Kennedy joins the remand while warning against a blanket parody defense
Anthony M. KennedyAssociate justice concurring in the unanimous decision
Kennedy joins the remand while warning against a blanket parody defense.
“As future courts apply our fair use analysis, they must take care to ensure that not just any commercial takeoff is rationalized post hoc as a parody.”
Original text
Where this statement fits
Campbell v. Acuff-Rose: 2 Live Crew claims fair use; the publisher alleges infringement
Acuff-Rose Music sued over 2 Live Crew's Pretty Woman, which used elements of Oh, Pretty Woman, written by Roy Orbison and William Dees. At the Supreme Court's November 9, 1993, argument, counsel disputed whether the parody's commercial use and borrowing from the original defeated fair use. On March 7, 1994, the Court unanimously reversed the Sixth Circuit and remanded. Justice David Souter's opinion rejected a presumption against commercial parody and required the statutory factors to be considered together. It did not finally decide every question about the musical borrowing or potential market substitution.
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Original text
About this source
The Court rejects categorical presumptions about commercial parody and remands unresolved fair-use questions. It does not create a blanket parody exemption.
Archived copy (opens in a new tab)Before the quotation
Kennedy doubts that the song is a legitimate parody and says the District Court may still find against fair use on remand.
After the quotation
He cautions against using parody as an after-the-fact justification for any commercial takeoff.
How this statement is classified
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Why this label?
Kennedy joins the reversal but doubts the song is a legitimate parody and says the treatment of the remaining factors leaves room for a finding against fair use.
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More from this case
Read the full caseAcuff-Rose's counsel argues 2 Live Crew's borrowing is not fair use
Acuff-Rose Music
“Now, in that circumstance, I believe that the -- that it is not a fair use.”Read statement
2 Live Crew's counsel argues that parody should be fair absent market displacement
2 Live Crew
“The rule that we suggest is that parody is a fair use unless it materially impairs the market for the original, and material impairment of the market for the original means supplant the original.”Read statement
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The Dispute Index. "Kennedy joins the remand while warning against a blanket parody defense". First published: 2026-10-31. Last updated: 2026-10-31. https://disputeindex.com/events/7479-kennedy-joins-the-remand-while-warning-against-a