Even Weird Al Gets Permission
If you’re on the Intellectual Property Brief website, odds are that you know what fair use is. The doctrine of fair use is one of the most important features of United States copyright law, and the need for its preservation cannot be overstated. The American University Center for Social Media has some excellent definitions of fair use:
“Fair use is the right, in some circumstances, to quote copyrighted material without asking permission or paying for it. It is a crucial feature of copyright law. In fact, it is what keeps copyright from being censorship. You can invoke fair use when the value to the public of what you are saying outweighs the cost to the private owner of the copyright.” [source]
“Fair use is flexible; it is not uncertain or unreliable. In fact, for any particular field of critical or creative activity, such as documentary film-making, lawyers and judges consider professional expectations and practice in assessing what is ‘fair’ within the field.” [source]
Fair use is a privileged use of another’s copyrighted work; it is a complete defense, and means that the use was not an infringement. If there is a lawsuit, fair use is pleaded by the defendant. When a court makes a fair use determination, the Judge generally focuses on the four factors codified in 17 U.S.C. §107:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
To generalize, many fair use opinions seem results-oriented; it appears that the court made up its mind, and then used the factors to explain its gut feeling. This is why fair use has the reputation of being notoriously unpredictable.
One frequently successful type of fair use is parody—because parodies involve fundamental First Amendment undertones, because they are almost undeniably transformative, and because they require using a preexisting recognizable work in order to create a successful parody. This trend also stems from the Supreme Court’s opinion in Acuff-Rose Music v. Campbell, 510 U.S. 569 (1994), in which the Supreme Court made a crucial finding of fair use and ensured that transformative use would become an essential part of the fair use analysis:
“Although such transformative use is not absolutely necessary for a finding of fair use, 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, and the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.”
With this precedent, most post-Campbell uses that are characterized as parodies are successful fair uses.
And yet despite this, one of the most famous parodists of pop music, Weird Al Yankovic, does not rely on fair use alone in his parodies; he seeks permission. He explains this in a post entitled the Gaga Saga, in which he first believed he could not release his “Born This Way” parody “Perform This Way” because he thought Lady Gaga had denied permission:
“My parodies have always fallen under what the courts call ‘fair use,’ and this one was no different, legally allowing me to record and release it without permission. But it has always been my personal policy to get the consent of the original artist before including my parodies on any album. . . .”
The confusion was cleared up the next day with the post Gaga Update!, in which it became apparent that Lady Gaga had never been consulted herself, and it had been her manager who denied permission; Gaga later approved the parody. Check out the two posts if you are interested in seeing an example of the persuasiveness of social media and star power. Also, Check out Weird Al’s impressive can’t-be-unseen video, but be warned that it may be NSFW.
Weird Al’s posts did not explain whether he merely seeks permission, or whether he pays a license fee. If even Weird Al, whose works are clearly parodies and thus should be clearly fair use, cannot rely solely on fair use, then perhaps there are problems with our fair use doctrine, and there needs to be more education and awareness of the rights granted to the American public.
When describing the flaws of fair use and how it is used, many mention Professor Lawrence Lessig’s famous quip that “fair use in America simply means the right to hire a lawyer to defend your right to create.” However, fair use is much more than that, and should not be a post-hoc rationalization. In order for fair use to function fully, the creators who rely on it have to know about it and attempt to conform to established fair uses in their field, as in the Best Practices in Fair Use project. Fair uses tend to be more successful when they are noncommercial, but that does not mean money is never generated; the Computer & Communications Industry Association recently produced a report showing that fair use does help the U.S. economy.
“Permission culture,” according to Lessig, “means a lawyer’s culture—a culture in which the ability to create requires a call to your lawyer.” This is particularly distressing now, as technologies permit creation and remix, and most of it may be unauthorized derivative works, and thus constitute copyright infringement. As permissions and licenses are sought and granted, the need to get pre-approval for a type of use of a type of copyrighted content can start to become the norm, which displaces the intended balance of copyright law and fair use, and can even limit de minimis uses. A related problem is criticizing fair use, which is often done even by people who might believe in fair use and its fundamental purpose. As Professor Peter Jaszi explained, “[T]he critique of fair use as being too vague and unreliable to be of much practical use has achieved considerable currency, and it operates to discourage media practitioners, their lawyers, and their so-called ‘gatekeepers,’ including distributors, broadcasters, insurers, and others from relying on the doctrine.” Potential creators, influenced by the generic legal advice they get, may be discouraged from contributing to culture due to fear of litigation, when they may very well be making transformative fair uses, which is one of the keys to a successful fair use defense.
This post is getting long, but I’d be happy to share some more thoughts on fair use in another post; let me know if there are any issues you want me to address. As a soon-to-be non-academic, I know I will still care about fair use and assertion of it outside of the litigation context… Who’s with me?