I attended a public discussion about music sampling, fair use and transformative use. So I would like to take the opportunity to carry on that discussion on the web.
The U.S. Copyright Office advises, “One of the rights accorded to the owner of copyright is the right to reproduce or to authorize others to reproduce the work in copies or phonorecords.” This right is subject to certain limitations, including the limitation found in Section 107 of the Copyright Law. That Section identifies the doctrine of “fair use.”
Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research. It also sets out four factors to be considered in determining whether or not a particular use is fair:
1) The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
2) The nature of the copyrighted work
3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole
4) The effect of the use upon the potential market for, or value of, the copyrighted work
The Copyright Office warns, “There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.”
“Fair Use” is not a black and white defense to the unauthorized reproduction of a copyrighted work. A court will consider each of the four factors noted above. In looking at the purpose and character of an allegedly infringing use, a court will look to see if it is “transformative.” To be “transformative,” the new work must alter the original with new expression, meaning or message. An example would be if the new work comments on the original, quotes from the original to criticize it or parodies it, that is, comments on the original work for the purpose of mocking it. Parody is different from satire, which uses the original work to comment on a subject that is unrelated to the original and, therefore, the satirist doesn’t need to use the original work to make his point.
Here are some examples of the application of these principles.
1: In Mattel v. Pitt the federal court in Manhattan in 2002 held that taking the head off of a Barbie doll, putting that head on another doll, placing the doll in sexually suggestive positions and calling the resulting creation “Dungeon Doll” was a patently transformative creation that would not affect the demand for Barbie dolls and therefore was fair use.
2. Similarly, that same year, the federal court in San Francisco found a pornographic animated spoof of the Star Wars films to be parody and, thus, fair use.
3. In Newton v. Diamond, that same year, the federal court in L.A. found the use by the Beastie Boys of a three-note sequence with one background note, approximately six second long, to be a de minimis use and, therefore, it wasn’t necessary to consider fair use.
4. On the other hand, that same court in 1999 in a case between the L.A. Times and Free Republic.com, a political commentary web site that provided commentary on media coverage, held that the criticism exception to copyright infringement did not apply where entire news articles were copied.
5. In 1998, that same court denied the fair use defense to the Internet Entertainment Group which sought the right to display short segments or still images from the Pamela Anderson sex tape for the reason that given the nature of the adult entertainment industry on the Internet, such a use is a commercial use that conflicts with the rights of the copyright owners. [Note that it was fair use for Hard Copy to broadcast 27 seconds of the tape. That use was fair use; it was news reporting and transformative; and it was blurred. Moreover, looking at the 4th fair use factor, it was likely to enhance the marketability of the tape.]
6. The Ninth Circuit Court of Appeals in 1997 in a case brought by Dr. Seuss Enterprises held that “The Cat Not In The Hat!…” was an infringement of “The Cat in the Hat” because it was satire and not parody; it was not transformative in that it did not comment on the original work.
