0:03
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.
2:46
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?
3:06
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.
3:33
>> 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.
4:18
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.
5:33
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.
6:05
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.
Kevin Smith, M.L.S., J.D.Former Director, Copyright and Scholarly Communication
Lisa A. Macklin, J.D.,M.L.S.Director, Scholarly Communications Office
Anne Gilliland, JD, MLSScholarly Communications Officer
