The Function of Fair Use: An Excerpt from the Book The Art of Sampling, 3rd Edition
The following is an excerpt from my forthcoming book The Art of Sampling, 3rd Edition, which I’m currently running a Kickstarter campaign for. If after reading you have learned anything from this article and you would like to learn much more, please take a moment to pledge your support today and share this campaign with your network. Thank you!
Copyright law recognizes that creative borrowing is always at work and unavoidable, and that it thrives necessarily on the widespread use of on unprotected elements of preexisting works. Because of “functional constraints,” like popular rhythm and melody structures and the various types of interrelated music-making processes, music is especially prone to “tendencies and commonalities”.[1]
In Chapter 11, we learned that shortly after the adoption of the United States Constitution, Congress enacted the Copyright Act of 1790, first federal copyright statute. The purpose of the Copyright Act was “to promote the Progress of Science and useful Arts, by securing for limited to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” The legislation granted “authors” (creatives) a limited monopoly over the works that they created and the legal means by which they could secure rewards for their works. This means that authors received exclusive rights to exploit their works as well as the right to guard against unlawful appropriation of those works by others. “In order to promote the purpose and goals of copyright, Congress imposed significant limitations on authors’ exclusive right to the disposition of their works. Specifically, this limitation allows for certain limited uses of copyrighted material without the permission of right holder. Thus, where the material copied by others is lawful, there can be no liability.
There are two doctrines that generally cover this area of non-actionable copying: de miminis and fair use. This Chapter examines fair use, the policy underlying it, and how it is resolved — when conflicts arise — by the courts and not Congress. I begin with a description of what is lawful appropriation.
Lawful Appropriation: When It’s Not Copyright Infringement
De Minimis and Fair Use: Limitation on the Exclusive Rights of Copyright Owners and Understanding the Nature and Necessity of Fair Use
The old adage that there’s nothing new under the sun is correct. All art, all intellectual activity is, in part, derivative. Since the creation of things, people have borrowed and built upon ideas. This is a permanent construct of society. “There is no such thing as a wholly original thought or invention. Each advance stands on building blocks fashioned by prior thinkers.” Further, absolute ownership of any work is not what copyright law prescribes; and excessively broad protection of a copyright shifts the objectives of copyright law. “Notwithstanding the need for monopoly protection of intellectual creators to stimulate creativity and authorship, excessively broad protection would stifle, rather than advance, the objective” of copyright: to promote the Progress of Science and useful Arts. “Monopoly protection of intellectual property that impeded referential analysis and the development of new ideas out of old would strangle the creative process.[2]
The fair use doctrine is especially important to sample-based beatmakers for two reasons. First, because most sample-based music is largely dependent upon the use of pre-existing sound recordings as raw material, fair use gives sample-based beatmakers a core set of principles to consider when determining whether the use of a copyrighted sound recording is fair use or not. Second, fair use allows sample-based beatmakers a path to creativity that does not require permission from a copyright owner or a clearance fee. Sampling that is fair use, i.e. lawful copying, prevents sample-based beatmakers from ever having to deal with the dreaded sample clearance system. Thus, fair use serves as a legislative safe harbor for the kind of art that sample-based recording artists create. In order to take full advantage of the protection that fair use affords, as well as improve your level of creativity in the art of sampling, here’s what you need to know about fair use and how it can work for you.
What is De Minimis?
De minimis — which is short for the Latin Maxim de minimis non curat lex: “the law cares not for small things” or “the law does not concern itself with trifles” — is a legal doctrine that refers to trivial matters that are not worthy of judicial scrutiny. In On Davis v. Gap, Inc. (hereinafter On Davis), the United States Court of Appeals for the Second Circuit points out that “the de minimis doctrine essentially provides that where unauthorized copying is sufficiently trivial, ‘the law will not impose legal consequences.’”[3] Unlike fair use, the de minimis doctrine is not limited to copyright law; it applies in all civil cases. In On Davis the Second Circuit noted that “The de minimis doctrine is rarely discussed in copyright opinions because suits are rarely brought over trivial instances of copying. Nonetheless, it is an important aspect of the law of copyright.” In further describing the frequency in everyday life and the ordinary, practical nature of de minimis, the Second Circuit added that:
Trivial copying is a significant part of modern everyday life.
Most honest citizens in the modern world frequently engage, without hesitation, in trivial copying that, but for the de minimis doctrine, would technically constitute a violation of law. We do not hesitate to make a photocopy of a letter from a friend to show to another friend, or of a favorite cartoon to post on the refrigerator. Parents in Central Park photograph their children perched on Jose de Creeft’s Alice in Wonderland sculpture. We record television programs aired while we are out, so as to watch them at a more convenient hour. 8 Waiters at a restaurant sing “Happy Birthday” at a patron’s table. When we do such things, it is not that we are breaking the law but unlikely to be sued given the high cost of litigation. Because of the de minimis doctrine, in trivial instances of copying, we are in fact not breaking the law. If a copyright owner were to sue the makers of trivial copies, judgment would be for the defendants. The case would be dismissed because trivial copying is not an infringement. [emphasis mine][4]
As a broad principle well recognized in common law, de minimis is understood to mean usage that does not amount to actionable (unlawful) copying under the law. “Under the de minimis doctrine, some things, while technically violations of the law, are considered too petty to waste the time and resources of the court.” In the context of a copyright infringement lawsuit, if the allegedly infringing work makes such a quantitatively insubstantial use of the copyrighted work as to fall below the threshold required for actionable copying, courts reject the claim on that basis and find no infringement. So whether the allegedly infringing use is de minimis is also a consideration of the substantial similarity analysis. Thus, in a sampling context, the de minimis threshold in copyright law is the level below which courts deem the amount a musician appropriates a copyrighted work too small to be considered copyright infringement. Think of something like a sample of a kick drum, a bass-stab, or two short notes from a long melodic phrase.
De minimis is particularly important to understand prior to the scope of fair use, because if a sample is to small — i.e. below the de minimis threshold — fair use doesn’t even come into the picture. “The fair use defense involves a careful examination of many factors, often confronting courts with a perplexing task. If the allegedly infringing work makes such a quantitatively insubstantial use of the copyrighted work as to fall below the threshold required for actionable copying, it makes more sense to reject the claim on that basis and find no infringement, rather than undertake an elaborate fair use analysis in order to uphold a defense.” In this way, the de minimis doctrine recognizes that there are instances in which a sample is too small, too trivial to be considered copyright infringement. Although sampling case law has addressed this issue, most notably in Newton v. Diamond, there is no arbitrary de minimis threshold. In fact, what occured in Newton v. Diamond, according to Dr. Lawrence Ferrera, is very insightful:
I was the musicologist for the defendant, The Beastie Boys and all of the co-defendants. And in that case, James Newton, the magnificent jazz flute player, at the time a professor at the University of California, in music. James Newton had sold the sound recording rights to his song the 1978 song “Choir”. He sold the rights to the sound recording, but he held on to the publishing rights to the composition. The Beastie Boys took the first 5 and half seconds, which is three notes, which is essentially James Newton in a falsetto singing these notes [begins to play the notes, then sings the notes].
And simultaneous with singing those three notes, he over blows the flute, same time, and he creates a multi-phonic, which is [he plays], which is just literally a multi-phonic of sounds. And so, essentially, it was three notes, and he actually even had a score, that actually accompanied that in his 1978 filing for copyright. The Beastie Boys duly licensed from the record company, that Newton sold his rights to (I think they were in Germany), the use of that sound recording sample. But they didn’t take the license on the three notes. He [Newton] sued. I was the musicologist.
And as I presented, I said, “Those three notes, first of all, they’re de minimis. Because you only hear it once in this 4-and-a-half-miute work. You never hear it again. And the de minimis test or analysis is, what is the substantiality of the portion at issue within the context of the whole song, not the new song, the original song. That The Beastie Boys looped that [sample], something like 47 times, in their song “Pass the Mic” is not the de minimis test. It’s how substantial was that three notes in the original Newton work. And the point was that it was de minimis.
It was minimal…. So I established that, first of all, there’s nothing new about what he did. Moreover, those three notes, I gave oodles of examples in major works where that was actually a motif. And so I had some really great prior, what is called prior art, as well as you know, everything else. And Judge Menella [SP], of the district court in Los Angeles, on the basis on everything, not just what I wrote but what the defendants proffered, dismissed the case. It was appealed. The 9th Circuit upheld, but with one dissent. And then it went to the unbunk (SP). I don’t know how many judges looked at it, I think nine or ten or whatever in the 9th Circuit, and they unanimously upheld on the de minimis.
So, there is a case where if there’s three notes in the composition — So I’ve done the analysis and say, “Hey, you know what, yeah, maybe they did copy those three notes.” [laughs] The point is, it doesn’t matter. Because it’s de minimis. And in the case of Newton, they did copy it. Because they sampled it. And they licensed the sample. So there’s no question that they copied it. But the copying, the copied expression was not sufficiently substantial for there to be, and this is important, musicological support for a claim of copyright infringement. [emphasis mine][5]
Newton v. Diamond aside, the circumstances of each sample is different. Therefore, in the courts, de minimis must be determined on a case by case basis. For this reason, the notion of a default or precise de minimis sample line of one, two, or three notes, or one, two, or three seconds is inappropriate. But if there ever was to be any “bright line” threshold for what constitutes a de minimis sample, this determination should never be made by record companies, publishers, music lawyers, and the courts alone, but rather a committee that also prominently includes sample-based musicians as well.
Since de minimis is a less complicated concept to comprehend, I will leave the description of it where it is, and make what final point: Any kind of borrowing is subject to a de minimis threshold for infringement — whether a sound recording or any other kind of work.
Now, a more detailed discussion of fair use is required, as it is an oft misunderstood concept that contains lots of gray area. Thus, what follows is a deeper examination of fair use.
What is Fair Use?
Before turning to an extensive examination of the four factors of fair use, it’s necessary to spend substantial time discussing what fair use is, its background, and the important role that in plays in copyright law. In 1741, 30 years after the creation of copyright by the Statute of Anne of 1790 in England,the concept of “fair abridgement,” now known as “fair use,” was introduced in Gyles v. Wilcox.[6] At that time, the courts in England recognized that “certain instances of unauthorized reproduction of copyrighted material” would not infringe a copyright owner’s rights. In the United States, the fair use doctrine was adopted, first formally introduced by Justice Joseph Story in 1841 in Folsom v. Marsh[7], then later incorporated into the Copyright Act of 1976, which states that “the fair use of a copyrighted work . . . is not an infringement of copyright.”[8]
Law professor Barton Beebe, author of An Empirical Study of U.S. Copyright Fair Use Opinions, 1978-2005, the first empirical study of U.S. copyright fair use opinions, described fair use as the “most enigmatic doctrine in U.S. copyright law and by far the most important;” and he noted that without it, “much of our economic and communicative action would constitute copyright infringement.”[9] What Beebe is speaking to here is the functions, roles, and objectives of fair use.
The Functions and Roles of Fair Use
There are 10 separate but interrelated functions or roles of fair use, each vital but some more structurally important than the other. As one of the exceptions that limit the rights of copyright holders, we can say that the first function of fair use is to preserve the public’s right to use, in those limited situations broadly prescribed by copyright law, copyrighted works without clearance or the need of a copyright holder’s permission. Put another way, this function of fair use is to uphold the exceptions to a copyright holders’ exclusive monopoly. The second function of fair use, what Matthew Sag has called the “true” function of fair use, is to “enable copyright law to evolve in response to new challenges without necessitating legislative intervention.” Like this, fair use is “meant to be used as a flexible standard through which the judiciary can determine the application of copyright in response to social and technological changes.”[10]
What follows is a more detailed description of the functions and roles of fair use.
Fair Use Protects (and Enables) Secondary Creativity and Use
The Supreme Court has noted what all of us already know: There’s nothing new under the sun. Which is to say, every new thing has been borrowed, to some degree, from other existing (old) things. Wholly original thought or invention does not exist; each advance stands on building blocks made by prior thinkers and creators.[11] This shouldn’t be a controversial concept. But alas, when it comes to copyright, views about the vital role that borrowing plays in creativity, the process of invention, and all intellectual activity are skewed; and often views are formed depending on which side of the stake you sit on. Secondary creativity is a reality of all intellectual activity; the public relies on this fact. Therefore, society can’t afford for the pathway to secondary creativity to be blocked. In terms of copyright, this means that too much monopoly protection stifles creativity. As Judge Leval noted, “[m]onopoly protection of intellectual property that impeded referential analysis and the development of new ideas out of old would strangle the creative process.”[12]
Further to this, fair use helps make clear that quoting, in some circumstances, is not “stealing” but a necessary part of the creative process. As Judge Leval has noted, “[q]uotation can be vital to the fulfillment of the public-enriching goals of copyright law.”[13] Looking specifically at writers, for instance, we can see that, “[i]n private letters and notebooks, they practice the writer’s craft, trying out ideas, images, metaphors, cadences, which may eventually be incorporated into published work…. the copyright objectives include a reasonable solicitude for the ability of the author to practice the craft in the privacy of the laboratory.”[14]
Thus, practicing or working out your ideas would be copyright infringement if were not for fair use; recording other people’s songs, for example, to practice with and develop your own skill as a musician, would be copyright infringement were it not for fair use. Fair use protects secondary use in the general sense of everyday society. Fair use allows others to copy and use part (or, in some circumstances, all) of a copyrighted work without authorization of its copyright owner. “Consumers and creators rely on access to existing works, not just in artistic fields but in countless areas of social, political, cultural and economic activity. Most of the fabric of our cultural and intellectual lives is owned in some fashion by someone else.”[15] Thus, fair use protects (and enables) secondary creativity and use.
Fair Use Ensures That Copyright Protection Is Not Excessively Broad
While copyright owners hold an exclusive monopoly over their works, copyright law maintains that this exclusive monopoly is limited. This limitation manifests in two critical ways. First, authors (creators) are granted exclusive control over their works for a limited duration. Second, this control (limited monopoly) is not absolute. Society, which benefits from the “intellectual and practical enrichment that results from creative endeavors,”[16] has access to copyrighted works, in certain circumstances, free of charge so to speak. In other words, copyright allows for, even promotes, some degree of borrowing of copyright works, without either permission from or payment to the copyright holder.
Without safe harbors like de minimis and fair use, copyright protection would be excessively broad, and the objectives of copyright law — to “promote the progress of the Sciences and useful Arts;” to secure for society the intellectual and practical enrichment that comes from creative endeavors — would be stifled. The fair-use doctrine “‘permits courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity that the law is designed to foster.”[17] In Campbell v. Acuff-Rose Music, The Supreme Court noted that “the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works. Such works thus lie at the heart of the fair use doctrine’s guarantee of breathing space within the confines of copyright…”[18]
Fair Use Serves as a Guardian of Free Speech
Another critical function of fair use is free speech. Mathew D. Bunker has observed that in Eldred v. Ashcroft, the court “alluded to fair use, as well as the idea–expression and fact–expression dichotomies, in pointing out that ‘copyright’s built-in free speech safeguards are generally adequate”when copyright interests conflict with First Amendment values.”[19] In other words, fair use “has a role to play in maintaining a constitutionally acceptable balance between copyright and freedom of speech.” This function of fair use is so vital that the Supreme court has consistently held that “copyright does not present a danger to freedom of speech because of the idea expression distinction and the fair use doctrine, copyright’s ‘own speech-protective purposes and safeguards.’”[20]
Also, when considering fair use as a guardian of free speech, we recognize that the exclusive rights of copyright owners are not absolute; if they were, their exclusive rights would be infringed by any number of harmless private activities, like: taking screen shots of an article (copying); time-shifting a television program (copying and editing); recording a song into Pro Tools, converting it to an MP3 file, and transferring it to your smart phone or other portable device (copying); even singing Queen’s “We Will Rock You” — an official sports anthem — at a stadium or sports bar open to the public. None of these examples constitute copyright infringement because fair use protects these private-use examples as freedom of speech.
Thus, the application of the exclusive rights of copyright owners varies according to context. This was made clear in Chapman v. Miraj (2020). In this case, brought by Tracy Chapman against Niki Minaj, Minaj argued that her sampling and use of Chapman’s song “Baby Can I Hold You” constituted fair use. The District court of the Central District of California agreed, and found that Niki Minaj’s sampling and use of Tracy Chapman’s did amount to fair use, and the court granted Minaj partial summary judgment:
In determining whether a use is fair use, courts consider four factors…
These factors should not be treated in isolation, and instead must be explored and weighed in light of copyright’s purpose.
The Supreme Court has found that transformative uses “lie at the heart of the fair use doctrine’s guarantee of breathing space within the confines of copyright” because such works generally further “the goal of copyright, to promote science and the arts[.]”
Courts should also “consider the public benefit resulting from a particular use notwithstanding the fact that the alleged infringer may gain commercially.” The public benefit need not be direct or tangible, but may arise because the challenged use serves a public interest. (Id. at 1523). As
explained above, artists usually experiment with works before seeking licenses from rights holders and rights holders typically ask to see a proposed work before approving a license. A ruling uprooting these common practices would limit creativity and stifle innovation within the music industry. This is contrary to Copyright Law’s primary goal of promoting the arts for the public good. This factor thus favors a finding of fair use.
Maraj’s creation of the new work for the purpose of artistic experimentation and to seek license approval from the copyright holder thus did not infringe Chapman’s right to create derivative works.
…this Court finds that any liability for Maraj’s creation of the song is barred by the fair use
doctrine. The Court therefore DENIES Chapman’s Motion for Partial Summary Judgment and GRANTS Maraj’s Motion for Partial Summary Judgment.” [emphasis mine][21]
Whether you’re a superstar like Niki Minaj or not, fair use provides assurance for everyday free-speech uses. Another common example such uses is in the area of research. As a library technician (and former page) at the New York Public library, I watched countless researchers make and receive photocopies of thousands of pages of books. They did not seek permission of the copyright holders of those books; that would have been absurd. Fair use assures members of the public that this kind of access to copyrighted works are protected. If Congress had not permitted such breathing room, i.e. “made no allowance for the private use of copyrighted material,” via statutory language in the Copyright Act of 1976, “the resulting law would have been extraordinarily oppressive.”[22]
Thus, Congress left such language out because fair use functions as a sort of catch-all for the limitations on the exclusive rights of copyright holders. And while the statutory language of the Copyright Act does make some specific exemptions, i.e. specify some activities as non-infringing, it is understood that the list of non-infringing activities is non-exhaustive. As such, fair use covers everything else, i.e. the exemptions that Congress did not specify. And if ever there is conflict — a question as whether a specific use is exempt or not — well, Congress intentionally left that for the courts to sort out. In some contexts, this advantages copyright holders.
In the context of sampling, this actually advantages sample-based musicians despite what conventional wisdom says. Take for instance Girl Talk. He sampled, openly shared his source material, and announced loudly that he believed that what he was doing was fair use. So why exactly was he not sued en masse? Why didn’t the major record labels go after him and have the question answered in court? The simple answer is: They didn’t want to take chance of getting an answer that they did not want, and they did not what bring attention to fair use in a big way.
Fair Use Ensures That There Are No Bright-Line Rules for Borrowing
(Standards vs. Bright-Line Rules: On the Clarity and Broadness of Fair Use)
Some commentators have noted that Section 107 is vague. Perhaps in some ways this may be true, but if you replace the word vague with the word broad, things become more clear. Section 107 of the Copyright Act states that “the fair use of a copyrighted work is not an infringement of copyright.” This part is not vague, nor is it broad; on the contrary, it’s a firm statement of one of the Copyright Act’s inherent limitations on the exclusive rights of copyright owners. What could be described as broad, however, is the types of uses that may meet the fair use threshold. And while Congress mentioned some specific types of uses that may meet the fair use threshold, Congress also intentionally mentioned, and left open, specific standards and guides for determining fair use, not bright-line rules. In fact, Section 107 provides a non-exhaustive list of examples of fair use, including: criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research) and four non-exclusive factors for courts to consider in determining fair use. Again, the proper word here is “broad” because the four factors serve as a flexible standard, not a vague principle, which courts use in determining fair use.
Fair Use as De Facto Policy Maker
(Policy Making Performed by the Courts and Judges)
One constant of the development of copyright law over time, as proven by the implementation of the Copyright Act of 1976, is that the “rights of copyright owners adapt to technological challenges, whereas users’ rights,” the rights of the public, “are diminished or marginalized.”[ 23] As new technologies emerge, the rights of copyright owners expand presumptively; the presumption being that questions of protection raised by emergent technologies default in favor of copyright owners. Within this paradigm, one function of fair use is to preserve users’ rights, the public’s right, in the face of technological advancement. Normally, this would be the role of Congress, but it’s neither possible or practical for Congress to amend copyright law every time a new technology emerges. In effect, the way copyright law is designed and structured, and in particular fair use, Congress has said, With regards to questions pertaining to rights associated with new technologies, whatever’s not clear, the courts will sort it out.
Thus, despite the fact that the courts are not supposed make policy — that’s Congress’ job — fair use is used by the courts for de facto policy making. Matthew Sag has observed that “[t]he structure of the Copyright Act and the history of copyright law indicate that the true function of fair use is to enable copyright law to evolve in response to new challenges without necessitating legislative intervention.” Further to this, as I mentioned previously, fair use is a flexible standard “through which the judiciary can determine the application of copyright in response to social and technological changes — fair use was never intended to preserve the status quo in the face of change.”[24]
Congress intentionally used fair use to transfer “significant policy making responsibility to the judiciary, allowing judges to develop the law in response to external changes.” And the reason was just as much about fairness as it was about the cost of doing otherwise. De facto policy making by judges in this way is simply more cost effective — and presumably more fair — than Congress performing “specific statutory exemptions, compulsory licenses” or drafting “concrete statement of rights” every time a new technology is created, or every time a new conflict emerges from existing technology. For instance, In 1971, when sound recordings were incorporated into the Copyright Act, Congress could not have realized that sampling would become an art form and popular music-making process. But they did recognized that advancements in technology make such activities possible, and that therefore copyright law must be flexible enough to absorb those advancement in technology as well as the cultural and social changes that technology inevitably yields. So it “is not a coincidence that Congress chose to codify fair use as a standard at the same time that it radically expanded copyright rights in the 1976 Act.”[25]
There’s also the question of practicality:
“This structural role of fair use is significant because of the perceived inability of the legislative process to keep pace with the demands of rapid technological and social changes. A flexible, forward-looking set of owner’s rights, combined with a flexible fair use doctrine, allows Congress to legislate less frequently and entrust significant policy responsibility to the judiciary.” [26]
One problem, however, with Congress transferring significant policy making responsibility to the courts is that it typically expands the power of copyright owners. Generally, the public, which is already overwhelmed by the expanded rights of copyright owners, is not well informed about copyright law. This allows copyright owners, who were empowered by the expansive language of the Copyright Act of 1976, to take advantage of the situation and proceed as if the exclusive rights in their copyright works are absolute. As such, copyright owners often engage in what amounts to publicity campaigns that are designed to make the public believe that their exclusive rights are absolute. In other words, the worst offenders of this absolutism propaganda — many of which are music rights owners — would like the public to believe that there is no access of any kind to copyrighted works without a license or permission from copyright owners. This is exactly what we see with the perception of sample clearance: the idea that all samples must be cleared and that any sample that is not cleared is presumptively copyright infringement (illegal).
Fair Use Plays a Role in Covering New Technologies and Old Ones All at Once
Amanda Webber has maintained that “the Copyright Act nor the Sound Recording Act was written with digital sampling in mind.”[27] But this statement is misleading and it misses the point entirely. The Copyright Act nor the Sound Recording Act was also not written with Tik Tok, Twitter, YouTube, and other social media platforms in mind. The Copyright Act was not written with any one specific technology, art form, or service in mind. Instead, the Copyright Act was written and designed with the benefit of society in mind, insofar as this benefit is achieved through creative output and technological advancement. To single out sampling as not being “written with digital sampling in mind,’ as Webber and some other commentators have, is to put forth a logical fallacy that goes something like this: Since Congress didn’t expressly mention the art of sampling, Congress didn’t mean for the digital sampling of sound recordings to be covered by the same exceptions as types of borrowings and copyrightable subject matter. See the problem with that?
Like the Copyright Act, the Sound Recording Act was written with the purpose of copyright in mind; which means that it was written with permissive borrowing in mind. Congress was clear on several points in this regard. Frist, the Sound Recording Act was not to treat sound recordings any differently that other copyrightable subject matter; explicitly, this means that the same rules apply to sound recordings and all other categories of copyrightable subject matter. Second, the Sound Recording Act was left intentionally broad to account for advancements in technology, the kind of advancement in technology that made digital sampling possible.
Fair Use Preserves the Idea-Expression Dichotomy of Copyright Law
Ideas are not protected by copyright law. Copyright law does not bar others from using the ideas (or factual information) found in author’s work. As I noted in Chapter 13, this principle, or exemption to the exclusive rights of copyright owners, is known as the idea-expression dichotomy of copyright law. Fair use plays an important role in safeguarding the idea-expression dichotomy because “[w]here particular situations and advances in technology threaten to undermine the idea expression distinction, courts have applied fair use to reinforce this copyright principle.”[28]
Fair Use Preserves Consumer Autonomy and the First Sale Doctrine
(The Under Limits)
Finally, another role of fair use is to preserve consumer autonomy and the first sale doctrine. Under the first sale doctrine, the consumer who buys a copyrighted work is entitled to sell or dispose of his or her copy without permission from the copyright owner. Congress codified the first sale doctrine in the Copyright Act of 1909; and in 1947, the doctrine was recodified (using virtually the same language as the Copyright Act of 1909. Language for the modern form of the first sale doctrine was updated and set in the Copyright Act of 1976. Then, in 1998, in Quality King Distributors, Inc. v. L’Anza Research International, Inc., the Supreme Court strengthened the doctrine, stating that “[t]he whole point of the first sale doctrine is that once the copyright owner places a copyrighted item in the stream of commerce by selling it, he has exhausted his exclusive statutory right to control its distribution.”[29]
So under the first sale doctrine, the copyright owner has the sole right to make copies of a copyrighted work and sell them, for each copy sold on the open market, i.e. wherever commerce is legally sold, the copyright owner’s right to further control distribution of any copy that was sold is exhausted by the first sale of that copy. So the first sale doctrine allows the copyright owner to retain control over the work until it is first sold. And with the purchase, the consumer retains the right to resell the copy or use it privately as he or she pleases. One common example of this is the purchase and resell of a vinyl record.
At the foundation of the first sale doctrine sits consumer autonomy. When a consumer purchases a copyrighted work, like a song, a book, or a film, the consumer may privately consume the product however he or she chooses. If, for example, you want to write notes in the margins of a book that you bought, you can do that. You can even cut pages from the book and tape them to your fridge. The copyright owner of that book can’t stop how you privately consume their work. In this regard, the first sale doctrine and consumer autonomy are further preserved by fair use.
With regards to music specifically, this means that once you buy a sound recording, regardless of the initial capture-media format — vinyl record, CD, digital download — you can lawfully make a digital audio recording of it for my your own noncommercial use. This includes making copies of it for the purposes of engaging in, and experimenting with, the art beatmaking and sampling. Again, sample-based beatmaking per se is not copyright infringement. What is potentially copyright infringement, however, is the individual samples and their uses. But a sample is not presumptively copyright infringement simply because it’s a sample. In other words, there is no such thing as “per se” infringement because a sample is not “illegal” simply by virtue of it being a digital copy of a sound recording.
Copyright ownership does not make copying by end users unlawful. The mere activity of copying something for private use is protected by fair use. This is why the concept of per se infringement (introduced by the Bridgeport court) violates freedom of speech. And this is one way in which fair use protects free speech.
Towards a Healthy, Consistent Perception of Fair Use
There are two terribly misguided perceptions of fair use that still prevail today. First, there’s the perception that fair use is just a defense. This illogical (often mean-spirited) view — one that is held predominantly by music industry lawyers — seeks to place fair use at the back doorstep of a copyright infringement lawsuit. Second, there’s the perception that fair use is merely an exception (one that is grudgingly tolerated) to the rules of copyright law, i.e. to the copyright owner’s rights of private property. Both perceptions are harmful. A healthy, consistent perception of fair use means not misrepresenting fair use as just a defense or as an insignificant spectacle of copyright law, but rather recognizing fair use as a vital component and fundamental policy of copyright law. In fact, Fair use — which protects secondary creativity — is, in fact, necessary to the fulfillment of the objectives of copyright law:
The stimulation of creative thought and authorship for the benefit of society depends assuredly on the protection of the author’s monopoly. But it depends equally on the recognition that the monopoly must have limits. Those limits include the public dedication of facts (notwithstanding the author’s efforts in uncovering them); the public dedication of ideas (notwithstanding the author’s creation); and the public dedication of the right to make fair use of material covered by the copyright. [emphasis mine][30]
A healthy, consistent perception of fair use also means a recognition of the four factors that determine fair use, and more specifically, how these factors must be interpreted with the objectives of copyright being the guiding principle.
Lastly, a healthy, consistent perception of fair use requires that judges do not treat fair use as something mysterious or dependent upon intuitive judgments or individual fact patterns. There is a reliable guide to how to govern conduct, and in this regard the objectives of copyright remain supreme. Further, clarity in fair use is not about a bright line, but rather guiding principles. Quoting Justice Story, Leval reaffirms that a “definite standard would champion predictability at the expense of justification and would stifle intellectual activity to the detriment of the copyright objectives. We should not adopt a bright-line standard unless it were a good one — and we do not have a good one.” Nor should we aim to find such a standard, as some commentators have suggested. The four statutory factors — when balanced together in light of the objectives of copyright — provide excellent guidance. “We can…gain a better understanding of fair use and greater consistency and predictability of court decisions by disciplined focus on the utilitarian, public-enriching objectives of copyright — and resisting the impulse to import extraneous policies.”[31]
Some Important Conclusions About Fair Use, Especially as it Pertains to Sampling
When is Fair Use in Your Favor?
There are no legislative safe harbor guidelines specifically for sampling. Instead, the principles of fair use, as described earlier in this chapter, apply to all kinds of copyrighted material. That said, below is a description of when fair use is in your favor, or rather when the sampling and use of a copyrighted sound recording is likely a fair use.
The more transformative the use of a sample, the more likely it will constitute a fair use; conversely, the less transformative the use of a sample, the more likely it will not meet the fair use threshold. In other words, a 1- to 4-bar sample chopped up, pitched up or down, and combined with new drum work — and vocals over the top of the beat — is more likely to qualify for fair use than an 8- to 16-bar sample with little to no transformation and no additional music elements.
Although transformation may be subjective, when considering how transformative a sample-based beat is or isn’t, ask yourself three main questions: (1) Is the way that the sample is used conceptually different from its source? (2) Is the way that the sample is used a change in context from the original? (3) How much does the sample and use sound substantially similar to the sound recording — as a whole — from which it came. These three questions should you give you a good gauge on whether a use is fair or not. But in all cases, the more that you aim for a high level of creative transformation, the more likely your sampling will meet the fair use threshold. (For a review of the standards and best practices of sampling, see the “Standards and Best Practices” section in chapter 6.)
When the amount taken is small, you’re also in better shape. In a de facto context, a very small sample, like a drum kick, i.e. a sound that usually amounts to less than one second, is de minimis, despite the Bridgeport ruling (more on the controversial Bridgeport Music v. Dimension Films case in chapter 12). Still, there is no official 1-, 2-, or 3-second rule for the amount of sampling that automatically qualifies for fair use. Instead, to meet the fair use threshold, the amount sampled and used must be considered against the whole of the copyrighted sound recording that the sample came from. Furthermore, I advise against sampling the whole “heart” (main melody, etc.) of a work. But if you do sample some or even all of the heart of a sound recording, make sure you transform it substantially.
Looking at the transformation and amount factors, there’s three ways to approach the art of sampling in a way that’s favorable to the fair use doctrine: (1) Sample as little as possible; (2) Transform whatever you sample, i.e. flip it to the maximum, which means transform it by changing and adding to it to create something new and substantially different; and (3) Avoid sampling the “heart” of the work or the most recognizable parts of a sound recording; but if you must, make sure that you alter it to the point that it’s substantially different from the work that you borrowed from.
Notes:
1: Jeffrey Cadwell, Expert Testimony, Scenes A Faire, and Tonal Music: A (Not So) New Test for Copyright Infringement, 46 Santa Clara L. Rev. 137 (2005)
2: U.S. Code, 17 § 501, 106-122
3: On Davis v. Gap, Inc., 246 F.3d 152 (2nd Cir. 2001) (citations omitted).(emphasis mine).
4: Id.
5: Amir Said interview with Dr. Lawrence Ferrara, November 29, 2018.
6: Gyles v. Wilcox, 26 Eng. Rep. 489, 2 Atk.
7: Folsom v. Marsh, 9. F.Cas. 342 (C.C.D. Mass. 1841).
8: 17 U.S.C. § I07 (emphasis mine).
9: Barton Beebe, “An Empirical Study of U.S. Copyright Fair Use Opinions, 1978-2005,” University of Pennsylvania Law Review Vol. 156, No. 3 (January 2008), 549-50.
10: Matthew Sag, “God in the Machine: A New Structural Analysis of Copyright’s Fair Use Doctrine,” 11 MICH. TELECOMM. TECH. L. REV. 381 (2005), 404.
11: Pierre N. Leval, “Toward a Fair Use Standard,” Harvard Law Review, Vol. 103, No. 5 (Mar., 1990), 1109.
12: Leval, 1109-1110.
13: Ibid, 1111-1116.
14: Ibid, 1111-1116.
15: Sag, 382-383 (emphasis mine).
16: Leval, 1109
17: Matthew D. Bunker & Clay Calvert, “The Jurisprudence Of Transformation: Intellectual Incoherence And Doctrinal Murkiness Twenty Years After Campbell V. Acuff-Rose Music,” Duke Law and Technology Review, 2014, 96.
18: Campbell v. Acuff-Rose Music, 510 U.S. 579 (1994) (emphasis mine).
19: Bunker & Clay Calvert, 95.
20: Sag, 408-409 (emphasis mine).
21: Chapman v. Maraj No. 2:18-cv-09088-VAP-SS (C.D. Cal. Sept. 16, 2020).
22: Sag, 417 (emphasis mine).
23: Sag, 404.
24: Ibid.
25: Ibid, 410 (emphasis mine).
26: 26: Ibid, 410-411 (emphasis mine).
27: Amanda Webber, “Digital Sampling and the Legal Implications of Its Use After Bridgeport,” Journal of Civil Rights and Economic Development, Volume 22, Issue 1 (2007, 374).
28: Sag, 406 (emphasis mine).]
29: Sarah Reis, “Toward A ‘Digital Transfer Doctrine’? The First Sale Doctrine In The Digital Era, Notes and Comments, Vol. 109, No.1 (2015). See also: 523 U.S. 135 (1998).
30: Leval, 1136.
31: Ibid, 1135.
Excerpt from my forthcoming book The Art of Sampling, 3rd Edition, which I’m currently running a Kickstarter campaign for. If you have learned anything from this article and you would like to learn much more, please take a moment to pledge your support today and share this campaign with your network: The Art of Sampling, 3rd Edition Kickstarter Campaign
Thank you!
—Said
