Fair Use and Music

[heidi]

Today's New York Times has an article about D.J. Girl Talk, whose real name is Gregg Gillis, and whose new album is one of the first mainstream releases to claim fair use in his new album “Feed the Animals,” which he released online at illegalart.net earlier this summer.

As the article says, he doesn't pay for use of the clips that he incorporates into his songs because "he maintains that the brief snippets he works with are covered by copyright law’s 'fair use' principle."

In legal terms a musician who uses parts of other compositions creates what copyright law calls a derivative work, so the permission of the original song’s writer or current copyright holder is needed. Artists who sample a recording also need permission from the owner, in most cases the record label. Hip-hop artists who don’t get that permission have been sued, often successfully.

Mr. Gillis says his samples fall under fair use, which provides an exemption to copyright law under certain circumstances. Fair use allows book reviewers to quote from novels or online music reviewers to use short clips of songs. Because his samples are short, and his music sounds so little like the songs he takes from that it is unlikely to affect their sales, Mr. Gillis contends he should be covered under fair use.

He said he had never been threatened with a lawsuit, although both iTunes and a CD distributor stopped carrying his last album, “Night Ripper,” because of legal concerns. (It had sold 20,000 copies before then, according to Nielsen SoundScan.) It may not be in the interests of labels or artists to sue Mr. Gillis, because such a move would risk a precedent-setting judgment in his favor, not to mention incur bad publicity.

This dovetails with recent and on-going discussions within fandom because some IP lawyers believe that this sort of creativity isn't what fair use is supposed to incorporate. BArry Slotnick of Loeb & Loeb was quoted in the article as saying, “Fair use is a means to allow people to comment on a pre-existing work, not a means to allow someone to take a pre-existing work and recreate it into their own work..."

I think the article would've been more comprehensive had they actually obtained a quote from an attorney who believes otherwise. For example, I believe that Mr Slotnick is personally setting a limit on Fair Use that goes far beyond what the courts have set - there's nothing in federal copyright law that says that commenting on a pre-existing work is limited as to type or genre. The courts haven't said that commenting on a prior work has to take a certain form or mode, and any sort of commenting has to be a part of the second writer's own creation.

I think one of the most interesting lines in the article is the notation that if a label or artist sued Mr Gillis, it would "risk a precedent-setting judgment". I think that's an important and accurate acknowledgment that there is a significant risk to TPTB if they took action against fan-creativity, whether it's musical, fictional, artistic or otherwise. They're relatively safe when all they do is send out cease and desist letters - people generally either cease, or they talk back and explain the legal reasons why they shouldn't have to, but neither act creates a court decision and thus neither act creates precedent - and I've never seen a fan seek declaratory judgment that they are non-infringing, although one could do so after getting a C&D letter.

In other words, neither side wants something precedent-setting to happen because there's a significant risk that a court decision could limit Fair Use beyond what has been allowed by the courts up 'til this point, or, on the flip side, the courts could decide that commentary and criticism of the source-work justify allowing such commentary and criticism to be wide-ranging and unrestricted by limitations on the type of media the comment/criticism can be created in, or setting a solid number of words or notes or brush-strokes.

Btw, does anyone know if Gillis lists all the works he sourced to create the album? I'm not seeing it on the website, but I can't tell if you can see it after you pay to DL the album.

Semi-related to this, morgandawn has posted a useful print-and-save guide to What You Can Do If You Get a Cease & Desist Letter. Read it now, and add it to your Memories in case you need it later. And I hope you don't!

Comments

[sabaceanbabe.livejournal.com]

How ironic. I just posted about NBC Universal blocking a BSG video I uploaded yesterday because of the clips used. And I added morgandawn's posted to my memories just yesterday, too.

[norton-gale.livejournal.com]

I haven't searched Westlaw (and am not an IP lawyer), but it's hard to believe that the issue of fair use in sampling has never been addressed by the courts. Bands and DJs have been assembling songs from samples for years. I would think that samples limited to a certain length would be consistent with the law of fair use. Using a sample is not equivalent to commenting on a pre-existing work (like a book review); it's an appropriation, but copyright protection can only extend so far.

EDIT: Oops, meant to comment to main post, not to respond to comment above...

[heidi8.livejournal.com]

The cases thus far have dealt with things like a repeated bass line or a set of notes used over and over again, and not with the specific sort of situation we have here, where a large number of different songs are being sampled and re-assembled in a completely different setup. You can look at the notes in the My Sweet Lord case to see the "standard" music copyright infringement case.

What he seems to be doing is more like what early hip hop and rap music did, sampling a number of songs. And into the early 90s there were suits about some aspects of that kind of sampling - there was a case involving a Beastie Boys song which they licensed for the sound recording, but not as a composition (and it didn't get resolved for over ten years).