This course provides an engaging and methodical insight into the past and present cultural and commercial music industry developments, directions, and trends. It will equip the students with the knowledge and skills necessary to appreciate, understand and more productively participate in today’s music industry field.
Regulations: Fair Use Doctrine, Sampling, and Creative Commons (Part 2 of 5)
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新世界：当代音乐产业导航
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CD, MP3, and Online Marketplace
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Darko VelichkovskiMusic Industry Program Director
Music Industry
So although, according to what we have seen so far, it may not seem that fair use is possible
at all in the commercial music industry projects, there are exceptions. Remember how the list
of the areas of use begins with criticism and comment? Well, a parody is considered
a form of criticism and comment. So theoretically one could use a copyrighted work without permission
of the copyright owner if the use is in the context of parodying the original work. Actually,
one of the music industry court cases regarding this issue became very public, and it still
serves as the precedent in the business when it comes to this question.
The case is known as Campbell vs Acuff-Rose Music, and the copyrighted work in question
was Roy Orbison’s “Pretty Woman”. A Miami rap group 2 Live Crew, remade and released
their version of the song even though the song’s publisher refused to give them a
license. The publisher sued, and the case made it all the way to the Supreme Court in
1994. The court found that the 2 Live Crew’s version of the song was done in a way that
makes it a form of criticism and commentary on the original; that it was, in effect, a
parody of Orbison’s “Pretty Woman”, and that as such, its use of the original
without permission is not a copyright infringement, but can be considered fair use. The case was
thus ruled against the publisher, and for the group. And the precedent was set. Using
a copyrighted material as a part of the parody of that material is fair use.
By the way, there are artists out there, like Weird Al Yankovic, who made a whole career
out of musical parodies. His work is a perfect example of possible fair use, based on the
criticism and comment portion of the Copyright Act’s fair use provision. Though I should
mention that Weird Al usually does not rely on the fair use provision but actually requests
permissions from the artists he intends to cover in his work. His policy is that if the
artist does not want to be included in his musical parodies, he respects that, and does
not do it against their wishes, although the fair use provision would most likely protect
him from the copyright infringement claim, if there was any. And he had none so far.
Very few artists refuse Weird Al’s requests though. Prince refused it, but that’s nothing
surprising coming from Mr. Formally Known As, right? Lady Gaga at one point refused
it, too, but then changed her mind. Sir Paul McCartney refused, and this was a strange
one, because the song Weird Al was asking for was “Live and Let Die”, and he was
going to change it to Chicken Pot Pie, but Sir Paul is a vegetarian, and refused it based
on his vegetarianism. Silence. I know. No comment. But with most of the artists out
there, it’s almost like a badge of honor, a sign you made it in the industry, to be
covered by Weird Al. He even got OKs from the music legends like Jimmy Page and Robert
Plant to use Led Zeppelin material, from Mark Knopfler to use Dire Straights material, from
Kurt Cobain to use Nirvana’s material, and so on, and so on.
And while at the topic of fair use and parody, and to continue using Weird Al as an example,
so does that mean that all those copyright owners, whose music he uses in his work, do
not get paid at all because his use might be considered fair use. Well, they don’t
get paid for the creation of a derivative per se, because according to fair use provision,
no license is needed to create a parody-type derivative, and thus no payment either. By
the way, a reminder regarding derivatives, you remember how when we talked about the
music copyright in general, in our first module, we said that the copyright owners have the
exclusive right to prepare derivatives of their works; and that a derivative works license
is needed if one wants to make some alternative version of somebody else’s copyrighted work;
and how that license is not a compulsory license, meaning that it can be refused, and that a
fee for it is not set by law, but it’s whatever the copyright owner deems appropriate. That’s
one of those licenses that does not need to be obtained or royalties paid, in the fair
use case like a parody.
So as far as I am aware of, Weird Al does not pay for this type of license, though he
usually obtains permission to create a derivative of the song, as I said. But he is known to
pay for the other licenses and royalties, although if his work is fair use, he doesn’t
have to pay those either. Like, when he records a parody of some song, he still pays the mechanical
royalties to the copyright owner for recording it and distributing the copies of it. The
statutory rate for the mechanical license is 9 point 1 cents per song, per copy distributed,
as you should remember from our earlier modules? Now, of course, he may have that negotiated
down with the copyright owners to a mutually agreeable level, as we know.
So, long and short of it here would be, that if a rendition of a copyrighted song is considered
a parody, and therefore fair use, no licenses or royalties are required. But be aware of
the fact that in order for a rendition to be considered a parody, it is not enough for
it to be only humorous, but it has to be much more than just that. It has to be a transformative
type of a derivative, and not simply a superseding one, it has to contain in it something new
and different from the original that comments on the original, and perhaps even on wider
issues. And, as we said before, it is ultimately up to the courts to decide and use their own
interpretation of the fair use provision in every particular case separately. Meaning,
it is not really fair use, and no one can guarantee that something is fair use, unless
the court says it’s fair use. As the old saying goes, it’s not over until the fat
lady sings, and in the case of fair use issue, keep in mind that the fat lady is always and
only a person in a black robe, sitting on a bench, in the court of law – a judge.
It is relevant to note that throughout the past almost three decades, the issue of fair
use and using someone else’s copyrighted music in one’s own music creations, has
became more and more pressing and present, as the time went by, and it’s today at the
critical level. This upward movement started with the development of the hip-hop genre,
in the mid to late 1980s. The particular case that comes to mind is Public Enemy and their
production team the Bomb Squad.
For Public Enemy’s 1988 album, their second album, It Takes a Nation of Millions to Hold
Us Back, the Bomb Squad has created a music track that among other things includes dozens
of samples from the recordings by different artists. It is a dense collage, a sonic wall,
if you will, full of persistent tension, unbridled energy, and relentless movement. It was new
and fresh and exciting. Add to that Chuck D’s, the group’s leading MC, politically
and socially charged lyrics and his audacious delivery, and you have an album that is considered
pivotal in the history of hip-hop. Within the first month of its release, the album
went gold, and after a year, it was certified as platinum.
What’s interesting and relevant to our discussion here, is that none of the samples used on
the album were licensed by the time it was released. The sampling technology was just
making it’s way into the production studios, and neither the labels nor the publishers
noticed the pile of money behind the curve yet. Of course as the album started to make
noise in market, and some serious numbers started to appear on the sales reports, so
did the lawyers from the labels from which the original sounds for the samples on the
album came form. And why couldn’t such use of the copyrighted music be considered fair
use, and thus license free? Perhaps it could have, but there was no precedent for sampling,
so no one knew. Considering the possibility further, at the time, it certainly looked
like the chances would be slim for fair use. Because the parameters and the scope of the
fair use provision just don’t seem to allow for it. It is not a comment or a criticism
of the original work. It’s not used in an educational environment, or for the instructional
purposes. It’s not a part of news reporting, research, or scholarship. Yes, it is a transformative
type of a derivative, so that works to its advantage. But, on the other hand, it’s
used for commercial gain, and not for some non-commercial purpose, which does not automatically
disqualify it as fair use, but would normally weigh against it as such. Anyway, eventually
those licenses were taken care of without any lawsuits, and no, the group doesn’t
owe any money to anyone for using those samples any more.
