I try extremely hard to avoid going lawyer on you, but when I put on my attorney hat, there’s one subject that creatives almost universally misunderstand: fair use. Because (1) it’s a copyright concept, and (2) copyright law is at the heart of what we do as creatives, that’s a big problem.

I’ve had innumerable people – clients and non-clients alike – tell me that they assume that something they’re doing is okay because of the “30-Second Rule” or the “10% Rule”. Just one thing: those “rules” don’t exist. They’re urban myths. The reality of fair use is that it’s an extremely complicated and fact-sensitive area of law. In fact, even an experienced copyright lawyer can only give you an educated opinion about whether something you want to do might be a fair use.  Guarantees are absolutely impossible.

Why should you care, then? Well, let’s start with this: any instance of copyright infringement – including one which you mistakenly thought was a fair use – can potentially lead to $150,000 in damages without any proof of actual financial losses (and with actual losses, fuhgeddaboutit). Hopefully, the number $150,000 has your attention.

If you’re a content creator and you read no further, please take away one important thing about fair use: You don’t know enough about it to decide whether something you want to do constitutes a fair use!!! It’s an extremely complicated and fact-sensitive subject. If you’re thinking about any unlicensed use of a copyrighted work – whether it’s a song (or song lyric), a picture, a movie clip, whatever – do the smart thing and talk to an attorney who understands the subject about the specific thing you want to use and how you want to use it.

The content of this post cannot help you arrive at a decision regarding your specific legal situation! 

That having been said, to give you an idea how challenging and subject fair use is, I thought I’d walk you through how fair use analysis might work using a subject anyone in the music business is familiar with: mash-ups. The question: is a typical musical mashup – an unlicensed one – a fair use of copyrighted works?

Since a mashup is an amalgamation of song samples, let’s start by sampling the work of the master of mashups, Girl Talk.  (Irony alert: his website used to sell a $14 DVD discussing copyright issues.) Mr. Gregg Gillis of Pittsburgh, PA has been performing as Girl Talk for over a decade, recording five “albums” of mashups without – to my knowledge at least – having been sued. If you’re not familiar with his work, here are a couple, er, samples (complete with fan videos that could be the subjects of another fun fair use post) and a warning: DON’T LISTEN TO THIS STUFF IF (1) YOU’RE EASILY OFFENDED OR (2) YOU’RE AT WORK OR OTHERWISE AROUND ANYONE WHO MIGHT BE OFFENDED BY THE KIND OF CONTENT YOU FIND IN, SAY, LIL WAYNE RECORDS. 

To show you how complicated this stuff can be, here’s a very basic analysis of whether using music samples in a Girl Talk mashup is a fair use. For my non-lawyer friends, if you’d like to follow along at home on your fair use scorecard, there are four statutory factors that courts consider; none of them is, by itself, determinative of whether a use is fair or not.  For my lawyer friends, well, you know how this works, so let’s meet our fair use factors!

  1. Purpose and Character of the Use. This involves a couple things: (1) is the use commercial or not (e.g. a use for educational purposes only), and (2) is the use “transformative”?  A couple thoughts
    • Mr. Gillis’ uses – remember he’s using tons of samples – are clearly commercial. Even though he technically doesn’t charge for his music, he asks fans to pay whatever they think it’s worth, and he’s obviously making a nice enough living with it, including touring. (Speaking of which, I’ve never been to a Girl Talk live performance. Am I the only person who’s floored by the fact that people pay serious money to watch him dance on stage while playing samples?) He’s got to be doing pretty penny on merch too.
    • Are his uses transformative? I’d certainly argue that they are. Yes, he sometimes uses nearly minute-long samples from songs, but you can’t seriously argue that UGK’s International Players Anthem doesn’t sound and feel completely different when it’s laid over Spencer Davis’ Gimme Some Lovin’. (Listen to Play Your Part, Pt. 1, and you’ll see what I mean.)
  2. Nature of the Copyrighted Work. The more “creative” the work, the less likely your use is a fair use. (e.g. News reporting is less creative than fictional writing.) We’re dealing with music. It’s intensely creative. Not a good factor for Gillis.
  3. Portion Taken. This isn’t just about the quantity of the song Gillis takes – which is why the “10% rule” is not a real rule – it’s also about whether you take the essence of a creative work. In some cases, Gillis takes a few nondescript seconds from a song, but in others, he uses the entire riff and hook, such as, in Oh No, when we “borrows” over two minutes of Black Sabbath’s War Pigs (it’s almost eight minutes long), including the riff and hook. You’d have a hard time arguing that he didn’t take the heart of that work.
  4. Effect on Potential Market of Copyrighted Work. Does your use of someone else’s creative work impair their right to profit from their work by serving as a substitute for that work? Even when Gillis uses the heart of War Pigs, can you make a reasonable argument that potential buyers won’t dole out 99 cents for an .mp3 of War Pigs because it’s included in Oh No? Frankly, if anything, Girl Talk’s use of certain works arguably enhances their potential market. In the leading case on fair use (it’s called Campbell v. Acuff-Rose if you’re bored enough to look it up, thought it’s actually a fun read, particularly when Justice Souter quotes 2 Live Crew), the Supreme Court noted that 2 Live Crew’s making of a rap sendup of Roy Orbison’s Pretty Woman could have impacted Acuff-Rose’s ability to sanction its own rap version of the song. That logic could not apply to the use of samples, since samples can be – and are – used in multiple fashions in multiple mashups. (For example, listen to the use of Jay Z’s Dirt Off Your Shoulder on Girl Talk’s Every Day and in a licensed MTV mashup with Linkin Park’s Lying From You.)

Now the hard part: do I think that the typical Girl Talk mashup is a series of entirely fair uses?  I’m a lawyer and a content creator, so I value great creative work – and the people who perform great creative work – immeasurably.  Every fiber of my being wants to answer in the negative. Nevertheless, the entire purpose of copyright protection is to give creators an incentive to contribute to the national pool of ideas.  Great content – including a lot of “offensive” content – does exactly that.  Fair use exists because we want to incentivize others to build on the work of content creators without destroying the economic benefits that content creators receive from owning their works.

Bottom line #1: Arguably, some of the 60ish-second long uses in Girl Talk mashups might not be fair uses, but someone is going to have to throw a big pile of money at a litigator to win that argument.

Bottom line #2: I’m guessing that the vast majority of Girl Talk’s uses, fair or not, are either revenue-neutral or excellent promotional tools for the original recordings.  That sets the fourth fair use factor far more strongly in Girl Talk’s favor.

Bottom line #3: There are no absolute answers here, and when it comes to fair use, there never are unless you litigate the matter.

Bottom lines for you:

  • If you’re thinking about doing something – whether it’s making a movie, a mashup, or anything else – and you’re not sure whether you’re putting yourself at risk for copyright infringement liability, talk to a lawyer. At a potential $150,000 a pop for even the most mundane uses, do you really want to take a chance?
  • The next time someone tells you that they know something they want to do “isn’t copyright infringement” because they know the “30-Second Rule” or the “10% Rule”, ignore them. In fact, call your lawyer doublequick.
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