Copyright, Free Speech, Rap, SCOTUS, Supreme Court

On Remand: Pretty Woman Walking Down First Street

How did a rap group wind up in front of the Supreme Court? It all started with a song.

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Ten years before Julia Roberts won an Oscar for her portrayal of super-paralegal Erin Brockovich, she gained fame for her role as Vivian, a prostitute not afraid to speak her mind, such as when she guesses (incorrectly) based on her wealthy john’s “sharp, useless look” that he is a lawyer.  Twenty-four years ago yesterday, “Pretty Woman” debuted in theaters and went on to gross an estimated $463 million. This week, On Remand looks back at one of the most successful romantic comedies of all time and the Roy Orbison song that inspired both the movie’s title and a group of controversial rappers from Florida who are no strangers to courtrooms….

Originally conceived as a dark tale about class and prostitution in Los Angeles, the story changed significantly once purchased by Disney. In the original script, titled “$3,000,” a reference to the sum Edward (Richard Gere) paid Vivian to spend a week with him, Vivian is a drug addict who ultimately returns to her life as a streetwalker. But with Mickey Mouse’s white gloves massaging the story, the movie became a romantic comedy. Instead of asking for drugs, Vivian hid dental floss from Edward, and Edward throwing Vivian out of his car at the end became the couple kissing into their happily ever after.

To fit the movie’s new theme, Disney executives also wanted a different title. To find the right note, the executives employed what in 1990 was already a common Hollywood practice: capitalizing on the goodwill of a popular song. They settled on the 1964 Roy Orbison classic “Oh, Pretty Woman,” featuring the song prominently in the movie’s trailer, and during the pivotal shopping spree/makeover scene in which Vivian transforms from tramp to lady. As the song fades, Vivian, now elegantly dressed, revisits the Rodeo Drive store whose clerks had refused to help her a day earlier when she appeared wearing a mini skirt and thigh-high boots. Waving her shopping bags, Vivian remarks, “You work on commission, right? Big mistake. Big. Huge.”

A big mistake is what the copyright owner of “Oh, Pretty Woman” thought Miami-based rap group 2 Live Crew had made when it parodied the song without permission in 1989.  Fronted by Luther Campbell, 2 Live Crew ignited controversy over their explicit lyrics while simultaneously earning gold or platinum status from the RIAA (Recording Industry Association of America).  Following the success of As Nasty As They Wanna Be, the group released a PG-rated version called As Clean As They Wanna Be, which included a parody of “Oh, Pretty Woman.”  The parody copied Orbison’s opening drum beat, bass riff, and the first six words, but also added new lyrics and sounds. (Lyrics for both versions are reprinted here, in the appendix.) Acuff-Rose Music, Inc., the copyright owner of Orbison’s song, had refused to license it to 2 Live Crew, and after the album sold 250,000 copies, sued Campbell for copyright infringement. The case went all the way to the Supreme Court to determine whether 2 Live Crew’s parody was a “fair use” or copyright infringement.

The Sixth Circuit, finding against 2 Live Crew, focused on the group’s use of the song as part of a for-profit endeavor and decided that commercial use and fair use could not coexist. The Supreme Court took a broader view, pointing out that if commercial use precluded fair use, then little would remain for the fair use doctrine to protect. After all, the Court said, quoting essayist Samuel Johnson, “’[n]o man but a blockhead ever wrote, except for money.’” The Court also cautioned against following the Sixth Circuit’s lead in evaluating the “quality” of the parody. If a parody is “reasonably perceived,” Justice Souter (a fan of classical music) wrote,

whether . . . [the] parody is in good taste or bad does not and should not matter to fair use. As Justice Homes 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]. . .

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The case was a victory for 2 Live Crew.  Although the Supreme Court remanded two issues, the parties settled without a further trial.

The 1994 Supreme Court case was not 2 Live Crew’s first courtroom experience. By that time, the group had survived several years of litigation over its vulgar lyrics. It began in 1990 when Florida attorney Jack Thompson, who according to the L.A. Times, sipped coffee from a Batman mug, and checked the time on his Batman watch, decided that Campbell was “The Joker . . . peddling obscenity to children” and he needed “to play Batman . . . to assist, to cajole and to sometimes embarrass government into doing its job.” Based on his earlier pro bono work representing sexual abuse victims, Thompson believed obscenity could lead to sexual abuse, and wished to eradicate both.

On New Year’s Day 1990, Thompson sent letters to Florida governor Bob Martinez and Dade County State Attorney Janet Reno asking them to investigate whether As Nasty As They Wanna Be qualified as obscenity. Next, he dispatched 68 more letters to sheriff’s departments. Thompson’s assault was successful. Martinez opened an investigation (2 Live Crew thanked him with a song on their next album called “F–k Martinez”), a number of record stores stopped selling the 2 Live Crew album, one record store owner was arrested and fined for continuing to sell Nasty, and two courts ruled that Nasty was obscene. The rappers were even arrested and tried on obscenity charges after performing at an “over-21” show in Broward County; the jury acquitted the group after two hours of deliberation. 2 Live Crew chronicled the events on their next album, Banned in the U.S.A., whose title track borrows heavily (with permission) from Bruce Springsteen’s “Born in the U.S.A.”

In the midst of others’ attacks, 2 Live Crew launched one of its own: it filed a declaratory judgment action against Broward County sheriff Nick Navarro, seeking a ruling from the federal court that Nasty was not obscene. 2 Live Crew lost at the trial court, but the Eleventh Circuit reversed. Because 2 Live Crew and its music had spawned a national debate on the breadth of First Amendment rights, the Eleventh Circuit case attracted some famous amici, including the ACLU and RIAA. As previously noted by ATL, Elena Kagan, then an attorney with Williams & Connolly, signed the RIAA’s amicus brief, which in its most famous passage urged that “Nasty, however nasty” did not satisfy the legal test for obscenity. The Eleventh Circuit agreed, ruling that the sheriff had not met his burden. 2 Live Crew album sales then continued unabated — though Banned in the U.S.A. had the distinction of being the first album to bear the RIAA-standard Parental Advisory warning label.

After years in the spotlight, 2 Live Crew faded from view. Luke Campbell, meanwhile, has remained busy with some varied ventures: a solo music career, voicing a DJ in “Grand Theft Auto,” producing adult entertainment, and running for Miami mayor (he came in fourth). All these years later, perhaps the world is ready to revisit the 1990s. 2 Live Crew is performing again, and recently The New York Post reported that “Pretty Woman” — the movie — may be headed to Broadway as a musical. No word on whether the play will include Edward’s variation on the classic lawyer joke: “You and I are such similar creatures Vivian. We both screw people for money.”

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Samantha Beckett (not her real name) is an attorney with more than ten years of experience working in Biglaw. When not traveling back in time, she is most likely billing it. Her writing has been featured in state and federal courts across the nation and in the inboxes of countless clients, colleagues, and NSA analysts. She can be reached at OnRemand@gmail.com.

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