Toronto alt-weeklies Eye and Now took sides on Greg Gillis, a.k.a. Girl Talk, in warring cover stories last week. Marc Weisblott’s piece in Eye takes the “anti-” position, expanding on some of the criticism of copyfighters posted here in recent weeks and raising further questions about the implications of the BoingBoing model for the record industry. Evan Davies’ Now piece goes for the “pro,” though copyfight supporters might wish he didn’t, given ridiculous arguments like “what [Gillis is] doing isn’t really any different from what Beethoven did early on after studying Mozart.” While both articles assume that what Gillis is doing amounts to theft, they never actually demonstrate that this assumption is true. Indeed, Gillis contends that his CDs are entirely legal, and should be classified not as copyright infringement but as fair use. But would his fair use defense really stand up in court?
Well, why not ask a lawyer? Unfortunately, in this fraught area, any lawyer you ask seems to have a self-interested answer. Ask Creative Commons co-founder Lawrence Lessig, and he thinks that what Gillis is doing amounts to fair use. Ask entertainment lawyer Barry Slotnik, and guess what? He thinks it doesn’t. But hey, who says we need some fancy lawyer to understand the law? We should be able to figure this out on our own.
As I understand it, fair use is intended to make sure copyright continues to be used for its original purpose of encouraging creativity. More specifically, it provides a way for people to use copyrighted material in the context of criticism or education. That’s not to say that it doesn’t apply to new art, but it does not apply to all art that uses other art. To make the distinction of what is fair use and what is not, you’re supposed to look at four factors: the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the use, and the effect of the use on the market value for the original copyrighted work. Let’s take them one at a time.
Purpose and character. At issue here is whether the use is only intended to supplant the original work, or if it constitutes a new work Supporters of Gillis’ position argue that because his work is “transformative” rather than “derivative,” it does not violate this consideration. But whether the work is transformative is only part of what makes the purpose and character of a use fair. Again, the reason for fair use is to allow for criticism and education. Girl Talk is not educational music, and since music criticism does not generally get a party started, he would probably have to argue that it’s parody, a form that the courts have protected in the past. A use that employs a copyrighted work to comment upon the original work, like 2 Live Crew’s “Pretty Woman,” is fair use. But though Girl Talk may transform the songs he samples, he doesn’t really do so to make a critical observation about the original. Where 2 Live Crew changed Orbison’s lyrics as a way of making fun of the song, it’s hard to argue that all or even most of Girl Talk’s juxtapositions are commenting on the works involved. If we’re being honest, most of them just sound awesome together. That’s great, but it’s not fair use.
Nature of the copyrighted work. This one’s pretty straightforward. Fair use can be argued for works that aren’t creative but are just ideas or information, and fair use can sometimes be argued for private creations that have been made public. As the recordings Gillis is sampling are regular old copyrighted works, he doesn’t qualify under this consideration.
The amount and substantiality of the use. Gillis and his supporters have repeatedly invoked this consideration, too, arguing that the samples he uses are too short to be considered infringement. (From the NYT article: “Because his samples are short, and his music sounds so little like the songs he takes from that it is unlikely to affect their sales, Mr. Gillis contends he should be covered under fair use.”) But this is pretty obviously not true. Some musicians that sample other songs really do use only a small portion of the song, but Gillis lifts entire verses from rap songs, and 33% of a piece of art would almost certainly be considered a “substantial” chunk Even the short riffs that Gillis drops into his songs may not be considered fair use if they are–as they tend to be–the main riff from the track being sampled. The Supreme Court has ruled that, even if the copied portion is small, if the portion is the most important portion in the original work, the person copying is still guilty of infringement. Gillis loses on this one, too.
Effect on the original work’s value. This is the other thing copyfighters like to harp on (see quote above), and yep, Gillis wins on this one. No reasonable person would buy a Girl Talk CD if they really wanted to hear the artists being sampled, and a good case can be made that Gillis has actually increased the market value for some of the works he samples by making them sound fresh.
Those, then, are the four considerations, and Gillis only wins on one of them. Theoretically, it could be enough for him to be in the clear, since the courts only require that these four aspects of a piece of art be taken into consideration, not that one side win on a majority of them. It seems unlikely, though, and leaving aside the subjective issue of his possible success in court, this non-lawyer thinks it’s fair to say that Girl Talk is not fair use.
Now, don’t get me wrong. I really enjoy Girl Talk, and I’ve written previously about how his use of samples allows him to experiment wildly and productively with arrangement without having to worry about making the raw material. He’s been able to demonstrate some very interesting new structural ideas. I do think it’s good and important art on those grounds, and I would very much like him to keep making music.
And just because his music isn’t fair use doesn’t mean that I think the fair-use test is the best way to judge the legality of 21st-century artworks. I’m fully aware of all the absurdities of modern intellectual property law, and I strongly support efforts to change the system of licensing, to clarify and expand the protections for incidental uses, and to overhaul the whole damn thing in general. (This comic is a good primer on all those issues.) For instance, it would be great if recorded media could be licensed in the same statutory manner as compositions, so that a copyright holder isn’t allowed to deny you a license and the federal government sets a low maximum rate that you can be charged. Or whatever! Again, I’m not a lawyer, but there are some very smart people working on this problem. I would very much like for them to change things.
What I don’t like is the way that Girl Talk’s music has become a political statement–because it’s not a very good one. His claims to fair use, as I hope I’ve demonstrated here, are disingenuous. And while it’s true that, as many smart people have pointed out, it would be nearly impossible for Girl Talk to have put his album out legally, that doesn’t mean we should change the law so Greg Gillis can make more money. There have always been practical impediments to art, and there always will be. Indeed, those impediments are arguably good for creators. While copyright law may be absurd, it is demonstrably not preventing Greg Gilis from making his music, or from making money off it. Considering that he’s almost certainly breaking the law, that seems more like an argument against the onerousness of copyright than for it.