In 1989, a notoriously potty-mouthed rap group from Miami known as 2 Live Crew took a perfectly sweet '60s ode to a wholesome pretty girl and transformed it into a nasty rap version. The song, "Pretty Woman," unabashedly copied the title, the characteristic opening bass riff, and the first line of the lyrics of the original. 2 Live Crew attempted to obtain a license for the song from the music publisher, Acuff-Rose, but the publisher refused, no doubt horrified at the perverted version of the song concocted by 2 Live Crew. Undaunted, 2 Live Crew recorded and exhibited the work, and sold a quarter of a million copies without paying Acuff-Rose a dime.
Acuff-Rose predictably sued for copyright infringement, and 2 Live Crew defended on the ground of fair use. Five years later, the U.S. Supreme Court handed 2 Live Crew a stunning shutout, holding unanimously that 2 Live Crew's version of "Pretty Woman" was fair use.
In so holding, the court emphasized the importance of fair use to the very purpose of copyright protection, which as stated in the U.S. Constitution is to "promote the Progress of Science and the useful Arts." Centuries before fair use was codified in the U.S. Copyright Act, a form of fair use had existed in the common law dating back to the Statute of Anne of 1710. As the court observed, quoting Justice Joseph Story, "[i]n truth, in literature, in science and in art, there are, and can be, few, if any, things, which in an abstract sense, are strictly new and original throughout. Every book in literature, science and art, borrows, and must necessarily borrow, and use much which was well known and used before."
The key, said the court, is whether the new work is "transformative" of the original, whether the new work "supersede[s] the objects" of the original creation or instead "adds something new, with a further purpose or different character, altering the first with new expression, meaning or message."
Fast-forward 22 years. In the last couple of years, we have witnessed a pandemic of lawsuits claiming copyright infringement from the "sampling" of notes or riffs by one musician or musical group of a song of another artist. Pharrell Williams and Robin Thicke, Ed Sheeran, Led Zeppelin, will.i.am and Justin Timberlake, Madonna, and others have all been subjected to lawsuits claiming millions in damages from samplings of relatively small portions of the original work. (In the Madonna "Vogue" case, the sampling was 0.23 seconds.) These samplings have been incorporated into entirely new works that often bear little resemblance to the originals. Indeed, "musical experts" have to be called to explain to the jury how the allegedly infringing sample is "substantially similar" to the original such that infringement has occurred.
What is curious about the defense of these cases is that fair use apparently has not been raised. Much time and effort is spent demonstrating that the infringing artist did not have access to the original work (and therefore could not have copied it), or that the sampling was insubstantial or not substantially similar. But so what if the subsequent artist knew of the prior work and borrowed from it to create a new work? Is that not the essence of the fair use right? Does that not "promote the Progress of … the useful Arts"?
If 2 Live Crew, admittedly in a parody, could copy substantial portions of another work, why can't Led Zeppelin take a few notes from a Spirit song and make a completely new work out of them? If it takes an expert to explain to a listener that fractions of two songs are "substantially similar," how can the infringing use not be "transformative"?
The Supreme Court may soon be called upon to weigh in on music sampling as copyright infringement. The Ninth Circuit recently ruled in the Madonna "Vogue" case that de minimus music sampling was proper. The ruling contradicts the 2004 Bridgeport ruling by the Sixth Circuit that even de minimus music sampling constitutes copyright infringement. In neither of these cases, however, was fair use explicitly raised or discussed.
Which is a shame. Fair use analysis is complicated, consisting of a four-part test, and there is no telling what the outcome in these two cases would have been had fair use been applied. One could argue that sampling of music of the same general genres, such as from a funk song to hip-hop and rap songs as was the case in Bridgeport, is insufficiently "transformative" to be fair use, although one also could argue that sampling is precisely how funk evolved into hip-hop and rap. Or the test could turn on whether the second recording as a whole "sounds nothing like the original," as in the Vogue case. Who knows? But the arguments should be made and heard.
No one today doubts that fair use protects the hilarious works of parodists such as Weird Al Yankovic, who has "copied" famous artists ranging from Michael Jackson to Nirvana without any discernable impact on the market for the original works that he lampoons (to the contrary, Kurt Cobain considered that he had "made it" once Weird Al skewered him with "Smells Like Nirvana"). The current litigation wave against artists who use small portions of other works to create completely new works could have a chilling effect on innovation outside of the parody context. Perhaps the court will find occasion sua sponte to apply the same principles that sheltered 2 Live Crew to works other than parodies, so that artists will feel freer to stretch the boundaries of existing art in furtherance of "Progress of … the useful Arts."
This article is reprinted with permission from Law360.
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