Sampling In Cultural Context… in Court: “You never thought that hip-hop would take it this far”

by Alvin Benjamin Carter III

In the Estate of Smith v. Graham, the Second Circuit Court of Appeals affirmed the United States District Court for the Southern District of New York’s grant of summary judgment for Defendants Aubrey Drake Graham (a.k.a. Drake), Cash Money Records, and various record label imprints and publishing companies in its de novo review of the lower court’s decision which found the use of Plaintiff’s “Jimmy Smith Rap” in Defendant’s “Pound Cake” to be fair use. No. 19-28, 2020 WL 522013, at *2 (2d Cir. Feb. 3, 2020) (Summary Order). While summary orders are not precedential, this is an encouraging decision for Hiphop artists who utilize sampling in their music because the analysis of the first of the four fair use factors outlined in the Copyright Act of 1976 (the “Copyright Act”) highlights the Second Circuit’s ability to evaluate fair use in context of Hiphop’s long standing sampling tradition. Id.

Section 107 of the Copyright Act provides four factors that are analyzed individually and weighted together when determining if the use of copyrighted work is considered a fair use. TCA Television Corp. v. McCollum, 839 F.3d 168, 178-179 (2d Cir. 2016). The four factors are:

The Second Circuit’s fair use analysis in Estate of Smith v. Graham is fairly concise, but the treatment of the first factor indicates an understanding of how and why artists and producers often sample a particular work. In reviewing the first factor, the court performed what appears to be a close reading of the lyrics of each song, which ultimately convinced the court that Drake’s usage was transformative. 

In making this determination, the court noted that “The message of the ‘Jimmy Smith Rap’ is one about the supremacy of jazz to the derogation of other types of music, which—unlike jazz—will not last. On the other hand, ‘Pound Cake’ sends a counter message—that it is not jazz music that reigns supreme, but rather all ‘real music,’ regardless of genre.” 2020 WL 522013 (C.A.2 (N.Y.)), 1. Then, the court further explains that only 35 seconds of “Jimmy Smith Rap” is used in “Pound Cake” which is a seven minute song featuring Drake and Jay-Z rapping “about their greatness and authenticity of their work” in a manner that “criticizes the jazz-elitism that the ‘Jimmy Smith Rap’ espouses.” In this instance the lyrics to “Pound Cake” told the story the artists wanted to tell, and it also told the court why they were telling the story in a particular manner– through transformative sampling. The Second Circuit’s lyrical analysis and understanding is indicative of the ability, and a degree of willingness, to appreciate the transformative value in Hiphop related works for reasons that appear to be in line with the artist’s intent.

This is an important development because sampling is the sonic foundation of Hiphop music, and the intentionality behind sampling is what often contextualizes the transformative fair use.

The Estate of Smith is not alone in caselaw that is helpful for understanding sampling culture and the law. VMG Salsoul, L.L.C. v. Ciccone, from the Ninth Circuit Court of Appeals, decide a case where the plaintiff claimed that the producer of the song “Vogue,” copied a 0.23-second segment of horns from an earlier song, known as “Love Break.” The court acknowledged the applicability of the de minimis exception with respect to sound recordings and determined that the horn sample in Madonna’s song was de minimis. 

These cases prove hopeful for Hiphop culture and sample based music even though there still is not a clear path forward for artists and producers who do not clear their samples. 824 F.3d 871 (9th Cir. 2016). (The Sixth Circuit held to the the opposite in Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2005).

Still, the fact that courts are reading into the conceptual layers of works and parsing out the various textures of fair use in a way that lets artists be heard is far from de minimis.

The views expressed herein are solely the views of the author and do not represent the views of Brown Rudnick LLP, those parties represented by the author, or those parties represented by Brown Rudnick LLP. Specific legal advice depends on the facts of each situation and may vary from situation to situation. Information contained in this article is not intended to constitute legal advice by the author or the lawyers at Brown Rudnick LLP, and it does not establish a lawyer-client relationship.  

Miller Beer-Cam & Fair Use

by Rebekah Modrak

As an artist challenging consumer culture through culture jamming methods, I’ve intervened into the world of an artisanal axe company, spending years learning its language, painting and branding dozens of helves, and mimicking their design to produce a company in its image (in a parasitic, parallel universe: my recreation is an artisanal plunger company). I’ve apprenticed in swagger and male bravado to recreate a lecture by the president of the Shinola company, and tried to help the company out by making their implicit messaging about being a white savior more explicit. I see these actions as a kind of “brand catharsis,” allowing brands to be honest versions of themselves.

It wasn’t until Best Made Co. — the mastermind behind the manly American Felling Axe —, expressed through its cease-and-desist a lack of appreciation for our therapeutic play that I started to think about fair use. Suddenly, the delight of traipsing through brand messaging threatened to turn weighty and stagnant. Fortunately, I encountered Professors Patricia Aufderheide and Peter Jaszi and their remarkable Fair Use best practices, Harvard’s Fair Use Week, and Kyle K. Courtney’s Copyright First Responders, celebrators and educators empowering the creation of new culture, and the value of mucking about in the mud.

The work that I recently co-created with Kenzie King — the Miller Beer-Cam — entered my consciousness through a declaration: “I like beer.” I watched Christine Blasey Ford attempt to communicate accuracy with every word, gracious and accommodating even as she told the committee about the violence enacted against her. Then I watched Brett Kavanaugh, belligerent and aggressive. The taunts of “I like beer” that accompanied his swearing-in ceremony were without any trace of empathy. They were barbaric victories of unchecked male power with beer as a symbol and weapon against women. Kenzie and I asked ourselves: If conscience and the judicial system are not enough, if police cars and bodies need to be outfitted with cameras to keep power in check, could we do the same with the beer can? If beer is to be weaponized, could it become a tool for the protection of women? We imagined a world in which MillerCoors reinterpreted their tagline “Miller Makes it Right” in the context of #MeToo.

The resulting Miller Beer-Cam is published as a press release. Our co-opted MillerCoors announces a recommitment to their tagline “Miller Makes It Right” by installing a camera in every can of beer to “hold men accountable.” Footage is stored and shared to provide legal support. We created the press release based on language from Gillette’s campaign “The Best A Man Can Get,” rewriting a statement that’s thin on substance and action to propose a campaign with real consequences and protections.

The nature of this work and the fair use questions are different than my prior works, which took the form of recreations proposing new versions of brands, and assuming new names and symbols. The fair use “gray areas” there concerned quantity. Did I really need to recreate Best Made (the axe company)’s website, their entire line of axes (as plungers), their Facebook page and hundreds of social media images showing men with plungers instead of axes? Couldn’t I have just made the point by recreating Best Made’s brand video? With the Miller Beer-Cam, scale (or amount of the portion used) isn’t a fair use factor; rather, this was the first time I’ve adopted a company’s actual name, tagline, and logo.

Fortunately, in this new terrain, I could turn to an experienced and expert guide to navigate the landscape. Professor Jaszi offered this compass: “I see no copyright issues of moment in your adapting Gillette’s press release, and my read is that Miller/Coors has no viable trademark claims: You’re not selling a product or suggesting an endorsement(!), and as parody (with First Amendment protection) it wouldn’t be considered a use ‘in commerce’ under the terms of the federal anti-dilution standard. And unlike regular people (at least so far) corporations don’t get to sue for hurt feelings.” Fair use gives permission to play in the corporate sandbox.

Though I’m an artist who recreates and riffs on brand messaging, I don’t think about my work in terms of appropriation or recasting subjects by removing them from their original context. Rather, I see my practice as being site-specific, and understand the landscape of marketing as a kind of Oz, a portal I intentionally cross into because this land, its characters, and its values, perplex me. This seems an important distinction to me — that sampling isn’t always based on the act of pulling images or parts from one visual scape into some sort of new canvas. Instead, these actions can be performative, tangible, and immersive.  

When Relying on Fair Use Isn't Fair: Creating Around the Copyright Act

by Alvin Benjamin Carter III

Fair Use has been a theme in my life ever since I started producing music as a freshman in college. I did not realize this until I took my first Copyright class with Professor David Herlihy as an undergraduate in Northeastern University’s Music Industry program. Now, I am a law student and a DJ/Producer that has had the privilege of working on the inaugural installment of the Classic Crates project at the Hiphop Archive and Research Institute.

And, fair use still continues to crowd my consciousness in law school. The difference between now and then is that I am generally analyzing other’s use of protected works whereas I used to be worried about my liability when sampling music.

I recently published an article about hiphop and the intersection of copyright law, race, and marginalization in the creation of music; specifically focusing on sampling. So, I will not go into that at length here, but I can honestly say that I have personally felt the weight of copyright law because it has stifled my creativity.

Early on, I found sampling to be one of my favorite rituals in creating music. At that time most of my favorite tracks were heavily sampled songs produced from 1988 – 1997. I was, and still am, a fan of Pete Rock, DJ Premier, RZA, Kanye West, Swizz Beatz, Timbaland, and a number of heavy hitters in the production game. I wanted to dig in the crates like they did and try my hand at sampling, and I did. But, as a young college student with delusions of stardom, I was afraid of being sued. This might have been an unrealistic scenario since Soundcloud and Youtube did not exist, so the chances of me producing an instant hit were minimal. But I was 19 running my own production company. The threat was real in my eyes, so I started to alter my creative process and work on sound design so I could tweak or create sounds. I eventually ended up with a library of tweaked sounds based on classic drum kits like the 808. I started composing with virtual instruments and electric guitar rather than finding melodies in my music collection.

My music career his diverged into the law, but this story of how copyright law changed my creation process is not uncommon. I asked The Architype (an artist-producer, studio owner, and one half of the super duo STL GLD) about how the concept of fair use has affected his craft.

The Arcitype’s approach is a prime example of how even when a producer is not sampling, the craft of sampling is still instructive on other aspects of creation. It validates how important samples are to hiphop music, and it is a classic case of taking a restriction and making it an exercise. The Arcitype’s exercise has made him a game-changing producer.

As a law student, I do not make music as often as I did prior. I started a beat making challenge mainly to keep me in the game and to provide an outlet for others. My music is low risk in terms of stirring up any litigation, but I found that I am more interested in fair use now that I have access to resources like legal research websites and courses. I spend most of my time reading about the law, writing about the law, and thinking about how it applies to the music and art I consume.

Over time, my thought process has shifted from what I can or cannot do when creating music to why is there a restriction on what I want to do? The two questions are very different, but the answer to each informs the other. Case law has not provided any bright line rules, and the exceptions in Copyright Act do not reach sampling. I ask, and urge you to ask as well, “Would this law be updated if it did not pertain to the hiphop community?” Fair use is available, but a defense that is unique to each use is not enough for the hiphop community to rest its head on.

Alvin Benjamin Carter III is a 3L at Northeastern University School of Law (NUSL) and former 1st Circuit Executive Lt. Governor for the ABA Law Student Division. He has been the joint teaching and research assistant for NUSL’s Community Business Clinic, and he currently is a research assistant at the Center for Law, Innovation, and Creativity.

Happy #FairUseWeek! This year we are celebrating the 5th Anniversary of Fair Use Week with another Fair Use Comic, launching this Friday! For those that are interested in our past Fair use Comics, here is a compilation of the previous comics! http://www.jrocheworkshop.com/3018515-fair-use-week-comics-x3 Enjoy! [And find out more about our Fair Use Week 5th Anniversdary celentrations at http://bit.ly/FUW2018]

Could There Be Fair Use for Music Sampling? Some Thoughts on Fair Use Week

by Kathleen DeLaurenti

Can you imagine writing a lyrical review or critical essay about Beyoncé’s music without quoting her words or lyrics? Probably not. You would also probably not think you had to pay her for using those quotes, either.

However, if you’re a pop music diva, or anyone else, who wants to quote Madonna or Beyoncé in your musical work then licensing that quote is currently considered “a must” (we’ll explore why this is the case below). While licensing samples may seem like common sense, musicians seeking licenses face many obstacles from figuring out how to get a sample cleared, simply knowing how much it might cost, and, lastly, if they can actually afford it.

Beyoncé Fan Art (Jon Phillips, CC BY 2.0)

When you start to think of quoting music in songs the same way we think of quoting words in writing, it then begs the question, “What makes music different?”

Today, if you want to sample a song, here’s what you need to do to succeed:

While there is no set standard for fees, in their book Creative License, McLeod and DiCola published a chart of what sampling costs can be for artists. While costs up to $500 to use a smalls sample by a “low-profile artist,” costs can go up to $100,000 for a license of a “superstar” musician’s work, and potentially require as much as 100% assignment of the copyright. And don’t forget – this is music - so musicians must clear both the sound recording rights for recordings made after 1972 and the musical composition rights for any work protected by copyright.

Listing sampled artists as songwriters has led to curious practices. For example, the late Alan Lomax, a pioneering ethnomusicologist, received writing credits alongside Jay-Z, Nicki Minaj, and, most recently, Beyoncé (on “Freedom” from Lemonade) for use of his recordings of Reverend R.C. Crenshaw at the Greater Harvest M.B. Church congregation of Memphis Tennessee and Stewball sung by Benny Will Richardson and unidentified prisoners at the Parchman Farm Penitentiary in Mississippi.

In fact, Lemonade features so many songwriting and producing credits that it ignited a controversy over Beyoncé’s contributions to the work.

It’s puzzling to see such an acclaimed work criticized for its number of collaborations without exploring what those collaborations mean. Continuing our examination of Beyonce’s “Freedom,” three of the listed songwriters are deceased (though their estates will still receive royalties). An additional credit is for an approximately 26 second sample from the Latino rock band Kaleidoscope. From this one basic example, you can see the complicated system for ensuring accurate royalties are distributed to any fraction of a work that is sampled.

Sample [CC0 Public Domain]  

Figuring out royalty distribution is one part of this mess, but with song writing attributions inconsistently being given out to ameliorate difficulties in royalty distributions, as a librarian, I try not to think too hard about the mess this system will make for future music historians!

We take fair use for granted when we’re quoting people’s words in essays and papers, but in music, fair use doesn’t even seem to be on the table anymore. Fair use was defined in the Copyright Act of 1976, and outlined an explanatory preamble followed by the famous 4 factor balancing test. The Codes of Best Practices for Fair Use have endeavored to help many communities understand the statue and use fair use where it aligns with existing community norms, and raise awareness about what fair use is, and how it benefits creators. These codes now exist for poetry, documentary filmmaking, visual arts, libraries, archives, teaching, and online video. Each of these codes helps creators understand when and how they might use copyrighted works in their own creative process. The visual arts code even promotes explicit how-to’s! So, how did music get #fairuseleftbehind?

One big obstacle to developing norms around fair use for music is that, as a community, music is deeply divided. While Blondie was sampling Rapper’s Delight, experimental musicians like John Oswald, Christian Marclay, and Negativland saw the potential for harnessing technology to make and use sound recordings in their own creative works the same way a collage artist approaches a piece of visual art.

In 1985, experimental musician and father of Plunderphonics, John Oswald, posited that technology finally made it possible for composers to realize a long history of borrowing and reuse by “blurring the lines between sound producers and sound reproducers.” Early on, musicians creating rap and hip hop seemed to agree, but lawsuits over samples began changing both the legal landscape around sampling and music culture surrounding the decisions whether licenses should be required.

As sample-based hip-hop and rap music started climbing the charts in the 80s and 90s, a host of lawsuits about sampling soon followed. The barrage of lawsuits and resulting competing legal decisions, exemplified with the words “thou shall not steal” in the decision for Grand Upright Music v. Warner Brothers Records, speedily arrested the use of unlicensed samples. A more recent ruling in 2006 added a nail in the coffin for sampling fair use by ruling that even a two-second sample of a guitar chord could be considered copyright infringement. That ruling would likely still stand if Salsoul Orchestra hadn’t sued Madonna for a .23-second horn hit  in Vogue and lost in 2016. While these decisions might help bring some clarity around how little music you can use without an infringement, it’s a long way from having decisions that consider, analyze, and employ fair use.

An AKAI MPC2000 Digital Sampler [Public Domain]

These competing district court rulings don’t even touch on fair use, even though they discuss in detail how many seconds of a music work might be “too little” to constitute infringement. Using that language, it certainly sounds like they should be addressing fair use. Nonetheless, for a young musician trying to break out, this means there are no consistent fair use rulings on which to rely to make new, creative musical works.

Even though the fair use doctrine has been referred to as a “guarantee” that there is “breathing space within the confines of copyright,” in the music field, sampling artists are at the mercy of music publishers and record labels when requesting licenses for samples. For example, Mocean, an electronica artist, outlined his struggles with licensing in an interview in 1999, when he claimed:

The license system that has developed mirrors the old economies of the music industry, rather than the creative goals of both copyright and fair use. Because the current system has developed in response to economic pressure from large music business companies, and because sampling will become an increasingly important aspect of new music, the sample licensing system could benefit from evaluation and possible change from the either the judiciary or a legislature.

Worst still, is when a music rightsholder simply refuses to allow use of a sample, even if money and licensing fees are offered. Outside the world of music, if a licensing deal is non-negotiable, there is still the right to harness fair use. However, in the music industry, there is generally no fair use option because of the court decisions and potential liability.

What if the sample was small enough to be de minimis? What if the sampling constitutes a fair use of the original, for reasons outside the 4 factors? The fair use statute has been interpreted by the Supreme Court to have legitimate reasons other than the 4 factors that are stated, and this would include allowing uses that are necessary to promote the creative arts. In Stewart v. Abend, the Supreme Court wrote, “The fair use doctrine thus permits 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.” 

A few artists like GirlTalk (who cite Oswald as inspiration) and Danger Mouse rely heavily on transformative fair use arguments. While their work hasn’t escaped controversy, they have managed to avoid lawsuits. Some posit that the threat of losing a lawsuit and setting precedent to make it easier to assert fair uses in music keep labels from pursuing such perceived “threats” through to a legal decision.

Without any legal certainty, musicians may have to wait until new economic models to support their work beyond album sales and licensing fees become more prevalent. As more musicians begin to explore Creative Commons licenses for releasing their own work, and pursuing project-based funding through services like Kickstarter and Patreon, artists are developing new models for funding their work. These new models could provide revenue up-front, which could lead to less reliance on post-release royalty revenues. Musicians who are economically secure can then feel more secure about their colleague’s fair use of their own music.

Mark Hosler of Negativland [Stefan Müller CC BY-NC-ND 2.0]

While the bold uses of artists who make sampling a core component of their work - like GirlTalk, Danger Mouse, and Negativland - continue to keep conversations about fair use and music current, licensing approaches to music sampling remain the domain of those that can afford them, and that could be suppressing a host of young and experimental artists from creating new, and cutting edge music. Maybe it’s time for a change?

[For the most comprehensive overview of the state of sampling in music today, I highly recommend “Creative License” by Kembrew McLeod and Peter DiCola on Duke University Press]

Kathleen DeLaurenti is the Arts Librarian at William and Mary.

Fair Use, Music, and MOOCs

by Erica Charis

In 2011, when MOOCs first started to catch on in the United States, the course offerings were tipped heavily toward the “hard” sciences. Coursera's cofounder, Mr. Ng admitted to the Wall Street Journal in 2013 that, "[t]here was a real question of whether this would work for humanities and social science." (Geoffrey A. Fowler, “An Early Report Card on Massive Open Online Courses,” Wall Street Journal Online, October 8, 2013, available at https://www.wsj.com/articles/sb10001424052702303759604579093400834738972)

One of the key questions in many disciplines revolved around third-party owned materials. For decades, numerous courses leveraged fair use in the classroom to teach using copyrighted material, beyond what was available in the public domain. MOOC instructors, faced with a classroom that seemed to extend fair use's educational provisions to the breaking point, raised serious questions about whether their courses could even be taught effectively with all the copyrighted materials stripped from them.

If there were questions about humanities and social science courses, there were even more significant doubts about music courses. When Berklee College of Music released its first MOOC in 2013, there was little-to-no precedent for teaching practical music skills online, much less in an open, high-enrollment environment. Additionally Berklee had built its reputation specifically on popular music instruction. Yet, four years later, Berklee has 31 courses on the Coursera, edX, and Kadenze platforms in both English and Spanish, with five more English courses in production and six Portuguese courses in development.

With popular media being high on the list of materials targeted for take downs, cease and desist letters, or potential legal action, how has Berklee found its way around those thorny legal implications? In most cases, the faculty did what they do best: they got creative.

A few stellar examples are:

Music Business and Music Therapy courses leverage nearly entirely open access content for their required readings.

There is in fact only one case where the unavoidable use of third-party content resulted in a paid fee for permissions. Sometimes, however, a class needs to assert fair use to make its pedagogical point. For example, Gary Burton's students are given access to a jazz standard lead sheet to give them a piece from the canonical repertoire to work with for their final assignment. A songwriting course currently in development may use excerpts from a Radiohead tune, though the examples will be played by the instructor and not directly from a recording.

On a broader scale, these strategies fit well within the context of solutions observed and actively promoted at other institutions. A working group of edX-affiliated librarians recently released a best practices document on intellectual property materials in MOOCs, consolidating a wide variety of approaches into a outline of “different methods for optimizing use of third party materials, while still maintaining low-to-moderate [legal] risk.”  When no public domain materials are sufficient, materials owned by the institution, or open access and open licensed materials are highly recommended.

Discovering or creating such materials can be labor intensive, but as the popularity of Berklee's MOOCs seems to indicate, the materials can be both effective in instruction and attractive to prospective students.

Erica Charis is the Creative Writing Instructor for Berklee Online and former Assistant Director of Assessment of Programs and Planning for Learning Resources at the Berklee College of Music's Stan Getz Library

What a Difference a Code Makes

By Patricia Aufderheide

Fair use—scary grey area, or friend of free expression? A new code of best practices in fair use for the visual arts makes clear that knowing your field’s standards makes all the difference.

In a world of no guarantees, knowing what’s conventional is a risk tip-sheet. That’s why having best practices codes among communities of creative practice is so helpful. The latest creative community to develop consensus around how to employ fair use is visual art professionals—fine artists, museum personnel, art scholars, art teachers, and editors of art publications.

When the College Art Association, the largest membership organization representing the visual arts community, released the Code in February 2015, visual arts professionals were locked into a permissions culture that delayed their work, raised costs, and most importantly, stifled imagination.

Did the Code make a difference?

Bottom line: Yes. Yes. Yes.

Survey: Thumbs up.

In a survey that about 2,500 CAA members took in the last three months, more than two-thirds had heard of the the Code of Best Practices in Fair Use for the Visual Arts. A third of those who knew about it had told someone else about it, usually several kinds of others—students, colleagues, superiors. That act of sharing was also an act of trust in the value of the Code.

Fair use is a valuable tool to visual arts professionals, because of the nature of their work. The majority of respondents employ third-party copyrighted material regularly, and 4/5 of those have employed fair use to do it.

The Code appears to have expanded the pool of people who employ fair use significantly, in only a few months. Eleven percent of survey respondents who had ever employed fair use had used it only after the Code was created.

Those respondents who knew about the Code and used it to employ fair use were also much more likely to have made their first fair use decision after the Code was created than others.  

Contracts: Please read.

Publishers are also suddenly smiling on fair use, in a field where authors traditionally pay hundreds, thousands or even tens of thousands of dollars out of their own pockets to cover costs of image permissions for their scholarly articles or books. The College Art Association itself overturned its copyright policies for authors. CAA used to demand that authors get permissions for all images and indemnify the press. Now CAA’s contract asks authors to read the Code and apply it to their uses. Indemnification is no longer required.

Yale University Press, inspired by the Code, has drawn upon it to write its own fair-use guidelines for scholarly publishing. Furthermore, the Press’ decision involved other parts of Yale University, including museums, which are now also considering expanding their access to fair use.  

The Menil Collection in Houston, as a result of using the Code, has expanded access to fair use for its use of images its press office work, as well as use of images more generally. Benefits, according to editor Joseph Newland, include speeding workflow and helping the press office respond in a timely way.

At the Detroit Institute of Arts (DIA), Publishing Director Susan Higman Larsen had previously bowed to the wishes of an artist’s estate. But now that she has read the Code and shared it with colleagues, the DIA has decided to publish a work using images from the same estate under fair use.

Artist: Yes I Can.

The Code’s utility also extends to individuals. Artist Rebekah Modrak, who teaches at the University of Michigan, spoofed the overexemplifying hipster-Brooklyn site Best Made Co. with an ironic (and hilarious) imaginary company Re Made Co. (Watch the side-by-side video of Best Made’s ad for an artisanal axe and Re Made’s version promoting a plunger.) After getting a cease-and-desist letter from Best Made, she turned for advice to CAA, because she had read the Code. CAA steered her to good legal advice at University of Michigan. Her university’s lawyers welcomed the opportunity to support her fair uses.

She then recounted her experience for a Routledge art scholarly publication; she used the Code to convince the Routledge editors that fair use would apply to reproduction of images of her own art.

Comfort in consensus.

The rapid deployment of the Code of Best Practices in Fair Use for the Visual Arts in the field was a surprise to those of us who facilitated its creation. During the process of creating it, we heard from many who told us of the highly personal relationships in the art world that would trump any legal right; about the fierce opposition they would face from estates and brokers; and about fears that artists would be outraged. But since the Code appeared, we have seen no outrage from artists, estates or brokers. We have seen institutions make principled decisions to lower marketplace friction and meet mission by employing fair use. Most of all, we have seen people who respect themselves and the good work they do decide to use the legal rights available to them, without repercussion. We are eager to see what happens next year.

Patricia Aufderheide is University Professor in the School of Communication at American University and with Peter Jaszi, Professor in American University’s Washington College of Law, has facilitated ten codes of best practices in fair use with creative communities.

Rebekah Modrak, Associate Professor, School of Art & Design at the University of Michigan, recounts the challenges she encountered after creating a work of art that incorporated 3rd party copyrighted material. In 2013, she founded Re Made Co., a “company” that parodies the urban woodsman aesthetic of Best Made Co, which markets designer axes through the rhetoric of authenticity, the appropriation of working-class identities, and the revitalization of traditional male roles.

After receiving a cease-and-desist letter, she turned for advice to College Art Association (CAA), which connected her with legal advice about fair use at the University of Michigan.

Prof. Modrak then published an account of her experience for a Routledge publication, Consumption Markets & Culture. The editors had concerns about the use of 3rd party materials – they thought she needed permission. Instead, she relied on CAA’s Code of Best Practices in Fair Use for the Visual Arts to persuade them that fair use would apply.

Prof. Modrak has a B.F.A. in photography and painting from Alfred University and an M.F.A. in photography and sculpture from Syracuse University. She is interested in encounters between art, commerce, photography, and identity. And, obviously, is a stellar fair use advocate!

Expert Fair Dealing

by Bobby Glushko, Head, Scholarly Communications and Copyright, University of Toronto Libraries

Friday February 22, 2016 was a great day for fair dealing in Canada. 

Last Friday, the Copyright Board of Canada, an administrative body that sets royalty rates for collective licenses, issued a decision on the rate for copying undertaken in K-12 educational settings.  Access Copyright, a collective licensing organization that represents Canadian writers and publishers, had originally proposed a tariff of $15 per student for the initial phase of the tariff.  The Board, after hearing all of the evidence, certified a tariff of $2.46 for the initial phase, dropping to $2.41 after three years.  This was not only a substantial reduction from Access’ request; it was also half of the previous tariff certified by the Board. 

This ruling, came as a welcome confirmation that the Canadian copyright balance has become increasingly user positive.  In recent months Access Copyright has suffered significant defeats as the Board and the courts have become increasingly comfortable with fair dealing and the vital role it plays in Canadian society.  The role of the collectives in facilitating the use of copyrighted works has fallen in importance as a more robust understanding of fair dealing has come to be understood.

Fair dealing has not always been so strong in Canada.  For many years fair dealing had been seen as an affirmative defense to copyright infringement, as a “loophole” that could enable someone to get away with bad behavior.  However, in the 2004 landmark Supreme Court decision CCH Canadian Ltd. v. Law Society of Upper Canada, the Court demolished that theory, stating that

This ruling, the basis of a newly awakened fair dealing, was resoundingly strengthened by the Court in 2012.  2012 was a big year for Canadian Copyright, as noted academic Michael Geist wrote, the Court “shook the foundations of Canadian copyright law” by issuing five decisions on copyright on one day; these decisions have been called the “Copyright Pentalogy” and showed the Court’s commitment to robust fair dealing.  On the legislative side, 2012 also saw the passage of Bill C-11, the Copyright Modernization Act.  Of particular importance in the Act was the inclusion of “education” as a class of activity that can be seen as fair dealing.  This change, alongside the Pentalogy, led many Canadian colleges and universities to adopt fair dealing guidelines that treated fair dealing like a user’s right.

However, these guidelines were subject to some controversy; fearing an erosion of their influence, Access Copyright sued York University for copyright infringement, stating that their guidelines were “authorizing and encouraging copying that is not supported by the law.”  In Quebec, a similar suit was brought by Copibec, the Quebec author’s collective, against Université Laval as well.  However, with the Board’s latest tariff decision relying so heavily on fair dealing, it seems that a strong culture of fair dealing is here to stay.  As Michael Geist recently stated “the Board Minced no words in explaining the reduction:

So where does this leave us?  If you believe, as the Court and Board appear to, that fair dealing is a user right that is vital to the Canadian copyright ecosystem, then you have every right to celebrate this recent decision.  As we continue to celebrate Fair Use/Fair Dealing week we should keep in mind the history and the struggle to define and protect users’ rights and be grateful that we live in a time where the copyright balance is so deftly calibrated.

DEVELOPING BEST PRACTICES IN FAIR USE FOR THE VISUAL ARTS

by College Art Association

The process of creating a Code of Best Practices in Fair Use for the Visual Arts, which the we released at our annual conference in February, has already changed our community for the better, and we have barely begun to use it.

Creating this Code has been a two year process, conducted in conjunction with American University professors Patricia Aufderheide and Peter Jaszi. When it began, we knew our field was beset by problems put in motion by one simple axiom: when in doubt, ask permission. 

Scholars were frustrated; it sometimes took years to get permissions for illustrations for a monograph--or even a journal article. Graduate students had taken to selecting thesis topics based on ease of permissions. Editors were frustrated by balky processes and the occasional blank space where permissions did not work out. Museum professionals had stories upon stories of exhibitions gone awry or delayed interminably for permissions. Artists were hesitating to experiment with digital artforms or make recombinant art. They sometimes told their students to create anything they liked...until they wanted to exhibit it. 

Harvard Art Historian, Suzanne Preston Blier, who is Vice President for Publications at the College Art Association and a member of the Committee who helped to shape the code points out that “This is a potential game changer. Image permission questions have shaped publishing decisions for much of my career, adding long hours of difficult and frustrating administration work as well as months and sometimes years of wait to projects.” She adds: “Costs of publishing images, which is critical in this field, can be huge and there is a well-entrenched (if erroneous) lore among art scholars about how the core problem might be addressed.”

These familiar stories were only known to one's own corner of the field. It wasn't until we did the research, funded by the Samuel H. Kress and Andrew W. Mellon Foundations, to show the scope and depth of the problem overall that we could see the consequences. We were keeping ourselves from doing the work we love in the way we know it should be done, because we were not sure when legally we should get permission, when we did not have to, and what our risk really was. 

That awareness helped drive us forward in the process of deliberations that resulted, a year later, in our Code. We focused on five common practices: writing about art, teaching about art, making art, museum practices, and digitizing collections. 

“The brilliance of this Fair Use Best Practices Code,” says Blier, “is not only that it now exists, but also that it is written in a very accessible way and encourages each of us address individual cases through a series of clearly written questions. In short this is something each of us can do on our own, but also knowing that the College Art Association is behind this and can offer potential help if stumbling blocks emerge along the way. “

We are aware that the Code itself doesn't change anything. It is a tool to making decisions ourselves. The College Art Association has funding from the Mellon Foundation to do education and outreach over the next two years, to help people in our community practice making the decisions that they can comfortably say are the ones that best further the work they do, within the law. 

Inspired by “Fair Use is Not Civil Disobedience: Rethinking the Copyright Wars and the Role of the Academic Library” by James G. Neal (2011) http://hdl.handle.net/10022/AC:P:10565.

T-shirt design is from Kienitz v. Sconnie Nation LLC: where, although the 7th Seventh Circuit questioned the transformativness of the use, they found the use of the original photograph was a fair use under the four statutory factors.

Inspired by "Fair Use is Not Civil Disobedience: Rethinking the Copyright Wars and the Role of the Academic Library" by James G. Neal (2011) http://hdl.handle.net/10022/AC:P:10565.

Photo is from Cariou v. Prince: where the 2nd Circuit ruled that appropriation art can constitute transformative fair use.

North of 49

by Meera Nair, Ph.D. Author of Fair Duty (https://fairduty.wordpress.com/) and Copyright Officer for NorthernAlberta Institute of Technology.

Photo Credit: Canadian Symbol, by Kenny Loule; http://www.flickr.com/photos/kwl/2978524804

The proximity of the United States to Canada occasionally leads to some confusion north of the 49th parallel; in common parlance, fair use eclipses fair dealing. I cannot resist reminding others: we are Canadian; our exception is fair dealing. Yet it is only appropriate to also say that Canada has benefited greatly by American fair use. From our vantage point, we were able to appreciate the opportunity provided by flexibility in the language of exceptions, suffer the worst of fair use’s growing pains by proxy, and step ahead of such pain in our own development of exceptions.

Fair dealing entered into force in Canada in 1924, via the nation’s first (ostensibly independent) Copyright Act. Modeled upon the UK Act of 1911, “fair dealing with any work for the purposes of private study, research, criticism, review, or newspaper summary” was not an infringement of copyright.[1] Throughout most of the twentieth century, fair dealing was a largely unused section of the Copyright Act; if and when used, outcomes were usually in favor of the copyright holder.[2]

While fair dealing operated in this less-than-hospitable state, Canadians eyes looked longingly south of the border; fair use stood as the gold-standard of exceptions. Its flexible language appeared to shelter learning, creativity, media development, research, innovation etc. The list was endless and enviable. But closer inspection revealed that fair use had its troubles too. Through the later 20th century, and into the 21st century, the exception appeared mired in an atmosphere of overt commerciality; that exceptions were only to be relied upon as a means of addressing market-failure. That atmosphere effectively nullified the advantages of the flexible statutory language.[3] Fair use has since emerged from that distortion and is thriving.[4] Its experiences as whole offer much guidance to any country engaging with exceptions as means to balance the increased scope of power afforded to copyright owners. Canada’s fair dealing regime operates differently from fair use in the United States but seeks to uphold the same principle: the system of copyright is a set of limited rights and those limits ensure that system lives up to its mandate to enhance creativity, disseminate knowledge and spur innovation.

Readers might know that fair dealing gained prominence in Canada in 2004, via CCH Canadian v. Law Society of Upper Canada. In a unanimous decision, the Supreme Court famously characterized fair dealing as “a user’s right” and said it should not to be interpreted restrictively..[5] The language of rights was provocative; in the immediate aftermath a flurry of debate revolved around whether the court had overstepped its bounds. By comparison, almost unnoticed was the Courts insistence that “The availability of a licence is not relevant to deciding whether a dealing has been fair.”[6] That passage positioned Canada to resist placing exceptions within the confines of market-failure. Moreover, while the Court emulated the American statutory four-factor analysis of fair use, it stipulated that the framework itself was flexible and made explicit that any assessment of fair dealing is contextual.

But supportive as our Court was, and continues to be,[7] fair dealing has taken time to permeate Canadian sensibilities. Other aspects of the practice of copyright in Canada, particularly that of blanket-licensing of educational content, have only recently been re-examined with an eye to making best use, not only of fair dealing, but also the multitude of engaging material available via the Internet, Creative Commons, open access journals, and direct relationships with the publishing community. This wealth of materials does not absolve institutions from the challenge of educating their staff about appropriate use of copyrighted material—quite the contrary. Yet every person charged with the task of providing advice regarding exceptions realizes that the flexibility that is to our benefit is a challenge to explain when denied context.

To that end, an example that I have relied upon to instruct others, with some success, follows. By moving away from abstract questions, into a realm of concrete analysis, exceptional uses become clearer. The text is an excerpt from a white paper I recently authored for the Northern Alberta Institute of Technology.[8]

Example: Fair Use and Fair Dealing in practice

A former colleague wished to display a map in his chapter of a then-forthcoming scholarly book; however, his publisher balked at reproducing the map without permission of the copyright holder. The original book was in my colleague’s possession, thus he had the name of the author at hand. However, the author had long since passed away, no estate details were to be had, and the publishing company of that book was no longer in business.[9] The publisher was uneasy about the unauthorized use of the map in the chapter, but when presented with a fair dealing / fair use analysis, the publisher agreed to its use.

As set out by the Supreme Court of Canada, fair dealing must be evaluated from a variety of perspectives. The framework offered by the Court presented six questions, with the understanding that in any given situation the nature and number of questions may vary.

i. The purpose of the dealing. The chapter was prepared under the auspices of research, allowable under Section 29 of the Copyright Act.

ii. The character of the dealing. In general, a limited form of distribution is most likely to be fair. But even though the distribution of the book would not be viewed as limited, after consideration of all factors, the publisher agreed to use the map. It is a reminder that not every factor must result in a status of “fair” but that the overall assessment should lean towards fairness.

iii. The amount of the dealing. A general guideline is that the less of a work used, the greater the fairness. That said, some works cannot be portioned into representative segments. Maps are challenged this way, as indeed are all images. My colleague had chosen the map to set context for the chapter; as such, using the entire map was fair.

iv. Alternatives to the dealing. If a suitable substitute can be found with relative ease, that will influence an assessment of fairness. However, the substitute must meet with the intentions of the person who chose the work to serve a particular purpose. In the case of the map, given the time period of the subject matter, no suitable alternative was available.

v. The nature of the work. This could be described as the original intention of the work being used. Was it akin to an unpublished diary, or widely available? Is further dissemination of the work supportive of the overall goals of the system of copyright? The map was copied from an out-of-print book; thus its continued circulation would only give renewed life to the history it embodied. Such an outcome indicates the usage was fair.

vi. Effect of the dealing upon the work. By far, this is the most contentious element. Copyright holders are often quick to point out that an unlicensed use of a work is a lost license fee. However, the examination relies upon a more nuanced question: did the unauthorized use impede the expected (original) market for the work? With the original book no longer in production and very little circulation of the surviving print copies, there was no market to compete with (even if one could argue that reproduction of one map was a possible substitute for an entire book). On this factor Canada is also well served by its Supreme Court’s insistence that the presence of a license does not settle the matter.

While the rigour of the preceding analysis may be intimidating, it is not incumbent upon every person to provide an explanation in the manner of Chief Justice Beverley McLachlin.[10] A more informal explanation can be sufficient, as was the case with the map:

Final Thoughts

Within academic publishing of both research and instructional material, there tends to be inclination to examine manuscripts by dissecting out the copyrighted constituent parts and evaluating those parts in isolation to the work as a whole. This dissection method might lend itself to simplicity and easy-to-follow rules, but is a disservice to the laws and courts on both sides of the border that seek to protect the inherently collaborative nature of creativity. New works, whether they be research treatises or training manuals, ought to be evaluated holistically. To the extent that we are aware of constituent parts, it should only be in recognition that they facilitate creations that are much more than the sum of their parts.

Footnotes

[1] Copyright Act, 1921 (Can.), 11 & 12 Geo. V. c. 24; see also Copyright Act, 1911 (UK), 1 & 2 Geo. V. c46.

[2] “Fair dealing was for many years all but redundant in the Canadian courts; rarely raised and cursorily rejected;” see Carys Craig, “The Changing Face of Fair Dealing,” in  Michael Geist, ed., In the Public Interest: The Future of Canadian Copyright Law (Toronto: Irwin Law, 2005) 438.

[3] Meera Nair, “Fair Dealing at a Crossroads” in Michael Geist, ed., From Radical Extremism to Balanced Copyright—Canadian Copyright and the Digital Agenda (Toronto: Irwin Law, 2010) p.90-120.

[4] For a recent illustration of fair use’s robustness see Meera Nair, “second circuit stays on message,” Fair Duty, 15 June 2014, https://fairduty.wordpress.com/2014/06/15/second-circuit-stays-on-message.

[5] “Procedurally, a defendant is required to prove that his or her dealing with a work has been fair; however, the fair dealing exception is perhaps more properly understood as an integral part of the Copyright Act than simply a defence. Any act falling within the fair dealing exception will not be an infringement of copyright. The fair dealing exception, like other exceptions in the Copyright Act is a user’s right. In order to maintain the proper balance between the rights of a copyright owner and users’ interests, it must not be interpreted restrictively CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13 [CCH Canadian] para. 48.

[6] “The availability of a licence is not relevant to deciding whether a dealing has been fair. As discussed, fair dealing is an integral part of the scheme of copyright law in Canada. Any act falling within the fair dealing exception will not infringe copyright. If a copyright owner were allowed to license people to use its work and then point to a person's decision not to obtain a licence as proof that his or her dealings were not fair, this would extend the scope of the owner's monopoly over the use of his or her work in a manner that would not be consistent with the Copyright Act's balance between owner's rights and user's interests;” ibid. at para. 70.

[7] In 2012 the Supreme Court of Canada continued to emphasize that fair dealing should not be interpreted restrictively; “the cases provided an unequivocal affirmation that copyright exceptions such as fair dealing should be treated as users’ rights … [and] the Court continued its expansion of fair dealing by interpreting it in a broad and liberal manner.” See Michael Geist, “Introduction,” in ed. Michael Geist, The Copyright Pentalogy—How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law (Ottawa: University of Ottawa Press, 2013), p.iii-iv.

[8] Meera Nair, Orphans at NAIT (Northern Alberta Institute of Technology Copyright Project, White Paper No. 1, 2015). On file with the NAIT Copyright Office.

[9]Meera Nair, “To Promote the Progress,” in Fair Duty, https://fairduty.wordpress.com/2012/09/16/to-promote-the-progress/.

[10] In CCH Canadian, the Chief Justice of the Supreme Court of Canada authored the (unanimous) decision.

[11] Note 9, above.

What Would Ian Do?: Punk Rock and the Ethics of Fair Use

by Dan Booth, Partner at Booth Sweet LLP, a Commercial Arts & Technology law firm located in Cambridge, MA.

It’s routine in copyright debates to hear appropriation artists depicted as heartless vampires who feed off their sources and thoughtlessly toss the sullied victims aside. I’ve experienced the opposite. Fair use is routinely practiced by artists who pay savvy, creative tribute to those they admire, exploring and building from their inspirations. For example, Lauren LoPrete’s Tumblr page This Charming Charlie discovered a missing link between Peanuts and the Smiths, and became an Internet phenomenon. Heedless of fair use, Universal Music threatened it with DMCA takedown notices. At first Lauren considered giving up, announcing on her page, “I know it’s over.” But she decided to strike back punk-rock style, so we went public. She posted our counter-notice on her page the day we served it, making plain why her work is a paragon of fair use. 

The Internet rallied to her support with Smiths fans from Morrissey discussion boards to the LA Times pointing out the obvious: a band that hadn’t existed in decades could only benefit from this sort of attention. The people at Universal Music backed away silently, realizing they’d gone after the wrong person. (Again.) The site got even more famous and even Morrissey embraced it, profoundly gratifying for a lifelong Smiths fan like Lauren:

This is where the ethics of her methods become clear. She’d never profited from the site, but people started clamoring for This Charming Charlie merchandise; a friend of hers even found a This Charming Charlie knockoff shirt for sale in South Korea. Lauren seriously pondered both the legal and ethical aspects. I counseled her by asking, “What Would Ian Mackaye Do?”

Lauren took that to heart. Cool and thoughtful as always (yes, I’m her lawyer so I’m partial, but I consider those observations objectively true), she declined to go to market, deciding to stay true to the original nature of her project. This sort of fair use is a creative collaboration with the past, practiced by artists rigorously aware of the lines between an author’s rights and the public interest, and using those lines as their medium and message. That’s not vampirism; it’s rejuvenation.

Dan Booth is an attorney and founding partner at Booth Sweet LLP, in Cambridge, MA.  Booth Sweet LLP is a Commercial Arts & Technology law firm.  They serve as counsel for the creative industries, handling clients’ day-to-day business law issues, including intellectual property protection and licensing. From copyright to contracts, trademarks to trade secrets, the law plays a critical part in the creative industries.  Dan is also an officer and member of the Board of Directors of Passim, a nonprofit arts organization and an active member of Volunteer Lawyers for the Arts.

Fair Use: For Students and Scholarship

by Sarah Jeong. Sarah is a 3L at Harvard Law School.  She writes about technology, law, feminism, and civil rights/civil liberties.

Most law students, at some point or another, will spend time on a journal subcite. The process involves pulling all the sources cited in the footnotes of an article, and meticulously going through the article line by line, footnote by footnote, making sure that everything checks out. Subciting guarantees a certain quality in articles—I’d even go as far as to say that it’s integral to the creation of new legal scholarship.

Today, subcites rely heavily on new technology like cloud drives and search engines. Journals collect electronic sources in a Dropbox, which then gets shared with multiple journal members. Sometimes we scan or photograph pages out of books—that goes into Dropboxes, too. As for search engines: I’d love to see numbers on how many Google searches will be made before a journal article is finally sent to the printers—all I can say is that the final number is probably very, very large. And let’s not even get into what a godsend Google Books can be in a pinch.

I don’t think people realize the extent to which fair use rules everything around them. A pdf in a Dropbox is a copy. When twenty journal members download that file, that’s another twenty copies made. We need to make those copies just to be able to check citations—and thanks to the fair use doctrine, we have that leeway.

The simple ability to do a Google search is also something that we have the fair use doctrine to thank for—search capabilities hinge on caching, and caching has been deemed to be fair use.

And as for Google Books? It took eight years of litigation, but that too is a fair use.

Without fair use, a subcite would be impossibly illegal. Of course, that would be a completely absurd outcome. But that’s the whole point of fair use: without fair use, copyright is completely absurd. Fair use is the part of copyright that gives us room to breathe, to move, to actually get things done. Things like criticism, parody, art—and yes, even legal scholarship.

Defining Fair Use Music: From Library to Music Lab

by Christopher David DeLaurenti. Christopher is a sound artist, improvisor, and phonographer based in Virginia. His sound work encompasses field recordings, electroacoustic and acousmatic music, text-sound scores, free-improvised low-tech electronics, and compositions for acoustic instruments. His latest work No Sound Is Stolen: Fair Use Music 1983-2013 was just released today, Wednesday February 26th, 2013.

Although I’ve used snippets and substantial segments of other people’s music in my own work for decades, I have always avoided terms like plunderphonics, sampling, mashups, and sound collage.

Sonically, the names sometimes fit, but I felt instinctively that I needed another term: Fair Use Music.

It took me over 20 years to decide what to call this stuff. Discovering John Oswald’s four track EP, Plunderphonics, at the King County Library in 1994 spurred me to finish Three Camels for Orchestra. Yet calling what I do plunderphonics doesn’t feel right, despite my affection for the term and love of Oswald’s music. In my heart, I know I’m not stealing anything.

I hate the word sampling; the connotation of superficial, fly-by listening belies the profound challenge – and seduction – of sampling: To make what someone else has recorded yours. Sampling also denotes repeatedly triggering the same sound from a keyboard, pad, or predefined loop, something I would never, ever do. I love it when others do it well (namely The Bran Flakes, People Like Us, Escape Mechanism, Negativland, Steev Hise, Wobbly, Evolution Control Committee, Paul Dolden, and others) but it’s not for me. I prefer to hew and hone fragments (with debts owed to the amazing Noah Creshevsky and John Wall with a kinship to the Randomized Control Trials of Martin Bland) as in Three Camels or subject a song to convolution and other DSP and end up with “Sylvian’s Wood.”

I almost adopted “sound collage.”  Visual artists offer ample and inspiring precedents. Max Ernst’s Woman with 100 Heads is a masterpiece of precise construction. Hannah Hoch and Romare Bearden are giants of the 20th century art. Alas, collage still suggests disparate fragments rather than a single entity – casual rather than causal order. The comparison has limits: Some of my edits are (to my ears) invisible, others blunt and obvious. Visual collages seldom capture the continuum from evident assemblage to seamless entity.

Several years ago I settled on Fair Use Music, which denotes how I use others’ music both legally and aesthetically. Copyright has gone too far and lasted too long. Elastic and ever-changing copyright terms (14+14 years in 1790, now 95/120 years or life+70 years as of 1998) remind us that such rights remain arbitrary with no inherent basis in artistic creation. Laws merely a century or two old and superannuated by interminable extensions should not impede anyone’s experience of – or eagerness to transform – music.

When I create, I hope to reveal how I listen. Since you stand a greater chance of already having heard a commercial (more or less) popular recording, my fair use music illustrates how I listen more transparently than anything else I make.

There is no money in making this music; every time I sit in front of a tape deck or laptop, I, like most artists, metaphorically open a wallet or purse and set dollar bills aflame. Burn baby, burn! I make my work in defiance of capitalism at an irretrievable fiscal loss. But if everything was priced fairly, everything would cost nothing – just like the music below.

- Adapted from the liner notes to the album No Sound Is Stolen: Fair Use Music 1983-2013 which has been released today, Wednesday February 26th, 2013.

"Weird" Al Yankovic, Cassettes, and the 1980's: A Fair Use Confession

by Brandon Butler, Practitioner-in-Residence at American University, Washington College of Law, Washington D.C.

I can't remember for sure, but there is a very good chance that the first cassette I bought with my own money was a "Weird" Al Yankovic tape. (If it wasn't, it was Run D.M.C.'s "Tougher Than Leather," which tells a fair use story of its own.)

I became a huge fan of Yankovic's when I was in elementary school, and I actually heard some of the touchstones of modern rock music first as polkas (all the classics of the Rolling Stones catalog, for example, are recapitulated in the epic Hot Rocks Polka medley). I think I loved Weird Al so much because he appropriated macho, grandiose songs and made them into nerdy, silly, absurd little nuggets with guitars replaced by accordions and big 1980's production turned into cheesy novelty.

By Antmantrunks (Own work) [CC-BY-SA-3.0] Wiki Commons

As a wimpy nerd, it was extremely empowering to laugh at what other people thought was cool, to mock what they thought was tough, and to see images of domination and power twisted into stuff that was, well, goofy and weird. I know that Yankovic generally asks permission as a courtesy (though he isn't afraid to go forward without it), and he may even pay royalties to some of his subjects. That doesn't mean he isn't in some basic way a beneficiary of fair use; without it he could never mock his subjects unless they agreed to it, a permission that might have been easy to withhold, especially if the parody cuts a little close to home.

I love fair use because it empowers people like Al (people like me!) to quote culture at itself, to twist it a little bit, to mock it, and to make it our own. Fair use is a great equalizer, something all us nerds, and perhaps some of you non-nerds, too, need if we're going to make it to adulthood in one piece.