Transformative Fair Use for Music

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Del curso dictado por Duke University

Copyright for Multimedia

194 calificaciones

Duke University

Copyright for Multimedia

194 calificaciones

Copyright questions about different formats (data, images, music and video) can be especially difficult. Sometimes the law specifically distinguishes between these different formats, and in most cases there are media-specific considerations that impact a copyright analysis. In this course we will look at four different media, paying special attention to the unique issues for each one and the kinds of information that is important when making copyright decisions for each type of material. We will work through fair use issues for each multimedia format, look at format-specific exceptions in the law, and consider unique issues for seeking permission for film, music, images and data. At the end of this course, participants will have a deeper understanding of how to apply our framework for making copyright decisions, and will be more comfortable with assessing multimedia issues. They will have gained more and more diverse experience for considering fair use.

De la lección

Music and Audio

Copyright for music, and especially for recording music, is extremely complicated and difficult to untangle. In this module we will explore the multiple rights that must be accounted for in almost every musical composition or recording. We will pay special attention to the multitude of licenses that come in to play when creating or using music. Exceptions for using music in teaching will be covered, and we will examine fair use considerations for different musical situations in detail. This is a module that has important implications for musicians, music teachers, librarians, and all those who want to use or reuse music.

Fair Use for Music6:39

A Common Fair Use Dilemma5:25

Transformative Fair Use for Music8:15

Conoce a los instructores

Kevin Smith, M.L.S., J.D.
Former Director, Copyright and Scholarly Communication
Duke University Libraries
Lisa A. Macklin, J.D.,M.L.S.
Director, Scholarly Communications Office
Robert W. Woodruff Library, Emory University
Anne Gilliland, JD, MLS
Scholarly Communications Officer
University Libraries, The University of North Carolina at Chapel Hill

So the paradigmatic case of transformative fair use involved music and

that involved a parody of the song, Oh Pretty Woman.

As we've said a few times, the most common transformative fair use for

music is parody, which indeed this case was.

And that's probably because parody was so

important in the Pretty Woman decision that the Supreme Court heard.

And the case really was the beginning of a shift towards the use of

transformation as a very important factor in fair use analyses.

>> Mm-hm.

>> So Pretty Woman was a song that was written and sung by Roy Orbison.

And in the 1980s the rap group Too Live Crew made a parody of the song.

They changed some of the words and they made it into a very,

very different- >> [LAUGH] Yes it was.

>> Type of song [LAUGH] it was when they started.

It was no longer about this beautiful, pretty woman, it was much more derogatory.

And the purpose, of course, of the parody was commercial,

they intended to sell CDs, and they did.

So, Roy Orbinsons's music company didn't have much of a sense of humor about this

and they sued.

And so litigation went on for some years as litigation tends to do.

And finally the case ended up at the Supreme Court,

where they held that the parody was fair use because the purpose of the new song

transformed the original.

It was no longer the same song, it didn't have the same purpose, and

very importantly, it didn't have an effect on the market for the original song.

The Supreme Court justices really felt that the people

who would buy the parody would not necessarily

have ever bought the original- >> Sure.

>> For example.

And of course, if there were any harm to the market for the original,

there was also the issue of the First Amendment and the free expression.

And the fact that a parody just has to be protected to some degree,

in that no original artist is gonna be crazy about a parody.

>> Sure. >> Not in most cases.

>> Sure.

>> Yeah, so since the purpose was so obviously transformative, and

the risk of the market harm was so negligible, the court held that

the other factors in the fair use analysis became less important.

>> Mm-hm. >> The transformative nature of the work

had such a big impact on the entire way that we looked at fair use in

this context.

And so, one thing that is helpful when

trying to decide if a use is transformative is to ask three questions.

One is, does the copyright material you are using help you make a new point or

support a theme or concept, or

create a new expression that has a different meaning than the original?

The second is, will the incorporated material help your

listener understand better what you want to express?

>> Mm-hm. >> Does it enhance the expression?

And finally, have you used no more of the incorporated work than is necessary for

the new expression?

And if you can answer yes, yes,

yes to those three, it's very likely that your use is transformative and

you can make a very strong case for a transformative fair use.

>> So while it's true that many fair uses of music involve parody, like

the Pretty Woman case, or for example the kind of thing that Weird Al Yankovic does.

There are other kinds of uses that look transformative, other

kinds of uses in music specifically, and therefore are likely to be permissible.

For example, using small clips of music to create an index.

We've seen that that has been held to be a fair use when it was done with images and

with text, it's probably also the case that a musical index would be a fair use.

So that's another way we can imagine a transformative fair use of music.

Earlier, we briefly mentioned the artist who calls himself Girl Talk.

And his performances and recordings are really complex mash-ups that

feature multiple layers of copyrighted music all combined into a new work.

His is an interesting case to consider.

His use of other people's copyrighted music certainly seems

to be transformative rather like appropriation art.

But as we've seen, fair use and music is often rather difficult,

sampling for example, which is sort of what Girl Talk does.

It seems likely to me that Girl Talk's performances, which are transformative and

transitory, and he makes a lot of his money as essentially a performance artist,

because there not fixed so the audience can't take them home.

Those are very likely to be fair use, I think, and would not be very threatening

to the other performers and music companies whose music he uses.

The Girl Talk recordings, however, might be more dubious,

since they could easily provoke music companies

who hold the copyright in the underlying music to ask for licenses.

It's difficult to predict how a fair use case would come out if the Girl Talk

recordings were challenged and Girl Talk declined to purchase a license.

It's likely that that hasn't occurred because his financial model,

which is pay what you can.

>> Right, yeah. >> Doesn't really threaten the traditional

music industry.

So we haven't seen a case there, but I do think there's

an interesting line around what may be fair use and probably is not.

So now that we've discussed transformative uses of music, let's go back to the common

situation we talked about earlier, where someone makes an original video but

wants to use copyrighted music as a background.

Are there situations where such a use of music could be transformative and

therefore likely to be fair use?

>> I bet there are.

>> I think there are.

>> [LAUGH] >> Thank you.

[LAUGH] I think there are.

Where the music is closely related to the theme of the video and

is used to support that theme in appropriate amounts.

So I saw an amusing video a few years ago,

where it was made by a student about a very bad day at her university and

it won a contest that the university had for videos.

Everything seemed to go wrong this day.

And her video illustrated each disaster or oddity with a different piece of music,

and the music was really closely related to the theme.

So when, for example, she got on a strange motorcycle driven by somebody

with a helmet that she didn't know because she was late for

class, the music Born to be Wild was playing.

When she encountered a group of zombie-like students from a rival

university wandering around her campus, the theme from the Twilight Zone played.

>> That was a bad day.

>> It was a bad day.

[LAUGH] Yes.

It happens that Anne and I are at the two rival universities involved.

>> [LAUGH] >> [LAUGH] So.

>> Those zombies, you gotta watch out for them.

>> You do.

And there was another scene where she arrived in her classroom and

everybody seemed to be a magician except for her and the theme for

Harry Potter was played in the background.

Those are all obviously copyrighted songs, but you notice that, each time,

the music related very closely to the theme of what was happening.

It helped people understand better.

Even though it wasn't a serious or artistic work,

it helped people understand better what each scene was about, and

only clips were used, only the amount necessary for that particular scene.

So, I think there's a much stronger argument there for

transformative fair use.

And this I think is the way that using music as background for

a video could be a transformative and therefore a fair use.

Thanks for watching.

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