works.
See, e. g., Fisher v. Dees, supra, at 437; MCA, Inc. v. Wilson, 677 F.2d 180, 185 (CA2 1981). If, on the contrary,
the commentary has no critical bearing on the substance or style of the original composition, which the alleged infringer merely uses to get attention or to avoid the drudgery in working up something fresh, the claim
to fairness in borrowing from another's work diminishes accordingly (if it does not vanish), and other
factors, like the extent of its commerciality, loom larger. [note 14] Parody needs to mimic [510 U.S. 569, 581] an original to make its point, and so has some claim to use the creation of its victim's (or collective victims') imagination, whereas satire can stand on its own two feet and so requires justification
for the very act of borrowing. [note 15] See ibid.; Bisceglia, Parody and Copyright Protection: Turning the Balancing Act Into a Juggling Act, in ASCAP, Copyright Law Symposium, No. 34, p. 25 (1987).
The fact that parody can claim legitimacy for some appropriation does not, of course, tell either parodist or
judge much about where to draw the line. Like a book review quoting the copyrighted material criticized,
parody may or may not be fair use, and petitioners' suggestion that any parodic use is presumptively fair has
no more justification in law or fact than the equally hopeful claim that any use for news reporting should be
presumed fair, see Harper &Row, 471 U. S., at 561. The Act has no hint of an evidentiary preference for
parodists over their victims, and no workable presumption for parody could take account of the fact that
parody often shades into satire when society is lampooned through its creative artifacts, or that a work may
contain both parodic and nonparodic elements. Accordingly, parody, like any other use, has to work its way
through the relevant factors, and be judged case by case, in light of the ends of the copyright law.
Here, the District Court held, and the Court of Appeals assumed, that 2 Live Crew's "Pretty Woman"
contains par- [510 U.S. 569, 582] ody, commenting on and criticizing the
original work, whatever it may have to say about society at large. As the District Court remarked, the words
of 2 Live Crew's song copy the original's first line, but then "quickly degenerat[e] into a play on words,
substituting predictable lyrics with shocking ones… [that] derisively demonstrat[e] how bland and
banal the Orbison song seems to them." 754 F. Supp., at 1155 (footnote omitted). Judge Nelson, dissenting
below, came to the same conclusion, that the 2 Live Crew song "was clearly intended to ridicule the white-bread original" and "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."
972 F.2d, at 1442. Although the majority below had difficulty discerning any criticism of the original in 2
Live Crew's song, it assumed for purposes of its opinion that there was some. Id., at 14351436, and
We have less difficulty in finding that critical element in 2 Live Crew's song than the Court of Appeals did,
although having found it we will not take the further step of evaluating its quality. The threshold question
when fair use is raised in defense of parody is whether a parodic character may reasonably be perceived. [note 16] Whether, going beyond that, parody is in good taste or bad does not and should not matter to fair use. As Justice Holmes explained, "[i]t would be a dangerous undertaking for persons trained only to the law to
constitute themselves final judges of the worth of [a work], outside of the narrowest and most obvious limits.
At [510 U.S. 569, 583] the one extreme some works of genius would be sure to
miss appreciation. Their very novelty would make them repulsive until the public had learned the new
language in which their author spoke." Bleistein v. Donaldson Lithographing Co., 188 U. S. 239, 251 (1903) (circus
posters have copyright protection); cf. Yankee Publishing Inc. v. News America Publishing, Inc., 809 F. Supp. 267,
280 (SDNY 1992) (Leval, J.) ("First Amendment protections do not apply only to those who speak clearly,
whose jokes are funny, and whose parodies succeed") (trademark case).
While we might not assign a high rank to the parodic element here, we think it fair to say that 2 Live Crew's
song reasonably could be perceived as commenting on the original or criticizing it, to some degree. 2 Live
Crew juxtaposes the romantic musings of a man whose fantasy comes true, with degrading taunts, a bawdy
demand for sex, and a sigh of relief from paternal responsibility. The later words can be taken as a comment
on the naiveté of the original of an earlier day, as a rejection of its sentiment that ignores the ugliness
of street life and the debasement that it signifies. It is this joinder of reference and ridicule that marks off the
author's choice of parody from the other types of comment and criticism that traditionally have had a claim
to fair use protection as transformative works. [note 17]
The Court of Appeals, however, immediately cut short the enquiry into 2 Live Crew's fair use claim by
confining its treatment of the first factor essentially to one relevant fact, the commercial nature of the use.
The court then inflated the significance of this fact by applying a presumption osten-
[510 U.S. 569, 584] sibly culled from Sony, that "every commercial use of copyrighted material is
presumptively… unfair…." Sony, 464 U. S., at 451. In giving virtually dispositive weight to the
commercial nature of the parody, the Court of Appeals erred.
The language of the statute makes clear that the commercial or nonprofit educational purpose of a work is
only one element of the first factor enquiry into its purpose and character. Section 107(1) uses the term
"including" to begin the dependent clause referring to commercial use, and the main clause speaks of a
broader investigation into "purpose and character." As we explained in Harper &Row, Congress resisted
attempts to narrow the ambit of this traditional enquiry by adopting categories of presumptively fair use, and
it urged courts to preserve the breadth of their traditionally ample view of the universe of relevant evidence.
471 U. S., at 561; House Report, p. 66. Accordingly, the mere fact that a use is educational and not for profit
does not insulate it from a finding of infringement, any more than the commercial character of a use bars a
finding of fairness. If, indeed, commerciality carried presumptive force against a finding of fairness, the
presumption would swallow nearly all of the illustrative uses listed in the preamble paragraph of § 107,
including news reporting, comment, criticism, teaching, scholarship, and research, since these activities "are
generally conducted for profit in this country." Harper & Row, supra, at 592 (Brennan, J., dissenting).
Congress could not have intended such a rule, which certainly is not inferable from the common-law cases,
arising as they did from the world of letters in which Samuel Johnson could pronounce that "[n]o man but a
blockhead ever wrote, except for money." 3 Boswell's Life of Johnson 19 (G. Hill ed. 1934).
Sony itself called for no hard evidentiary presumption. There, we emphasized the need for a "sensitive
balancing of interests," 464 U. S., at 455, n. 40, noted that Congress had "eschewed a rigid, bright-line
approach to fair use," id., at [510 U.S. 569, 585] 449, n. 31, and stated that the
commercial or nonprofit educational character of a work is "not conclusive," id., at 448449, but
rather a fact to be "weighed along with other[s] in fair use decisions," id., at 449, n. 32 (quoting House
Report, p. 66). The Court of Appeals's elevation of one sentence from Sony to a per se rule thus runs as much
counter to Sony itself as to the long common-law tradition of fair use adjudication. Rather, as we explained in
Harper & Row, Sony stands for the proposition that the "fact that a publication was commercial as opposed
to nonprofit is a separate factor that tends to weigh against a finding of fair use." 471 U. S., at 562. But that is
all, and the fact that even the force of that tendency will vary with the context is a further reason against
elevating commerciality to hard presumptive significance. The use, for example, of a copyrighted work to
advertise a product, even in a parody, will be entitled to less indulgence under the first factor of the fair use
enquiry than the sale of a parody for its own sake, let alone one performed a single time by students in
school. See generally Patry & Perlmutter 679680; Fisher v. Dees, 794 F.2d, at 437; Maxtone-Graham v.
Burtchaell, 803 F.2d 1253, 1262 (CA2 1986); Sega Enterprises Ltd. v. Accolade, Inc., 977 F.2d 1510, 1522 (CA9
1992). [note 18] [510 U.S. 569, 586]
The second statutory factor, "the nature of the copyrighted work," § 107(2), draws on Justice Story's
expression, the "value of the materials used." Folsom v. Marsh, 9 F. Cas., at 348. This factor calls for
recognition that some works are closer to the core of intended copyright protection than others, with the
consequence that fair use is more difficult to establish when the former works are copied. See, e. g., Stewart v.
Abend, 495 U. S., at 237238 (contrasting fictional short story with factual works); Harper & Row, 471
U. S., at 563564 (contrasting soon-to-be-published memoir with published speech); Sony, 464 U. S.,
at 455, n. 40 (contrasting motion pictures with news broadcasts); Feist, 499 U. S., at 348351
(contrasting creative works with bare factual compilations); 3 M. Nimmer & D. Nimmer, Nimmer on
Copyright § 13.05[A] (1993) (hereinafter Nimmer); Leval 1116. We agree with both the District
Court and the Court of Appeals that the Orbison original's creative expression for public dissemination falls
within the core of the copyright's protective purposes. 754 F. Supp., at 11551156; 972 F.2d, at 1437.
This fact, however, is not much help in this case, or ever likely to help much in separating the fair use sheep
from the infringing goats in a parody case, since parodies almost invariably copy publicly known, expressive
The third factor asks whether "the amount and substantiality of the portion used in relation to the
copyrighted work as a whole," § 107(3) (or, in Justice Story's words, "the quantity and value of the
materials used," Folsom v. Marsh, supra, at 348) are reasonable in relation to the purpose of the copying. Here,
attention turns to the persuasiveness of a parodist's justification for the particular copying done, and the
enquiry will harken back to the first of the statutory factors, for, as in prior cases, we recognize that the
extent of permissible copying varies with the purpose and character [510 U.S. 569,
587] of the use. See Sony, supra, at 449450 (reproduction of entire work "does not have its
ordinary effect of militating against a finding of fair use" as to home videotaping of television programs);
Harper & Row, supra, at 564 ("[E]ven substantial quotations might qualify as fair use in a review of a
published work or a news account of a speech" but not in a scoop of a soon-to-be-published memoir). The
facts bearing on this factor will also tend to address the fourth, by revealing the degree to which the parody
may serve as a market substitute for the original or potentially licensed derivatives. See Leval 1123.
The District Court considered the song's parodic purpose in finding that 2 Live Crew had not helped
themselves overmuch. 754 F. Supp., at 11561157. The Court of Appeals disagreed, stating that
"[w]hile it may not be inappropriate to find that no more was taken than necessary, the copying was
qualitatively substantial….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." 972 F.2d, at 1438.
The Court of Appeals is of course correct that this factor calls for thought not only about the quantity of the
materials used, but about their quality and importance, too. In Harper & Row, for example, the Nation had
taken only some 300 words out of President Ford's memoirs, but we signaled the significance of the
quotations in finding them to amount to "the heart of the book," the part most likely to be newsworthy and
important in licensing serialization. 471 U. S., at 564566, 568 (internal quotation marks omitted). We
also agree with the Court of Appeals that whether "a substantial portion of the infringing work was copied
verbatim" from the copyrighted work is a relevant question, see id., at 565, for it may reveal a dearth of
transformative character or purpose under the first factor, or a greater likelihood of market harm under the
fourth; a work composed primarily of an original, particularly its heart, with little added or changed, [510 U.S. 569, 588] is more likely to be a merely superseding use, fulfilling demand
for the original.
Where we part company with the court below is in applying these guides to parody, and in particular to
parody in the song before us. Parody presents a difficult case. Parody's humor, or in any event its comment,
necessarily springs from recognizable allusion to its object through distorted imitation. Its art lies in the
tension between a known original and its parodic twin. When parody takes aim at a particular original work,
the parody must be able to "conjure up" at least enough of that original to make the object of its critical wit
recognizable. See, e. g., Elsmere Music, 623 F.2d, at 253, n. 1; Fisher v. Dees, 794 F.2d, at 438439. What
makes for this recognition is quotation of the original's most distinctive or memorable features, which the
parodist can be sure the audience will know. Once enough has been taken to assure identification, how
much more is reasonable will depend, say, on the extent to which the song's overriding purpose and
character is to parody the original or, in contrast, the likelihood that the parody may serve as a market
substitute for the original. But using some characteristic features cannot be avoided.
We think the Court of Appeals was insufficiently appreciative of parody's need for the recognizable sight or
sound when it ruled 2 Live Crew's use unreasonable as a matter of law. It is true, of course, that 2 Live Crew
copied the characteristic opening bass riff (or musical phrase) of the original, and true that the words of the
first line copy the Orbison lyrics. But if quotation of the opening riff and the first line may be said to go to
the "heart" of the original, the heart is also what most readily conjures up the song for parody, and it is the
heart at which parody takes aim. Copying does not become excessive in relation to parodic purpose merely
because the portion taken was the original's heart. If 2 Live Crew had copied a significantly less memorable
part of the original, it is difficult to see how its parodic character [510 U.S. 569,
589] would have come through. See Fisher v. Dees, supra, at 439.
This is not, of course, to say that anyone who calls himself a parodist can skim the cream and get away scot
free. In parody, as in news reporting, see Harper & Row, supra, context is everything, and the question of
fairness asks what else the parodist did besides go to the heart of the original. It is significant that 2 Live
Crew not only copied the first line of the original, but thereafter departed markedly from the Orbison lyrics
for its own ends. 2 Live Crew not only copied the bass riff and repeated it, [note 19] but also produced otherwise distinctive sounds, interposing "scraper" noise, overlaying the music with solos in different keys, and altering the drum beat. See 754 F. Supp., at 1155. This is not a case, then, where "a substantial portion" of the parody
itself is composed of a "verbatim" copying of the original. It is not, that is, a case where the parody is so
insubstantial, as compared to the copying, that the third factor must be resolved as a matter of law against
Suffice it to say here that, as to the lyrics, we think the Court of Appeals correctly suggested that "no more
was taken than necessary," 972 F.2d, at 1438, but just for that reason, we fail to see how the copying can be
excessive in relation to its parodic purpose, even if the portion taken is the original's "heart." As to the music,
we express no opinion whether repetition of the bass riff is excessive copying, and we remand to permit
evaluation of the amount taken, in light of the song's parodic purpose and character, its transformative
elements, and considerations of the potential for market substitution sketched more fully below. [510 U.S. 569, 590]
The fourth fair use factor is "the effect of the use upon the potential market for or value of the copyrighted
work." § 107(4). It requires courts to consider not only the extent of market harm caused by the
particular actions of the alleged infringer, but also "whether unrestricted and widespread conduct of the
sort engaged in by the defendant… would result in a substantially adverse impact on the potential
market" for the original. Nimmer § 13.05[A], p. 13 102.61 (footnote omitted); accord,
Harper &Row, 471 U. S., at 569; Senate Report, p. 65; Folsom v. Marsh, 9 F. Cas., at 349. The enquiry "must
take account not only of harm to the original but also of harm to the market for derivative works." Harper &
Row, supra, at 568.
Since fair use is an affirmative defense, [note 20] its proponent would have difficulty carrying the burden of demonstrating fair use without favorable evidence about relevant markets. [note 21] In moving for summary judgment, 2 Live Crew left themselves at just such a disadvantage when they failed to address the effect on the market for rap derivatives, and confined themselves to uncontroverted submissions that there was no likely effect on the market for the original. They did not, however, thereby subject themselves to the evidentiary presumption applied by the Court of Appeals. In assessing the likelihood of significant market harm, the Court of Ap- [510 U.S. 569, 591] peals quoted from language in Sony
that "'[i]f 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.'" 972 F.2d, at 1438, quoting Sony, 464 U. S.,
at 451. The court reasoned that because "the use of the copyrighted work is wholly commercial,… we
presume that a likelihood of future harm to Acuff-Rose exists." 972 F.2d, at 1438. In so doing, the court
resolved the fourth factor against 2 Live Crew, just as it had the first, by applying a presumption about the
effect of commercial use, a presumption which as applied here we hold to be error.
No "presumption" or inference of market harm that might find support in Sony is applicable to a case
involving something beyond mere duplication for commercial purposes. Sony's discussion of a presumption
contrasts a context of verbatim copying of the original in its entirety for commercial purposes, with the
noncommercial context of Sony itself (home copying of television programming). In the former
circumstances, what Sony said simply makes common sense: when a commercial use amounts to mere
duplication of the entirety of an original, it clearly "supersede[s] the objects," Folsom v. Marsh, supra, at 348, of
the original and serves as a market replacement for it, making it likely that cognizable market harm to the
original will occur. Sony, supra, at 451. But when, on the contrary, the second use is transformative, market
substitution is at least less certain, and market harm may not be so readily inferred. Indeed, as to parody pure
and simple, it is more likely that the new work will not affect the market for the original in a way cognizable
under this factor, that is, by acting as a substitute for it ("supersed[ing] [its] objects"). See Leval 1125; Patry &
Perlmutter 692, 697698. This is so because the parody and the original usually serve different
market functions. Bisceglia, ASCAP, Copyright Law Symposium, No. 34, at 23.
We do not, of course, suggest that a parody may not harm the market at all, but when a lethal parody, like a
scathing [510 U.S. 569, 592] theater review, kills demand for the original, it does
not produce a harm cognizable under the Copyright Act. Because "parody may quite legitimately aim at
garroting the original, destroying it commercially as well as artistically," B. Kaplan, An Unhurried View of
Copyright 69 (1967), the role of the courts is to distinguish between "[b]iting criticism [that merely]
suppresses demand [and] copyright infringement[, which] usurps it." Fisher v. Dees, 794 F.2d, at 438.
This distinction between potentially remediable displacement and unremediable disparagement is reflected in
the rule that there is no protectible derivative market for criticism. The market for potential derivative uses
includes only those that creators of original works would in general develop or license others to develop. Yet
the unlikelihood that creators of imaginative works will license critical reviews or lampoons of their own
productions removes such uses from the very notion of a potential licensing market. "People ask…
for criticism, but they only want praise." S. Maugham, Of Human Bondage 241 (Penguin ed. 1992). Thus, to
the extent that the opinion below may be read to have considered harm to the market for parodies of "Oh,
Pretty Woman," see 972 F.2d, at 1439, the court erred. Accord, Fisher v. Dees, supra, at 437; Leval 1125; Patry
& Perlmutter 688691. [note 22]
In explaining why the law recognizes no derivative market for critical works, including parody, we have, of
course, been speaking of the later work as if it had nothing but a critical aspect (i. e., "parody pure and
simple," supra, at 591). But the later work may have a more complex character, with effects not only in the
arena of criticism but also in protectible markets for derivative works, too. In that sort of case, the law looks
beyond the criticism to the other elements of the work, as it does here. 2 Live Crew's song comprises
not [510 U.S. 569, 593] only parody but also rap music, and the derivative
market for rap music is a proper focus of enquiry, see Harper & Row, supra, at 568; Nimmer § 13.05[B].
Evidence of substantial harm to it would weigh against a finding of fair use, [note 23] because the licensing of
derivatives is an important economic incentive to the creation of originals. See 17 U.S.C. § 106(2)
(copyright owner has rights to derivative works). Of course, the only harm to derivatives that need concern
us, as discussed above, is the harm of market substitution. The fact that a parody may impair the market for
derivative uses by the very effectiveness of its critical commentary is no more relevant under copyright than
the like threat to the original market. [note 24]
Although 2 Live Crew submitted uncontroverted affidavits on the question of market harm to the original,
neither they, nor Acuff-Rose, introduced evidence or affidavits addressing the likely effect of 2 Live Crew's
parodic rap song on the market for a nonparody, rap version of "Oh, Pretty Woman." And while Acuff-Rose
would have us find evidence of a rap market in the very facts that 2 Live Crew recorded a rap parody of "Oh,
Pretty Woman" and another rap group sought a license to record a rap derivative, there was no evidence that
a potential rap market was harmed in any way by 2 Live Crew's parody, rap version. The fact that 2 Live
Crew's parody sold as part of a collection of rap songs says very little about the parody's effect on a market
for a rap version of the original, either of the music alone or of the music with its lyrics. The District Court
essentially passed [510 U.S. 569, 594] on this issue, observing that Acuff-Rose is
free to record "whatever version of the original it desires," 754 F. Supp., at 1158; the Court of Appeals went
the other way by erroneous presumption. Contrary to each treatment, it is impossible to deal with the fourth
factor except by recognizing that a silent record on an important factor bearing on fair use disentitled the
proponent of the defense, 2 Live Crew, to summary judgment. The evidentiary hole will doubtless be plugged
It was error for the Court of Appeals to conclude that the commercial nature of 2 Live Crew's parody of
"Oh, Pretty Woman" rendered it presumptively unfair. No such evidentiary presumption is available to
address either the first factor, the character and purpose of the use, or the fourth, market harm, in
determining whether a transformative use, such as parody, is a fair one. The court also erred in holding that 2
Live Crew had necessarily copied excessively from the Orbison original, considering the parodic purpose of
the use. We therefore reverse the judgment of the Court of Appeals and remand the case for further
proceedings consistent with this opinion.
It is so ordered.
- Rap has been defined as a "style of black American popular
music consisting of improvised rhymes performed to a rhythmic accompaniment." The Norton/Grove
Concise Encyclopedia of Music 613 (1988). 2 Live Crew plays "[b]ass music," a regional, hip-hop style of rap
from the Liberty City area of Miami, Florida. Brief for Petitioners 34.
- The parties argue about the timing. 2 Live Crew contends that the album
was released on July 15, and the District Court so held. 754 F. Supp. 1150, 1152 (MD Tenn. 1991). The
Court of Appeals states that Campbell's affidavit puts the release date in June, and chooses that date. 972 F.
2d 1429, 1432 (CA6 1992). We find the timing of the request irrelevant for purposes of this enquiry. See n.
18, infra, discussing good faith.
- 2 Live Crew's motion to dismiss was converted to a motion for summary judgment. Acuff-Rose defended against the motion, but filed no cross-motion.
- Section 106 provides in part:
"Subject to sections 107 through 120,
the owner of copyright under this title has the exclusive rights to do and to authorize any of the
"(1) to reproduce the copyrighted work in copies or phonorecords;
"(2) to prepare
derivative works based upon the copyrighted work;
[510 U.S. 569, 575] "(3) to distribute copies or phonorecords of
the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or
A derivative work is defined as one "based upon one or more preexisting works,
such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound
recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast,
transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other
modifications which, as a whole, represent an original work of authorship, is a 'derivative work.'" 17 U.S.C.
§ 101. 2 Live Crew concedes that it is not entitled to a compulsory license under § 115
because its arrangement changes "the basic melody or fundamental character" of the original.
- The exclusion of facts and ideas from copyright protection serves that
goal as well. See § 102(b) ("In no case does copyright protection for an original work of authorship
extend to any idea, procedure, process, system, method of operation, concept, principle, or
discovery…"); Feist Publications, Inc. v. Rural Telephone Service Co., 499 U. S. 340, 359 (1991) ("[F]acts
contained in existing works may be freely copied"); Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.
S. 539, 547 (1985) (copyright owner's rights exclude facts and ideas, and fair use).
- An Act for the Encouragement of Learning, 8 Anne, ch. 19.
- Patry 27, citing Lawrence v. Dana, 15 F. Cas. 26, 60 (No. 8,136) (CCD
- Leval 1105. For a historical account of the development of the fair use
doctrine, see Patry 164.
- See Senate Report, p. 62 ("[W]hether a use referred to in the first
sentence of section 107 is a fair use in a particular case will depend upon the application of the determinative
- Because the fair use enquiry often requires close questions of judgment
as to the extent of permissible borrowing in cases involving parodies (or other critical works), courts may also
wish to bear in mind that the goals of the copyright law, "to stimulate the creation and publication of edifying
matter," Leval 1134, are not always best served by automatically granting injunctive relief when parodists are
found to have gone beyond the bounds of fair use. See 17 U.S.C. § 502(a) (court "may…
grant… injunctions on such terms as it may deem reasonable to prevent or restrain infringement")
(emphasis added); Leval 1132 (while in the "vast majority of cases, [an injunctive] remedy is justified because
most infringements are simple piracy," such cases are "worlds apart from many of those raising reasonable
contentions of fair use" where "there may be a strong public interest in the publication of the secondary
work [and] the copyright owner's interest may be adequately protected by an award of damages for whatever
infringement is found"); Abend v. MCA, Inc., 863 F.2d 1465, 1479 (CA9 1988) (finding "special
circumstances" that would cause "great injustice" to defendants and "public injury" were injunction to issue),
aff 'd sub nom. Stewart v. Abend, 495 U. S. 207 (1990).
- The obvious statutory exception to this focus on transformative uses is the
straight reproduction of multiple copies for classroom distribution.
- American Heritage Dictionary 1317 (3d ed. 1992).
- 11 Oxford English Dictionary 247 (2d ed. 1989).
- A parody that more loosely targets an original than the parody presented
here may still be sufficiently aimed at an original work to come within our analysis of parody. If a parody
whose wide dissemination in the market runs the risk of serving as a substitute for the original or licensed
derivatives (see infra, at 590594, discussing factor four), it is more incumbent on one claiming fair use
to establish the extent of transformation and the parody's critical relationship to the original. By con- [510 U.S. 569, 581] trast, when there is little or no risk of market substitution, whether because of the large extent of transformation of the earlier work, the new work's minimal distribution in the market, the small extent to which it borrows from an original, or other factors, taking parodic aim at an original is a less critical factor in the analysis, and looser forms of parody may be found to be fair use, as may satire with lesser justification for
the borrowing than would otherwise be required.
- Satire has been defined as a work "in which prevalent follies or vices are
assailed with ridicule," 14 Oxford English Dictionary, supra, at 500, or are "attacked through irony, derision,
or wit," American Heritage Dictionary, supra, at 1604.
- The only further judgment, indeed, that a court may pass on a work goes
to an assessment of whether the parodic element is slight or great, and the copying small or extensive in
relation to the parodic element, for a work with slight parodic element and extensive copying will be more
likely to merely "supersede the objects" of the original. See infra, at 586594, discussing factors three
- We note in passing that 2 Live Crew need not label their whole album, or
even this song, a parody in order to claim fair use protection, nor should 2 Live Crew be penalized for this
being its first parodic essay. Parody serves its goals whether labeled or not, and there is no reason to require
parody to state the obvious (or even the reasonably perceived). See Patry & Perlmutter 716717.
- Finally, regardless of the weight one might place on the alleged infringer's state of mind, compare Harper &Row, 471 U. S., at 562 (fair use presupposes good faith and fair
dealing) (quotation marks omitted), with Folsom v. Marsh, 9 F. Cas. 342, 349 (No. 4,901) (CCD Mass. 1841)
(good faith does not bar a finding of infringement); Leval 11261127 (good faith irrelevant to fair use
analysis), we reject Acuff-Rose's argument that 2 Live Crew's request for permission to use the original
should be weighed against a finding of fair use. Even if good faith were central to fair use, 2 Live Crew's
actions do not necessarily suggest that they believed their version was not fair use; the offer may simply have
been made in a good-faith effort to avoid this litigation. If the use is otherwise fair, then no permission need
be sought or granted. Thus, being denied permission to use a work does not weigh against a finding of fair
use. See Fisher v. Dees, 794 F.2d 432, 437 (CA9 1986).
- This may serve to heighten the comic effect of the parody, as one witness
stated, App. 32a, Affidavit of Oscar Brand; see also Elsmere Music, Inc. v. National Broadcasting Co., 482 F. Supp.
741, 747 (SDNY 1980) (repetition of "I Love Sodom"), or serve to dazzle with the original's music, as Acuff-Rose now contends.
- Harper & Row, 471 U. S., at 561; H. R. Rep. No. 102836, p. 3, n.
- Even favorable evidence, without more, is no guarantee of fairness. Judge
Leval gives the example of the film producer's appropriation of a composer's previously unknown song that
turns the song into a commercial success; the boon to the song does not make the film's simple copying fair.
Leval 1124, n. 84. This factor, no less than the other three, may be addressed only through a "sensitive
balancing of interests." Sony Corp. of America v. Universal City Studios, Inc., 464 U. S. 417, 455, n. 40 (1984).
Market harm is a matter of degree, and the importance of this factor will vary, not only with the amount of
harm, but also with the relative strength of the showing on the other factors.
- We express no opinion as to the derivative markets for works using
elements of an original as vehicles for satire or amusement, making no comment on the original or criticism
- See Nimmer § 13.05[A], p. 13102.61 ("a substantially
adverse impact on the potential market"); Leval 1125 ("reasonably substantial" harm); Patry & Perlmutter
- In some cases it may be difficult to determine whence the harm flows. In
such cases, the other fair use factors may provide some indicia of the likely source of the harm. A work
whose overriding purpose and character is parodic and whose borrowing is slight in relation to its parody
will be far less likely to cause cognizable harm than a work with little parodic content and much copying.
[510 U.S. 569, 594]
APPENDIX A TO OPINION OF THE COURT
"Oh, Pretty Woman" by Roy Orbison and William Dees
Pretty Woman, walking down the street,
Pretty Woman, the kind I like to meet,
Pretty Woman, I don't believe you,
you're not the truth,
No one could look as good as you
Pretty Woman, won't you pardon me,
Pretty Woman, I couldn't help but see,
[510 U.S. 569, 595] Pretty Woman, that you look lovely as can be
Are you lonely just like me?
Pretty Woman, stop a while,
Pretty Woman, talk a while,
Pretty Woman give your smile to me
Pretty Woman, yeah, yeah, yeah
Pretty Woman, look my way,
Pretty Woman, say you'll stay with me
'Cause I need you, I'll treat you right
Come to me baby, Be mine tonight
Pretty Woman, don't walk on by,
Pretty Woman, don't make me cry,
Pretty Woman, don't walk away,
Hey, O. K.
If that's the way it must be, O. K.
I guess I'll go on home, it's late
There'll be tomorrow night, but wait!
What do I see
Is she walking back to me?
Yeah, she's walking back to me!
Oh, Pretty Woman.
APPENDIX B TO OPINION OF THE COURT
"Pretty Woman" as Recorded by 2 Live Crew
Pretty woman walkin' down the street
Pretty woman girl you look so sweet
Pretty woman you bring me down to that knee
Pretty woman you make me wanna beg please
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 it ain't legit
[510 U.S. 569, 596] 'Cause you look like 'Cousin It'
Big hairy woman
Bald headed woman girl your hair won't grow
Bald headed woman you got a teeny weeny afro
Bald headed woman you know your hair could look nice
Bald headed woman first you got to roll it with rice
Bald headed woman here, let me get this hunk of biz for ya
Ya know what I'm saying you look better than rice a roni
Oh bald headed woman
Big hairy woman come on in
And don't forget your bald headed friend
Hey pretty woman let the boys
Two timin' woman girl you know you ain't right
Two timin' woman you's out with my boy last night
Two timin' woman that takes a load off my mind
Two timin' woman now I know the baby ain't mine
Oh, two timin' woman
Oh pretty woman