I’ve been asked to comment on Mike Barthel’s excellent “Girl Talk is Not Fair Use,” which appeared on Idolator yesterday. I’m a transactional entertainment lawyer, so I never actually litigate copyrights. Nevertheless, I’m treading in dangerous waters because I often represent copyright owners. I don’t claim to know how federal courts would analyze a hypothetical infringement claim against Girl Talk, a.k.a. Gregg Gillis; historically courts have been inconsistent in applying fair use analysis. I do, however, have some thoughts about how such a case should be decided.
In the interest of full disclosure, I’ll confess that I enjoy Mr. Gillis’ work; he did a legitimate remix of a track by a client of mine that I enjoyed and appreciated. I’m by no means a hardcore fan, but I have sufficient familiarity with his work for purposes of this piece.
Mike set forth the factors that courts consider when analyzing a fair use defense, so I’ll cut to the analysis. In practical terms when considering whether copyright laws overreach or overprotect, I refer back to the policy of copyright, as stated in Article I of the United States Constitution: “[Congress has the power to pass laws] to promote the progress of science and useful Arts.” Copyright, by securing for limited times certain exclusive rights to owners, is intended to encourage creativity. So if copyright stifles creativity, then it is not furthering the underlying policy of copyright. I realize this is an oversimplification, but the policy is very relevant to this analysis.
It’s by no means a coincidence that my interest in hip-hop started to wane around the time of the Grand Upright v. Warner decision (the so-called Biz Markie case in 1991, an opinion that opens with the ominous words “thou shalt not steal”). Grand Upright sent the proverbial shot across the bow to rap producers, and the golden age of the postmodern hip hop sound collage (Paul’s Boutique, Three Feet High and Rising, It Takes a Nation of Millions, etc.), in my opinion, came to a crashing end. Underground hip hop took the biggest hit, as sampling became the domain of the haves (artists and producers with sufficient money and leverage to clear samples) and the have nots were left out in the cold (everyone else). As technology has facilitated postmodern expressions such as the mash-up, artists on the cutting edge have been forced to work underground, ignoring copyright laws.
Regarding the fair use argument in the context of sound collages or mash-ups, analysis should really turn on the purpose and character of the use, specifically whether or not the use is transformative. Mike correctly stated that the nature of the copyrighted work is a non-starter because the copyrighted works are in each case creative expression. I will punt on the third and fourth factors for the moment and get to the transformative use analysis.
The U.S. Supreme Court stated in Acuff Rose that the policy of copyright, stated above, is furthered by transformative works. Whereas fair use analysis often turns on whether the market of the copyrighted work is harmed, when a work is transformative the other factors are given less weight–including whether or not the work is commercial. Although parody has an obvious foothold in the statutory language of criticism and comment, parody is but one example of a transformative work. Under Acuff Rose, the question becomes whether by shedding new light on an earlier work, the artist in essence creates a new work. In the words of the Court, “context is everything.”
I’m not sufficiently familiar with the Girl Talk recordings to know whether Gregg Gillis adds any original sounds (as in sounds created by him) to the works. Courts are more likely to find transformative use if the artist adds a large amount of new material; however, it doesn’t really matter whether the “new material” he brings to any given sample is itself original. Even if the copyrighted track is juxtaposed solely against other copyrighted tracks, so long as the work is presented in a new light so that the commentary becomes creative expression, the resulting work should be considered transformative.
Although the U.S. Court of Appeals for the Sixth Circuit recently established a bright line rule that even a very short sample of a copyrighted sound recording without a license constitutes infringement, the “amount and substantiality” factor should not be dispositive. It is clear that for a transformative work to effectively comment on or criticize an existing work, enough of the work must be presented to make the copyrighted work recognizable to the listener. This is certainly true of Girl Talk: Gillis’ work would be far less clever or interesting if he chopped up the samples so as to make them unrecognizable. Thus, the weight given the amount and substantiality factor really depends upon the analysis of harm to the potential market.
Mike correctly points out that nobody would buy a Girl Talk recording to hear the original works; however, there is a possibility that at least some of the recordings used by Girl Talk (such as long passages from hip-hop recordings) have a potential derivative market in re-contextualized works. Such a market could be adversely affected by Gillis’s works. Nevertheless, in my opinion courts should focus on the extent to which the use is transformative.
It’s a little scary to leave it to the courts to determine anything resembling artistic merit; however, Acuff Rose provides guidance. If the commentary “has no bearing on the substance or style of the original composition, which the alleged infringer merely uses to get attention or to avoid the drudgery in working up something fresh, the claim to fairness…diminishes.” So maybe just sounding awesome together is enough after all.