I wrote this paper for Intellectual Property. It's something like 23 pages long, so I don't expect anyone to actually read the full thing!
Fair Use in the Music Industry
I. Introduction
The defense of fair use, although codified in 1976 into United States copyright law in 1976, has its origins in the case of Folsom v. Marshin 1841. Justice Story declared that the question of copyright infringement often depends in part upon “a nice balance of the comparative use made in one of the materials of the other.” Ever since its first appearance in the jurisprudence of the United States, the doctrine of fair use has created a myriad of problems for judges, attorneys, and authors. In fact, Judge Learned Hand described it as “the most troublesome in the whole law of copyright.”
The question of fair use in the music industry is no less complex. In addition to older issues such as sampling, the 21st century has brought with it a new problem for judges to sort out: digital music copies and peer-to-peer sharing.
This paper will briefly review the affirmative defense of fair use in general before analyzing its specific application to the music industry, including both more traditional issues as well as those surrounding digital technology.
II. Fair Use in General
Since the origins of copyright protection, opportunities for the fair use of copyright protection have been thought necessary to fulfill the purpose of copyright: “to promote the progress of science and the useful arts.” Fair use is an affirmative defense that can be raised by the defendant in a copyright infringement claim. The doctrine is based on the need to balance an individual’s rights in his or her own work with the interests of the public in dissemination of information. Thus, fair use generally applies when the copyrighted work is used for purposes relating to education or news reporting.
The Copyright Act of 1976 defines the scope of the fair use defense: “the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified…for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”
While the statute makes clear the general type of uses that are acceptable, the jurisprudence makes clear that fair use is a defense often pled but difficult to prove.
In an effort to aid jurists and juries in a determination of whether the use of a copyrighted work was “fair” within the meaning of The Copyright Act, congress enumerated four factors which may be considered in the decision:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
In addition, Congress indicated that the list of factors in this section are illustrative rather than exhaustive; the statute is “intended to restate the present judicial doctrine of fair use, not to change, narrow, or enlarge it in any way.”
The first case to recognize the doctrine of fair use also identified a series of factors to guide the court in its determination: “look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work.”
While the illustrative nature of the factors helps to create a doctrine that is flexible and which focuses more on equality than on black-letter law, it also spawned a quagmire of jurisprudential rules and caveats that makes it nearly impossible to pin down a precise definition of what constitutes fair use.
While there are certainly some clear cases on both ends of the spectrum, there are an equal number—or, more likely, even more—cases that fall somewhere in the middle. It is these cases that make the defense of fair use the difficult and convoluted doctrine it has been since its inception.
Most people would recognize that quoting and attributing a few lines from a song in a review of the artist’s work is a fair use, while creating and selling an exact copy of that song under his or her own name is not. The cases in between these two extremes, however, cause a great deal more frustration.
American Jurisprudence characterized the analysis as “case by case,” and as an “equitable rule of reason that permits courts to avoid rigid application of the copyright statute when, on occasion, such application would stifle the very creativity which the law is designed to foster.”
III. Fair Use in the Music Industry
The music industry has developed a reputation as of late for zealously protecting their copyrights. The rise of the internet has made illegal sharing and copying of music simple, fast, and very tempting. The Recording Industry Association of America takes a strong stand against music sharing and piracy—both online and on the streets. The RIAA cites $12.5 billion in economic losses per year as a result of piracy, and describes its “efforts to educate fans about the value of music and the right ways to acquire it and, when necessary, to enforce our rights through the legal system.”
Many Americans, particularly those in the younger generation who grew up with digital technology, believe that downloading music should be legal and not as strongly protected by copyright laws—after all, art should be about the expression, not the money. But jurisprudence and statutory laws both disagree.
Courts deciding the question of fair use in a case involving musical recordings follow the guidelines set out in the copyright act; as in other fair use cases, the ultimate test is whether the “progress of science and the useful arts” would be benefitted more by allowing the use of the copyrighted material, or by restricting it. The cases cover a broad range of topics, from a struggle over the rights to the lyrics displayed on a karaoke machine to the question of whether music downloading is a fair use to the rights of an artist to sample small (or, in some cases, not so small) portions of another artist’s music for use in an original recording.
The convoluted nature of fair use doctrine in the United States dictates a case-by-case examination of judicial holdings in order to grasp the situations in which fair use is—and isn’t—a valid defense.
a. Jurisprudential Authority
In 1994, the United States Supreme Court applied the fair use statute in the Copyright Act to arrive at the conclusion that the commercial nature of a song parody did not create a presumption against fair use. In Campbell, the rap group 2 Live Crew created a song parody of Roy Orbison’s song, “Oh, Pretty Woman.” The group’s manager informed the holders of the song’s copyright, Acuff-Rose Music, Inc., that 2 Live Crew had written a parody of the song, and stated that they would “afford all credit for ownership and authorship of the original song to Acuff-Rose, Dees, and Orbison, and that they were willing to pay a fee for the use that they wished to make of it.” Acuff-Rose’s agent refused to give permission for the song parody.
2 Live Crew published the song despite the lack of permission; on all albums and compact discs, the authors of the song “Pretty Woman” were clearly identified as Orbison and Dees and its publisher Acuff-Rose. Nearly a year later, Acuff-Rose filed a copyright infringement action against 2 Live Crew and its record company, Luke Skyywalker Records.
The District Court ruled in favor of 2 Live Crew, holding that the commercial purpose of the record was no bar to fair use, that the song was a parody, and that the group had taken no more than was necessary to “conjure up” the original in order to parody it, and finally that it was extremely unlikely that 2 Live Crew’s song would adversely affect the market for Orbison’s original song.
The 6th Circuit Court of Appeals reversed and remanded. The Court felt that 2 Live Crew hadn’t been able to overcome the presumption created in a previous Supreme Court case involving fair use that “every commercial use…is presumptively unfair.” The 6th Circuit went on to find that the commercial nature of the parody was the most important element in the fair use analysis, and concluded that 2 Live Crew did not have a valid fair use defense.
The Supreme Court reversed and remanded. The Court quoted Justice Story in the early stages of its analysis: “[i]n truth, in literature, in science and in art, there are, and can be, few, if any, things, which in an abstract sense, are strictly new and original throughout. Every book in literature, science and art, borrows, and must necessarily borrow, and use much which was well known and used before.”
The four statutory factors, the court found, are not to be “treated in isolation, one from another. All are to be explored, and the results weighed together, in light of the purposes of copyright.”
The first factor, “the purpose and character of the use,” is discussed at great length in this decision, primarily because it is in this factor that “commercial use”, an important feature in both lower courts’ opinions, comes into play. The court compares this factor to the first part of the fair use statute, stating that the “enquiry may be guided by the examples given in the preamble to §107, looking to whether the use is for criticism, or comment, or news reporting and the like.”
It is in the analysis of this factor that the court discusses the concept of the transformative use:
The central purpose of this investigation is to see, in Justice Story’s words, whether the new work merely “supersede[s] the objects” of the original creation…or instead adds something new, with a further purpose or different character, altering the first with the new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is “transformative.”
The goal of copyright, the Court states, is generally furthered by transformative works, and as a result, the transformative work is the best example of fair use of a copyrighted work. In fact, the more transformative the work is, the less significance should be given to the other factors, including commercialism, that might weigh against a determination of fair use.
The Court points out that the very nature of parody dictates that it contains “some elements of a prior author’s composition to create a new one that, at least in part, comments on that author’s works.” Ultimately, however, the court rules that a parody has no presumption of fair use in and of itself, and that neither the Copyright Act nor the prior jurisprudence recognizes such a presumption.
Concluding its examination of the first factor, the Court states that “If, indeed, commerciality carried presumptive force against a finding of fairness, the presumption would swallow nearly all of the illustrative uses listed in the preamble paragraph” of the fair use statute.”
The second factor in the statute, and the second factor the Court discusses in Campbell, is “the nature of the copyrighted work.” This factor “calls for recognition that some works are closer to the core of intended copyright protection than others, with the consequence that fair use is more difficult to establish when the former works are copied.” For example, short stories, books, and motion pictures are probably closer to what copyright protection was intended to cover than news broadcasts and factual works. As a result, a defense of fair use is more difficult to establish in claims for infringement of the former class of works.
In this case, the song falls within the core of works that copyright was originally meant to protect. However, the court warns that “This fact…is not much help in this case, or ever likely to help much in separating the fair use sheep from the infringing goats in a parody case, since parodies almost invariably copy publicly known, expressive works.”
The third factor is whether “The amount and substantiality of the portion used in relation to the copyrighted work as a whole.” This question calls for an examination of both the quality and the quantity of copyrighted materials used. In this case, the issue is the reasons why 2 Live Crew chose to copy those portions of the song that it selected. The Supreme Court “fail[ed] to see how the copying can be excessive in relation to its parodic purpose, even if the portion taken is the original’s ‘heart.’”
The fourth fair use factor that the Court considers is “the effect of the use upon the potential market for or value of the copyrighted work.” It requires the consideration of both the harm caused by the alleged infringer, as well as the type of harm that would result from widespread conduct of the type engaged in by the defendant. The court found that no “presumption or inference of market harm that might find support in Sony is applicable to a case involving something beyond mere duplication for commercial purposes.” In the matter of the fourth factor, the court found that “The fact that a parody may impair the market for derivative uses by the very effectiveness of its critical commentary is no more relevant under copyright than the like threat to the original market.” However, the court also found that 2 Live Crew provided no actual information on the nature or extent of any market impairment, thus disentitling them to the grant of summary judgment.
In its conclusion, the Supreme Court found two errors on the part of the Court of Appeals; first, the court erred in concluding that the commercial nature of the parody rendered it presumptively unfair. Second, the court erred in holding that 2 Live Crew had copied excessively from the original.
More recent fair use cases involving parties from the music industry quote from Campbell.
In 2001, the Ninth Circuit Court of Appeals took on the case of A&M Records, Inc. v. Napster, Inc. As most people in the United States know, Napster uses peer-to-peer file sharing to facilitate the transfer of music files between users. It was originally free, but in part as a result of the A&M Records suit, has since changed hands and is now being operated as a pay service. The plaintiffs sued Napster, claiming that the company’s users are engaged in the reproduction and distribution of copyrighting works.
The district court agreed with the plaintiffs, granting a preliminary injunction preventing Napster from allowing its users to access, download, upload, or otherwise transmit any copyrighted material.
On appeal, the Court of Appeals conducted a relatively in-depth examination of Napster’s claim that its users are engaged in the fair use of the copyrighted music files. Napster identified “three specific alleged fair uses: sampling, where users make temporary copies of a work before purchasing; space-shifting, where users access a sound recording through the Napster system that they already own in audio CD format; and permissive distribution of recordings by both new and established artists.”
The Ninth Circuit recites the four factors enumerated in the Copyright Act, then applied the factors to its current case. First, citing Campbell, the court examined the question of whether the new work is “transformative,” and found that the downloaded MP3 files were not transformations of the copyrighted works. The court also found that the district court was “not clearly erroneous” when they determined that the users’ downloading of the music was commercial in nature; first, the host user who is sending a file is not engaging in a personal use. Second, Napster users get something for free that they would otherwise have to buy.
The Court found that economic benefit is not required for a usage to be “commercial.” This makes sense, because every song downloaded for free on Napster is, in theory, a song that wasn’t purchased from the record company. The court sums this up by stating that “repeated and exploitative copying of copyrighted works, even if the copies are not offered for sale, may constitute a commercial use.”
The court then determines that musical compositions such as the ones in question are creative in nature. This “cuts against a finding of fair use” under the second factor.
The third factor that the court looks at is the portion of the copyrighted works that are being used by the Napster users. Obviously, Napster users were not downloading small portions of the songs in question—they were downloading the whole songs (and, in some cases, entire albums). This obviously does not support a finding of fair use.
The Court quoted a previous fair use caseto make the point that fair use is meant to be applied to copying that does not impair the marketability of the work copied. A long discussion of the application of the concept of market impairment follows. A summary of the court’s argument is simply put: Napster harms the market by reducing CD sales amongst its users (which, at the time, included most college students across the nation, among others), and it creates a barrier to A&M’s entrance into the market of digital downloads.
After examining the four factors, the Ninth Circuit addressed several uses which Napster claimed were wrongly excluded as “fair uses” by the district court. The first use was sampling. The Courts dealt with this issue simply by stating that sampling, or the process of downloading one song to see if a user liked the album before buying it, was still a commercial use. In addition, research at the time showed (and still shows) that peer-to-peer file sharing networks have an adverse affect on CD sales, which indicates that users are not simply sampling one or two songs before buying the album.
The second use which Napster claimed as a “fair use” activity was “Space-Shifting.” This means that the users are downloading MP3 files in order to listen to music that they have already bought on CD. The Court agrees with the district court that this is not a fair use for one main reason. First, the activity of Napster users is not limited to “personal use;” Napster users simultaneously make these songs available to the general public. Therefore, from one (perhaps legitimately purchased) copy of an MP3 comes potentially millions of copies available for permanent download and use by users who have not bought the album, and likely never will.
The final claim made by Napster is that of “permissive reproduction by either independent or established artists.” The Court points out that plaintiffs do not seek to end this practice, and finally concludes by stating that it is clear that Napster does not have a fair use argument, since none of the four factors were favorable for fair use.
The United States Supreme Court took up the issue of digital music downloading In the Grokster case in 2005. The issue of fair use was not brought up in the majority opinion (perhaps because the Grokster attorneys were at this point smart enough to realize that fair use didn’t work for Napster, and it probably wouldn’t work for them either), but Justice Ginsburg briefly—very briefly—mentioned fair use in her concurring opinion. She simply says “Here, there has been no finding of any fair use and little beyond anecdotal evidence of noninfringing uses.”
The Grokster and Napster cases seem to be the first nails in the coffin for digital music downloading as a fair use of the copyrighted songs. Other court cases affirmed this ruling. However, fair use still exists as a viable defense in other aspects of the music industry. That is, if the defendants can show that their use is a fair use when the factors from the Copyright Act are applied.
In the case of Zomba Enterprises, Inc. v. Panorama Records, the 6th Circuit found that a creator and distributor of Karaoke discs had not been engaging in a fair use of copyrighted song recordings and lyrics. Panorama Records had been selling these Karaoke CD’s for two years, without the licenses to any of the materials, before a music publishing company discovered the unauthorized use and sent a cease and desist letter. Panorama then negotiated for and obtained the licenses for all songs under the Without Anna label. However, even after Zomba Enterprises sent another cease and desist letter to Panorama, the company failed to obtain licenses for Zomba songs and continued producing CD’s that contained Zomba songs.
Zomba Enterprises then filed suit against Panorama. Again, the court considered the four main factors in the fair use statute of the Copyright Act, concluding that Panorama had clearly not been engaged in fair use. First, the works produced by Panorama were not transformative in any way, despite the fact that Panorama hired musicians to re-record these songs ; they were merely recordings of the compositions (without vocals) with the lyrics scrolling at the bottom of the screen. Second, the court dealt with Panorama’s claims that the CDs are for the purpose of a use listed in the preamble to the statute; Panorama claimed that the purpose of the CDs was to teach people how to sing. The court rejected this and found that the purpose of Karaoke was commercial in nature; karaoke is for entertainment, not teaching. The court found that Panorama’s use also failed the “nature of the copyrighted work” and “Amount and substantiality of the portions used” tests before moving on to consider the effect on the potential market for the copyrighted work.
The Sixth Circuit held that Panorama had “failed to sustain its burden of proving that its copying does not adversely affect the market value of Zomba’s copyrights.”
The Ninth Circuit Court of Appeals considered another case of Karaoke machines in 2008, and also concluded that the display of images and song lyrics in real time with the music recording was not fair use.
Leadsinger purchased from BMG “Compulsory mechanical licenses” to BMG’s copyrighted music, but refused to pay an additional “lyric reprint fee” for the permission to display the lyrics in real time with the music recording on a television screen. Leadsinger then sought a declaratory judgment regarding its obligation to pay these fees.
Applying the traditional fair use analysis, the Ninth Circuit found no fair use in Leadsinger’s use of the lyrics. Leadsinger’s use failed all four factors. With regard to the fourth factor, the Court stated that “we have…concluded that Leadsinger’s use is intended for commercial gain, and it is well accepted that when ‘the intended use is for commercial gain’ the likelihood of market harm ‘may be presumed.’
A very recent Sixth Circuit case involved the use of repeated words and patterns of sounds taken from a previously copyrighted work. In Bridgeport, plaintiffs claimed infringement by Public Announcement, an “R & B and hip hop group.”The claim was based on the song “D.O.G. in Me;” the plaintiffs claimed infringement of a famous George Clinton song, “Atomic Dog.” The claim was based on the use of the phrase “‘Bow wow wow, yippie yo, yippie yea’”, as well as the repetition of the word “dog” in a low tone of voice at regular intervals and the sound of rhythmic panting in ‘D.O.G. in Me.’”
On the fair use issue, the Sixth Circuit again lists the four fair use factors from the Copyright Act’s relevant statute. The defendant’s assignment of error on this issue is that the judge did not properly instruct the jury on the issue; his instructions stated that “an homage or tribute is “‘not necessarily fair use.’”
On a brief analysis of the four factors, the Court of Appeals concluded that the jury’s finding that there was no fair use was not unreasonable, and that the balance of the factors weighed in favor of the plaintiff.
The jurisprudence clearly indicates that fair use is a difficult defense to successfully raise; it is virtually impossible to successfully claim fair use in a situation where the defendant has been copying and distributing entire songs to others. Moreover, a commercial use of copyrighted materials also makes it much harder, though not impossible, to prevail in a fair use claim.
b. Scholarly Authority
American scholars have written extensively on the doctrine of fair use, and many have written specifically about the music industry. Often, these articles raise new issues in the copyright world.
One of these issues is that of song collages pieced together from multiple music samples. David Mongillo’s article The Girl Talk Dilemma examines this question. His article begins with Gregg Gillis, a recording artist for the Illegal Art label who publishes under the name Girl Talk. Gillis uses software on his computer to piece together song snippets into full-length song collages. He has made several year-end best music lists, and has never sought licenses or authorization for any of the samples he uses. And yet he has never been sued. Mongillo states that “some hypothesize that the major labels have not brought action for fear of losing in court and creating a new precedent more amenable to artists like Girl Talk.”
Gillis believes that his work falls under the fair use defense of the Copyright Act, and Mongillo argues in favor of an expansion of the doctrine to include artists like Gillis.
Mongillo explains that while Girl Talk’s work does not fit neatly into the fair use dichotomy, the courts should still interpret the doctrine so that his music is considered fair use in order to further “the progress of science and the useful arts.” If Gillis’ work is not considered fair use, Mongillo argues, than music of his type will be stifled, and the progress of musical arts will not be able to move forwards unhindered.
An interesting blip in the digital music and fair use controversy is John Faust’s 2001 law review article about college students’ use of digital music download services such as Napster. In the article, Faust applies the four statutory factors as well as other considerations to arrive at the conclusion that “The four-factor test and these other considerations show that students are likely protected from copyright infringement accusations.”
Clearly, jurisprudence from the years after Faust’s articles reveals that the courts do not agree with this determination. Other interesting comments to Faust’s articles that have since been proven incorrect are “those downloading digital music are not purchasing less music,” and “the last factor, the effect of the use upon the potential market for or value of the copyrighted work, supports the availability of the fair use exception.”
Faust’s arguments for why fair use should apply to individual downloaders of digital music is a well-reasoned argument in 2001; however, looking back nine years later, it is clear that the doctrine has taken a different path with respect to digital music.
Finally, David Bloch wrote an interesting article on the need for increased protection in drum beats. In the section entitled “Fair Use and the ‘Amateur Exception’”, he sums up fair use in the context of music and rhythm sampling as a “particularly thorny issue.” He further cites the problem with applying the fair use doctrine to rhythms: “even a small portion of a drum beat can represent a major misappropriation of the creator’s intellectual expression, because drum rhythms are usually repeated. A 4-bar sample may contain the entire rhythmic structure of a song, despite the fact that 4 bars is likely to be only a fraction of the total song’s length.”
IV. Conclusion
As the many cases on the issue demonstrate, fair use is a complicated and problematic doctrine. Once infringement has been established, it is the infringing party’s burden to prove fair use. The nature of the statute on the subject dictates that fair use be determined on a case-by-case basis; furthermore, it is clear that fair use is a difficult defense to successfully argue, particularly if the infringing use is a commercial one.
Ultimately, courts will probably find fair use mostly in cases where the infringing use is non-commercial or transformative; commercial, non-transformative uses will almost never be given the protection of the fair use doctrine.
