Was It Fair Use? Kool G Rap & DJ Polo – “Road To The Riches” (prod. by Marley Marl)
Released in 1989 as the title track of the album of the same name, “Road To The Riches,” produced by Marley Marl, features a sample of Billy Joel’s “Stiletto” (1979). Kool G Rap & DJ Polo and Marley Marl were never sued for copyright infringement, and for good reason: “Roads To The Riches” would likely been proven to be fair use.
Kool G Rap & DJ Polo – “Roads to Riches” prod. by Marly Marl
Billy Joel – “Stiletto”
Fair Use Defined: Analysis of the Four Factors of Fair Use
The fair use statute in the Copyright Act of 1976 lists four pertinent factors to be considered when determining whether a secondary use is fair use. These factors are not to be a tally of the majority; it’s not as simple as three out of four of the factors automatically means fair use. Moreover, one out of three factors doesn’t automatically mean that a secondary use wasn’t fair use. (If just one factor is satisfied, particularly the factor dealing with transformation, a secondary use may still be considered fair use.) Instead, the statutory factors should be a guide that direct courts to examine the issue from every relative angle. “Each factor directs attention to a different facet of the problem. The factors do not represent a score card that promises victory to the winner of the majority. Rather, they direct courts to examine the issue from every pertinent corner and to ask in each case whether, and how powerfully, a finding of fair use would serve or dis-serve the objectives of copyright.”162
The First Factor: “The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes”
This factor considers whether the use serves the purpose and intention of copyright law, which is to promote “the Progress of Science and useful Arts” (Art. I, § 8, cl. 8). Factor one, considered by many to be “the soul of fair use,” considers whether, and to what extent, the secondary use is transformative. If quoted matter is used as raw material, transformed in the creation of new information, new aesthetics, new insights, and new understandings, then it is more likely to past the test; on the other hand, minimal creative transformation will not likely past the test: “The first fair use factor calls for careful evaluation whether the particular quotation is of the transformative type that advances knowledge and the progress of the arts or whether it merely repackages, free riding on another’s creations. If a quotation of a copyrighted matter reveals no transformative purpose, fair use should perhaps be rejected without further inquiry into the other factors.” Transformative uses may include: “criticizing the quoted work, exposing the character of the original author, proving a fact, or summarizing an idea argued in the original in order to defend or rebut it. They also may include parody, symbolism, aesthetic declarations, and innumerable other uses….”163
Factor one also raises the question of whether the use is of a commercial nature or for nonprofit educational purposes. Although it has been widely held that nonprofit educational purposes tip the scale in the direction of a fair use, that a use is of a commercial purpose does not necessarily exclude it from being fair. Conversely, every use that is of a nonprofit educational purpose is not automatically fair. What is more important is whether the use of a copyrighted work fulfills the purpose and intention of copyright law. Thus, the first factor signals that a fair use of a copyrighted work is one that can show that it advances knowledge or the useful arts through transformation, i.e. the addition of something new and different. Therefore, the more transformative the use, the more likely it is fair.
The Second Factor: “The nature of the copyrighted work”
This factor looks at the type of material that copyright was designed to stimulate, i.e. whether the copyrighted work is fictional or non-fictional (facts). Creative works receive more protection than factual ones; think of a novel and telephone book. Therefore, the more creative a copyrighted work is, the more the other factors must favor the secondary user in order to earn a fair use finding. One final important note about the factor two: while the implication may be that certain types of copyrighted material are more amenable to fair use than others, the scope of fair use is not narrowed by the nature of a copyrighted work.
The Third Factor: “The amount and substantiality of the portion used in relation to the copyrighted work as a whole”
This factor considers the amount of the copyrighted work that’s been used in the new work. Generally, a small amount tips the scale towards a fair use. In Ringgold v. Black Entertainment Television, Inc. (1997), the 2nd Circuit maintained that “the third fair use factor concerns a quantitative continuum. Like all the fair use factors, it has no precise threshold below which the factor is accorded decisive significance. If the amount copied is very slight in relation to the work as a whole, the third factor might strongly favor the alleged infringer.”164 Judge Leval offers additional clarification:
“The third statutory factor instructs us to assess ‘the amount and substantiality of the portion used in relation to the copyrighted work as a whole.’ In general, the larger the volume (or the greater the importance) of what is taken, the greater the affront to the interests of the copyright owner, and the less likely that a taking will qualify as fair use.
This factor has further significance in its bearing on two other factors. It plays a role in consideration of justification under the first factor (the purpose and character of the secondary use); and it can assist in the assessment of the likely impact on the market for the copyrighted work under the fourth factor (the effect on the market). As to the first factor, an important inquiry is whether the selection and quantity of the material taken are reasonable in relation to the purported justification…. The more taken the greater the likely impact on the copyright holder’s market, and the more the factor favors the copyright holder. Too mechanical a rule, however, can be dangerously misleading. One can imagine secondary works that quote 100% of the copyrighted work without affecting market potential.” [emphasis mine]165
But even a small amount may not meet the fair threshold if it can be considered the heart of the copyrighted work. Further, the third factor considers how substantial is the portion of the copyrighted work that’s been used. The less substantial, or the less used in relation to the whole, the more likely the use will be considered fair under this factor.
Just as with any other copyrighted material, in the area of digital sampling, the question that would be raised is how much was sampled, both quantitatively and qualitatively. While extensive takings may impinge on creative incentives, the determination of an extensive — i.e. substantial — taking is based on the actual amount of appropriation, NOT how the appropriation is used.
For instance, most beatmakers use drum sounds that they have sampled from sound recordings. In this way, beatmakers typically use small takings as raw materials, transformed in the creation of a new aesthetic. Certainly, a single drum hit is de minimis. Thus, the copying in this instance is NOT extensive because it is looped.
Taking a de minimis fragment, looping it, then repeating it throughout a song is not what is meant by extensive/substantial. If one takes a word, phrase, or line from a poem or other literary work and repeats the quoted matter — for commentary, proving a fact, exposing the character of the original author, summarizing a point, making an aesthetic declaration, etc. — throughout a new work, this is not an examination of excessive taking. Likewise, the insistence that the looping (repeating) of a de mininmis sample is excessive is not only flawed legal reasoning, it’s a grave misreading of the third statutory factor.
The Fourth Factor: “The effect of the use upon the potential market for or value of the copyrighted work”
This factor considers the likely effect upon the market of the appropriated work. It weighs the effect that the new work has on the copyright owner’s right to exploit their own work. In other words, it considers whether harm would be done to the potential market of the original. “A secondary use that interferes excessively with an author’s incentives subverts the aims of copyright.” However, a secondary use that does not excessively interfere with an author’s incentives does not subvert the aims of copyright, rather it achieves the very objective of copyright. Further, “The fourth factor disfavors a finding of fair use only when the market is impaired because the quoted material serves the consumer as a substitute, or in Story’s words, ‘supersede[s] the use of the original.’”166
This is particularly important to understand, as samples do not inherently supersede the original. For instance, if someone samples a drum hit, horn or bass-stab, and/or brief phrase snippet from a song like “Midnight Train to Georgia” (Gladys Knight & The Pips), then transforms it into an entirely new aesthetic by adding new drum sounds, a new drum framework, and vocals about a picnic in the summer, no person would reasonably believe that the new creation is the substitute for the song it took minor samples from.
In copyright infringement cases, courts often ask, in addition to the question whether the allegedly infringing use acts as a direct market substitute for the work it appropriated, whether potential market harm might exist beyond that of direct substitution. When it comes to sampling, some commentators believe that this points to the potential existence of a licensing market for all samples. But even this is mistaken. Every sample does not inherently require a license; any suggestion otherwise is prior restraint.
Hence, a “market” for samples that may be de minimis or fair use is no market at all. So the notion that sampling inherently interferes substantially with a copyright holder’s market for licensing samples is illogical for a number of reasons. Again, all samples do not require licensing. Second, all secondary uses of samples are not locked into one type of transformation. Third, even if the notion of a market for samples was valid, not every type of market impairment goes against fair use. Fourth, “by definition every fair use involves some loss of royalty revenue because the secondary user has not paid royalties. Therefore, if an insubstantial loss of revenue turned the fourth factor in favor of the copyright holder, this factor would never weigh in favor of the secondary user. And if we then gave serious deference to the proposition that it is ‘undoubtedly the single most important element of fair use,’ fair use would become defunct. The market impairment should not turn the fourth factor unless it is reasonably substantial….Not every type of market impairment opposes fair use.”167 Fifth, the assumption of automatic, irreparable market harm when samples are involved is greatly mistaken because hip hop/rap has proven that the transformation of a given sample is limitless. Moreover, a copyright owner does not lose his right to license samples of his work simply because a secondary use of his work has already been made, especially if the secondary use was di minimis or fair use.
Finally, the aforementioned notion of a potential existence of a licensing market — for samples that might likely require a license, i.e. samples that take substantially from a recording — must also be qualified. For starters, the sample licensing market in the music industry has been built largely off of sampling activity that no doubt included many de minimis and fair use appropriations. Further, the sample clearance system (which I discuss in detail in chapter 11) is so thoroughly flawed that it raises serious questions about the very existence of the music industry’s current sample licensing scheme.
161 For a good example of a court’s description of the de minimis doctrine, see Ringgold v. Black Entertainment Television, Inc., 126 F. 3d 70 – Court of Appeals, 2nd Circuit 1997.
162 Leval, 1110, 1111.
163 Ibid., 1111.
164 Ringgold v. Black Entertainment Television, Inc., 126 F. 3d 70 – Court of Appeals,2nd Circuit 1997 (emphasis mine).
165 Leval, 1122, 1123.
166 Leval, 1124 [emphasis mine].
167 Leval, 1124, 1125 [emphasis mine].
Excerpt from The Art o Sampling: The Sampling Tradition of Hip Hop/Rap Music and Copyright Law, 2nd Edition by Amir Said (Superchamp Books, 2015), pp. 291-97. The all new Third Edition of The Art of Sampling includes extensively expanded chapters on fair use.
Applying the Thresholds of Fair Use to “Road To The Riches”
To make “Roads to Riches,” a creative commercial work, Marley Marl sampled two small snippets of “Stiletto.” Snippet one appears from 0:14-:30; snippet two appears 0:31 – 0:34. “Stiletto clocks at 4:43, which is worth noting because Marley Marl’s borrowing represents a very small taking and it’s not the heart of the song; this satisfies the third factor of fair use. Further, Marley Marl transforms the sample, making an entirely new song with additional elements, including a rap by Kool G Rap, transforming the sample and creating an entirely new song with a new meaning; this satisfies the first factor — transformation — of the borrowed element. Next, “Road to Riches” does not compete with “Stiletto, i.e. it does not cause market harm to Billy Joel/copyright holders of “Stiletto” as no consumer would confuse “Roads to Riches” for “Stiletto” or substitute it for “Stiletto;” this satisfies the fourth factor of fair use. In other words, Marley Marl made fair use of “Stiletto.”
