Judging Aesthetic Value: 2 Live Crew, Pretty Woman, and the Supreme Court

The U.S. Supreme Court recently held that a parody by the rap group 2 Live Crew of Ray Orbison's song "Oh, Pretty Woman" was "fair use" and thus did not infringe the copyright. Although the court insisted that it was not evaluating the quality of the parody, I argue that it does in fact make several aesthetic evaluations and sometimes even seems to praise the content of the parody. I first consider the stated reasons for the claimed refusal of the court to evaluate aesthetic quality. Second, I examine the evaluations which the court in fact does make, at least some of which are clearly aesthetic evaluations. I then argue that aesthetic value judgments are both necessary and possible for determinations of "fair use" for such works as the "Pretty Woman" parody.
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