Sunday, November 7, 2010

Musicians, Know Your Rights: Copyright Law - Is Your Sample Protected Under Fair Use?

Fair Use is “designed to balance the rights of the copyright holder with the public's interest in dissemination of information affecting areas of universal concern, such as art, science, and industry."(137) It is the only defense for using someone's copyright/trademark/right of publicity without their consent. Although individuals retain property rights to their work, the courts have decided that preventing parodies which criticize other works would stifle the objective of copyright laws to “stimulate creativity and authorship.”

The commercial purpose of using copyrighted material can compromise a fair use defense unless the secondary use “serves public interest by stimulating creativity as copyright law intended.” Copyright laws are meant to prevent someone from selling someone else's work or idea. Commercial productions and commercial campaigns can suffer from the dilution of their intellectual property through copying and makes the court less likely to acknowledge parody rights. The secondary use must do more “than paraphrase or repackage the original, by adding value to or 'transforming' the original copyrighted work.”

In order for a parody to qualify as fair use it “must copy enough to conjure up the original” (142). The parody's “transformative” quality lies in using the original as the target of the work's criticism. The nature of the copyrighted work is irrelevant for parody since it must be in the public consciousness to “conjure up.” The quality and quantity of portion used of a copyrighted work is weighed against the necessity for the work to reference the original work to criticize it. A parody usually serves a different function in a market than the original work it ridicules and therefore it does not have an impact on the market value of the original. Because parodies by necessity must use intellectual ideas to criticize or comment on ideas, it is important to know the distinction between using someone's work to shed new light on a public discourse and stealing work for the sake of expediency.
The Supreme Court says...
Notwithstanding the need for monopoly protection of intellectual creators to stimulate creativity and authorship, excessively broad protection would stifle, rather than advance, the objective. First, all intellectual creative activity is in part derivative. Few, if any thoughts or inventions today are wholly original. Each advance stands on building blocks fashioned by prior thinkers. Second, important areas of intellectual activity are explicitly referential. Philosophy, criticism, history, and even the natural sciences require continuous re-examination of yesterday's theses.
Parody and Fair Use
Material that mimics or makes fun of a copyrighted work may be protected by the fair use defense. The decision often turns on the third factor – the amount and substantiality copied. 

To be effective, a parody must copy enough to conjure up the original. Even more extensive use might be ruled fair, provided that the parody builds on the original, using it as a known element of modern culture and contributing something new for humorous effect or commentary.

The nature of the work is essential “in separating the fair use sheep from the infringing goats in a parody case, since parodies almost invariably copy publicly known, expressive works.”

This has turned attention “to the pervasiveness of a parodist's justification for the particular copying done,” recognizing “that the extent of permissible copying varies with the purpose and character of the use.”

Parody is 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. What makes for this recognition is quotation of the original's most distinctive or memorable, 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.

Souter wrote that while 2 Live Crew's copying the characteristic opening bass riff and first line of Orbison's lyrics may have gone to the “heart” of the original, thereafter the rap group's lyrics and music departed markedly from the original.

Considering the fourth fair use factor the effect of the use upon the potential market for or value of the copyrighted work, the Supreme Court noted that a parody is unlikely to act as a substitute for the original because the parody and the original usually serve different market functions. Here a rap version likely appealed to a different audience than Orbison's song.

Kennedy says “the parody must target the original, and not just its general style, the genre of art to which it belongs, or society as a whole.”

Points of Law to Remember for Fair Use
Purpose and character of use
-commercial or non commercial?
-secondary use serves public interest by stimulating creativity as copyright law intended,
-secondary use does more than paraphrase or repackage the original, by adding value to or “transforming” the original copyrighted work
 Nature of Copyrighted work
-Out of print work?
-factual or fictional?
-Copying unpublished?
 Quantity and quality of portion used
-Depends on the “transformative” nature of the use
-small passages could kill the essence of a book
-full use could be acceptable if used for criticism
Effect on the market value of original or potential derivative versions
-must not take away from copyright holding creator to profit from covers or remixes