Fair Use : Factor One
(1) The purpose and character of the use, including whether such a use is of a commercial nature or is for nonprofit educational purposes;
Congress has enumerated certain uses that fall within the scope of fair use. The statute lists criticism, commentary, news reporting, teaching, scholarship, parody, or research as possible candidates. However, because the fair use doctrine is "an equitable rule of reason," an exclusive list of fair uses cannot exist, as each case is to be determined on a fact-specific, case-by-case basis.
Section 107(1) provides that the court shall consider "the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes." A commercial purpose tends to weigh against a finding of fair use but is a rebuttable presumption available for the defense to dispute. The thrust of the profit/nonprofit distinction lies not in whether the user's sole motive was financial gain, but in "whether the user stands to profit from exploitation of the copyrighted material without paying the customary price."
First, no customary price exists for the use of a sample. Sampling technology has been prominent for almost twenty (20) years and yet the law has not been amended to include a customary price for use of a sample, as in, for example, pricing for compulsory licensing of performances of cover songs. Second, the court noted in Harper & Row that the defendant (the publication The Nation) intended to usurp Harper & Row's "commercially valuable right of first publication." Digital samples are taken from an already distributed work, often times several years after its release. Digital samplists are artists. They are not looking to race record labels to distribute music first. Third, regarding profit and nonprofit uses. Samplists need to eat. Anything worth doing is worth doing for money. The court's reliance on a nonprofit standard for fair use ignores the reality that artists need to support themselves and their work with a return on their investment like everybody else in the world. As currently applied, the nonprofit standard simply assures that only the independently wealthy may dabble in fair use. If society values the challenging and reforming aspects of critical fair use works that emerge from independent thinking, the law should not condone the smothering of such works by disallowing their economic survival in the free marketplace.
Courts commonly apply a transformative use analysis to determine if an appropriation, without the addition of substantial new material, is an exploitative commercial use purely for financial gain. In essence, the addition of musical and lyrical elements must rise to the level of substantial creativity for the use to satisfy this analysis in sampling cases. The court has yet to define what constitutes substantial creativity.
Another factor courts commonly consider in evaluating the character of the use is whether the user acted in good faith. It is not presumptively considered bad faith if a user requests permission from the copyright owner, is denied and appropriates the work anyway. However, the court's reliance on a good faith factor imposes a catch-22 on the samplist. To escape liability, samplists are told to obtain clearance. Yet the very attempt to obtain clearance may increase the possibility of civil and criminal suit-exposure. The attempt to license puts the author on notice and the author's attorney on speed-dial. This produces an absurd result and puts the samplist in an extremely precarious position. Additionally, in cases of criticism or parody, it is highly unlikely that the target author's hubris would ever allow a licensed appropriation. A good faith effort to attain a license will most likely result in some type of injunctive action by the copyright owner.
(2)
The nature of the copyrighted work;
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Footnotes:
Parody
Cases:
See Campbell v. Acuff-Rose,
510 U.S. 569, 581(1994) a.k.a. the 2 Live Crew Case. Though I will
not focus my analysis solely on the parody exception, Justice Souter stated
that the "threshold question when fair use is raised in defense of
parody is whether a parodic character may reasonably be perceived,"
regardless of whether a parody is in good taste or bad. For a work to
be judged as having a "parodic character", Souter wrote that
the most important factor is whether a work is commenting on the original
or criticizing it some degree. In essence, the appropriated work must
be the target. Also see Rogers v.
Koons, 960 F.2d 301, 309 (2d
Cir. 1992). No fair use exception where Koons appropriated another's
copyrighted work in order to criticize society as a whole.
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Related Links :
Wikipedia: Campbell v. Acuff-Rose, Parody
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