With the development of digital music in the mid-1990s, the act of sampling became very popular and is now a fundamental element for musical styles like Rap and Hip-hop. The use of samples to construct new songs is considered a derivative work and usually a license is required. Copyright owners have already successfully sued Hip-hop artists that tried to use samples without these licenses.
Another sample-based derivative work is the Mash-Up; a type of composition that blends two or more pre-recorded sounds creating an entirely new musical composition. While Mash-Ups are also considered a derivative work, artists like Gregg Gillis – known as DJ Girl Talk – are trying to push the boundaries of the strictures of the law by trying to include these musical collages under the fair use concept.
Girl Talk’s latest album, All Day, was released as a free download on November 15th and has more than 350 samples of different sound recordings in approximately seventy minutes of runtime. Obtaining all of the necessary licenses for each sound recording used would have been very costly and extremely time consuming. Gillis, having planned to release the album for free, decided to move forward without licensing a single track – not even the three-minute use of Black Sabbath’s War Pigs– claiming that his creations fit the guidelines of fair use. However, to determine congruency with the fair use doctrine, it is necessary to understand the origins and basis of the fair use concept.
Fair Use Revisited
Following a tendency that had been developed through case law, the 1976 Copyright Act recognized the fair use doctrine as a defense against copyright infringement. The goal of that concept was to permit certain uses of copyrighted works that encouraged the advancement of learning and knowledge and to provide wide access to creative works for the public. It is important to understand that fair use is not an affirmative right, but merely a defense against a copyright infringement. There is a false common belief that it is considered “fair use” to use an unlicensed, copyrighted work as long as one gives credit to the author or copyright owner (the assumption that a use is fair can be risky, and technically speaking, it is considered fair only when a court decides so).
The Copyright act listed certain types of use that are likely to be considered as fair, such as criticism, comment, news reporting, teaching, scholarship and research. This list is just illustrative and there are other types of uses that can be considered fair as well. Also, Section 107 of the Copyright Act lists four main factors to be considered by a court to determine whether or not a particular use is fair:
- The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
- The nature of the copyrighted work;
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole;
- The effect of the use upon the potential market for, or value of, the copyrighted work.”
The first factor focuses on the observation of how the work is being used. If the use is related to information and/or education, it is more likely to be considered as fair since there are public benefits in these purposes. In general, the nonprofit character will weigh towards fair use, but the commercial use by itself does not discard the fairness of the use, since most uses are commercial to some extent. The court’s main concern is finding out if the user stands to profit from exploitation of the copyrighted material without paying the customary price for the licenses–and Girl Talk’s does profit from the act.
The transformative quality of the use is also analyzed here as a means to distinguish infringement and fair use. A use that is transformative, rather than imitative, has more of a chance to be qualified as fair, for it inserts the piece in a different context and purpose. Girl Talk’s sample works are transformative, in that he transforms different pieces of existing sounds recordings into a new work of his own. However, his purposes are strictly commercial and do not involve educational value or critical commentary. In addition, the good faith of the defendant is extremely relevant in court analysis of the first factor. As the album was distributed on a website called Illegalart.net, the presumption of good faith can be quite a stretch.
When analyzing the nature of the copyrighted work, the court must determine if the work was published or unpublished, or if it is a factual or creative work. As musical works are creative in essence, this factor usually weighs against fair use- even more so when it is an unpublished work, in which case, the original author has the right of first use before a derivative creator. Gregg Gillis’ samples come from published original works- a fact that does not harm the first use principle. The third factor refers to the portion of the copyrighted material used. There is no absolute rule to determine how much of a work can be used to be considered fair. Not only is the size and proportion of the work relevant, but also the qualitative dimension of the portion used. The greater the amount used, the less likely a use will be considered fair. Yet in some cases, the use of even a very small part- if considered signature to a song- may characterize the use as an infringement.
Probably the most important of the four factors is the final, stating that it is important to analyze the value and the potential market of a copyrighted work. Any use of a copyrighted work –fair or unfair- it will automatically affect the copyright owner to some extent, as since they are not receiving any licensing incomes. This is tolerated due to the public benefits afforded from the fair use of the work. However, if the new work competes with, or reduces the potential commercial market for the original copyrighted material, then the use will most likely be deemed unfair. Again, a commercial use has a presumed adverse impact on the market for the original copyrighted work and reduces the credibility of fairness. Girl Talk’s main argument relies on the last two factors: He alleges that his work is based on various small portions of original works, and the substantiality of it will not substitute or harm the copyright holder’s original or potential markets.
Girl Talk is aware of the risks that he is taking by not licensing the samples that he uses. There is no way to prevent a lawsuit of copyright infringement by claiming fair use and only a court has the power to determine his particular uses as fair or infringed. The expenses needed to prove fair use in court can be very high, sometimes surpassing the amount needed to obtain the legitimate licenses in the first place. Although Girl Talk has not yet faced a lawsuit for copyright infringement, the major distributors of digital music decided to not offer his albums on their websites. Major labels and publishers are most likely holding their moves against the artist because they are afraid of the negative attention and the potential setting of precedent in favor of the fair use.
By Luiz Augusto Buff