Mashups and Fair Use

Gregg Michael Gillis, better known as “Girl Talk,” is an American musician who produces mashups, digital sampling and compilations of other peoples’ music, often without copyright permission. Gillis is seen by some as a test case for music mashups in the Internet Age.

But Michael Gillis is not alone. The ease of combining two or more digital tracks has lead to an explosion of mashup songs and videos on YouTube.

Many online commentators say only that mashups fall into a “gray area” of copyright law.

However, the 1994 landmark US Supreme Court case, Campbell v. Acuff-Rose Music, provides a fairly clear roadmap to evaluate 3 of the 4 factors for deciding whether music mashups and other compilations are “fair use” under copyright law.

In Acuff-Rose Music, the rap group 2 Live Crew had based a song on Roy Orbison’s 1964 hit song, “Oh, Pretty Woman.” The Supreme Court focused largely on the first fair use factor: “the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes.”

Under the “purpose and character of the use” factor, the Supreme Court found 2 Live Crew’s song to be a fair use parody of the Orbison song. The court found the 2 Live Crew song was “clearly intended to ridicule the white-bread original and remind us that sexual congress with nameless streetwalkers is not necessarily the stuff of romance and is not necessarily without its consequences.” The court explained:

For the purpose of copyright law, the nub of the definitions…is the use of some elements of a prior author’s composition to create a new one that, at least in part, comments on that author’s works.

The court thus saw 2 Live Crew’s song as “social commentary” on the lives of nameless streetwalkers; commentary on Orbison’s underlying work that was parody and allowed under copyright law as fair use.

The court then distinguished fair use parody from plain vanilla copying, which the court described as:

Commentary with no critical bearing on the substance or style of the original composition, which the alleged infringer merely used to get attention or to avoid the drudgery in working up something fresh. The claim to fairness in borrowing from another’s work diminishes accordingly (if it does not vanish) and other factors, like the extent of its commerciality loom larger. Parody needs to mimic an original to make its point…

While there is no “bright line test,” it nevertheless seems that music mashups and digital sampling nowadays are typically not social commentary on an author’s work, but rather involve straight-forward, albeit very creative, borrowing of another’s work.

Since the normal case of mashups is a straight-forward borrowing of other music it would seem, under Acuff-Rose Music, that the claim to fairness in borrowing from another’s work diminishes accordingly–if it does not vanish.  Other factors, like the extent of its commerciality, therefore ”loom larger.”

Based on this analysis, typical mashups and digital sampling are probably not protected under the first factor for determining fair use.

We turn to the other 3 factors for fair use as directed by the US Supreme Court, particularly “the extent of its commerciality.”

The second fair use factor, “the nature of the copyrighted work,” “draws on Justice Story’s expression, the ‘value of the materials used.’ This factor calls for recognition that some works are closer to the core of intended copyright protection than others, with the consequence that fair use is more difficult to establish when the former works are copied.” Acuff-Rose Music, 510 US at 586.

In Acuff-Rose Music, the US Supreme Court that the Orbison’s original creative expression falls within the core of the copyright’s protective purposes.” Indeed, the Copyright Act §102 states:

Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories: … (2) musical works, including any accompanying words; … (6) motion pictures and other audiovisual works; (7) sound recordings.

Undeniably, songs created by musicians are copyright protected as original creative expression that falls within the core of the copyright’s protective purposes. It seems difficult for mashup and digital sampling artists to advance any meaningful argument to the contrary. The second fair use factor probably then favors artists whose works are “borrowed” in any case against a mashup artist, at least insofar as parody is not involved.

The third fair use factor is, “in Justice Story’s words, whether the quantity and value of the materials used” are reasonable in relation to the purpose of the copying. In reviewing the quantity and value of the Orbison song used by 2 Live Crew, the Supreme Court in Acuff-Rose Music found a repetition of the bass rift lifted from Pretty Woman and used by 2 Live Crew. However, the court expressed no opinion whether the bass rift was excessive copying.

In the mashup and digital sampling world, the musical art involved is re-combining several underlying songs into one new song. Typically a substantial portion of the underlying musical work is imported and re-combined with other musical works. A fascinating dynamic of this process is that the more different songs that are used in the mashup, the proportionally less quantity any single song involves.

By comparison, in Acuff-Rose Music, 2 Live crew’s song copied the original song’s first line, “but then quickly degenerated into a play on words, substituting predictable lyrics with shocking ones.”

However, unlike the case of 2 Live Crew, virtually all of a mashup artist’s work involves the work of other people—there is virtually nothing original except the way the music is compiled. Therefore, the third fair use factor would also seem to favor artists whose works are used in any case against a mashup artist.

The fourth fair use factor is “the effect of the use upon the potential market for, or value of, the copyrighted work.” Courts must consider not only the extent of market harm caused by the particular actions of the alleged infringer, but also “whether unrestricted and widespread conduct of the sort engaged in by the defendant would result in a substantially adverse impact on the potential market for the original.” Nimmer on Copyrights § 13.5[A][4], p.13-102.61.

In Acuff-Rose Music, the Supreme Court noted that a “presumption” of market harm will only apply in a case of verbatim copying of the original work in its entirety for commercial purposes, such as in Sony Corp. v. Universal City Studios. The court found that the 2 Live Crew song was not a case of verbatim copying; the court therefore remanded the case for a market analysis of the fourth fair use factor.  (The case thereafter settled and market analysis was never completed.)

If a mashup is found to be verbatim copying, the presumption of market harm will apply.  See, e.g., Leadsinger v. Bmg Music (karaoke music was not fair use).  If a mashup is found not to be verbatim copying, there will be no presumption of market harm, and the “market harm” analysis of the fourth fair use factor will come into play.

In a mashup case, the extent of a mashup’s commerciality undoubtedly varies from case to case.

For example, Wikipedia notes that Girl talk has produced 4 LPson the record label Illegal Art, and EPs on 333 and 12 Apostles. To casual observation, this looks like material commercial activity. Undoubtedly many other mashups fall into a category of hobbyist activity with little commercial focus.

An important question in each case, however, is not just the market for mashup music, but also “whether unrestricted and widespread conduct of the sort engaged in by the [mashup artist] would result in a substantially adverse impact on the potential market for the original.  Even non-commercial mashup activity might, in some cases, adversely impact the potential market for the original.

Summary

Unquestionably, mashup and digital sampling music compilations require significant creative talent. However what is the nature of the talent involved? It seems that the talent is in compilation. The mashup artist has a creative skill to compile underlying works in a new and original way.

In this regard, mashup music is a derivative work based on two or more underlying copyrighted works.   The derivative work cannot be performed without license to the underlying work, unless the fair use defense applies.  However based on the above analysis, the fair use defense does not seem very strong.

Fair use is an affirmative defense that must be raised and proved by the mashup artist against any claim for infringement brought by authors of the underlying works.

1. The fair use defense for mashups, in the typical case, does not seem to involve parody or commentary, and therefore probably would not easily persuade under the first fair use factor: the “purpose and character of the use.”
2. Protection of the underlying musical works is unquestionably a core purpose of copyright law, and therefore a mashup artist probably would face an equally difficult persuasive task under the second factor for fair use.
3. The entirety of a mashup involves the substantive creative work of two or more other people, with no originality except in its compilation. Therefore a mashup artist also faces a difficult challenge of persuasion under the third factor for fair use, evaluation of the quantity and value of the borrowed work.
4. The fourth factor for fair use, the ”market harm” analysis depends first on whether copying is verbatim, in which case market harmis presumed.  Without verbatim copying, the extent of commercialization and impact on the market must be analyzed in each case. 

Based in large part on Campbell v. Acuff-Rose Music, it appears that typical mashup musical works may  not prevail in a “fair use” defense under at least three of the four copyright fair use factors.