What, indeed, is fair use?

My students sometimes wonder whether their failures to find clarity in the law are the result of a lack of intelligence.  They aren’t.  Let me give a very timely example.  The New York Press writes that Girl Talk’s music — aural collages of others’ recordings — exists “without fear of lawsuit, thanks to the fair use doctrine in U.S. copyright law.”  The RIAA, on the other hand, states that “generally speaking, the use of any part of a song requires a license.”

The RIAA’s position is not without basis.  Judge Kevin Duffy in Grand Upright Music, Ltd v. Warner Bros. Records, Inc., 780 F. Supp. 182 (S.D.N.Y. 1991)(Duffy, J.), in a decision that did not even consider issues pertaining to fair use, enjoined the distribution of Biz Markie’s third album because one of its songs sampled three words and the accompaniment ostinato of Gilbert O’Sullivan’s schlock hit “Alone Again, Naturally.” Duffy wasn’t satisfied with a mere injunction, however: he referred the defendants to the U.S. Attorney’s office for criminal prosecution and wrote in his opinion, like a preacher from the pulpit,”‘Thou shalt not steal.’ [Exodus, Chapter 20, Verse 15] has been an admonition followed since the dawn of civilization. Unfortunately, in the modern world of business this admonition is not always followed.”

Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2004), compounded this folly, holding that the defendant had committed copyright infringement by using in his own musical recording a two-second sample from an earlier copyrighted recording, lowering the pitch, and looping the sample to extend it to 16 beats. Again, the court failed entirely to consider the First Amendment rights that must be balanced against maintaining the composer’s incentive to create, the very core of the fair use doctrine.

The Biz Markie case, Grand Upright Music, is generally considered the reason industry practice (as reflected in the RIAA’s statement quoted above) is to pay for any and all recorded samples. Record companies certainly have no interest in challenging the existing regime. The recordings they own are held inviolate too, so why challenge the right of another recording company to require payment for any sample, no matter how small, no matter transformative its use is, and no matter how little impact it will have on the market for the sampled piece?

Plainly, then, the New York Press is engaging in wishful thinking in assuming Girl Talk can operate “without fear” of lawsuits because of the fair use doctrine.  But MTV.com is being just as innacurate when it writes that Girl Talk’s failure to get permission to use the copyrighted recordings it uses “means that they appear in [Girl Talk's] song[s] illegally.”  And Techdirt is right on the money when it writes:

[W]ith over 300 samples used on the album, there’s almost certainly going to be a few who get upset [by the Girl Talk album]. . . . [T]he woman in charge of the copyright for the band the Guess Who is planning to go after Girl Talk, noting that: “We’ll chase it down. What more can you do?” Well, actually, there’s plenty more that you can do — such as recognizing that no one who hears the music on Girl Talk is going to see that as a replacement to the Guess Who’s album — and, if anything, it might entice new fans to the original.

So does Girl Talk exist without the fear of lawsuits?  Of course not.  But, as I wrote recently, if were advising a client whose recordings Girl Talk had sampled, I would advise that client not to sue Girl Talk: it’s position to argue that it has transformed the copyrighted materials and thus that their use is non-inringing fair use is just too good.  I’d go after someone I am more likely to beat.  Othewise, I’d lose all the leverage I have with the existence, as yet undisputed in case law, of the decisions in Grand Upright Music and Bridgeport Music.

The law may not be clear, but what I advise a client can nonetheless be clear.  Grasping that paradox is central to what it takes to being to really learn to think like a lawyer.