How Fair Use Got Its Groove Back

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A little over two years ago, Girl Talk released Night Ripper, an album of masterfully remixed samples that lifted mashups–new songs built out of existing tracks–to a gold standard. “The record’s pacing is astonishing,” burbled Pitchfork, “with more than 150 sample sources (all thanked in the liner notes), it ricochets from Top 40 hits to obscure gems and back again like a cool breeze.”

Post-Napster music fans stood still, waiting for foamy-mouthed industry lawyers to descend upon Girl Talk’s man-behind-the-curtain Gregg Gillis in a frenzy of copyright-violation suits. Gillis even had sampled the very same “Bittersweet Symphony” riff that famously embroiled the Verve and the Rolling Stones in the late 90s.

And then. . .  nothing happened.

Some speculated that the record industry wanted to avoid more negative, copyright-control-freak publicity–Gilles had thanked his samplees, for heaven’s sake. But more heartening was the hope that Night Ripper so clearly demonstrated creative transformation that no one dared question Gilles’ right to invoke fair use.

Fair use, laid out in Section 107 of U.S. copyright code, is a tricky thing, mostly because it’s (necessarily) vaguely defined, and (consequently) judged on a case-by-case basis. If you can make fair use of a copyrighted work for purposes of criticism, comment, scholarship, or teaching, why then: How do you define criticism? How do you define comment, scholarship, or teaching? If the portion used will be considered “in relation to the copyrighted work as a whole,” well, then: What’s a reasonable amount? Unfortunately, those definitions often seem to belong to the person with the biggest legal budget.

“Artists need to be able to earn money from their work, but by the same token, an artist needs some access to the work of others, to find things that are existing and reconfigure them into something new–the mashup is a hallmark of 21st-century artistry,” author Bill Ivey recently told Utne Reader librarian Danielle Maestretti. “The challenge is to have a conversation not about what’s good for corporations. . .  or even what is important about copyright for artists, but really how copyright serves citizens.”

Confusion about fair use impacts more people than musicians and artists. In late 2007, American University’s Center for Social Media released a report entitled “The Cost of Copyright Confusion for Media Literacy,” which showed how “poor guidance, counterproductive guidelines, and fear,” (emphasis mine) undermine teachers’ ability to “cultivate critical thinking and expression about media and its social role.” The report gives some based-on-real-life examples: A high school teacher, who produces dummy ads for his students to analyze, for fear that real ads would violate copyright restrictions in the classoom; an art teacher, who won’t let students use album covers in their projects.

“Fair use is the most important tool in copyright for educators,” according to the report’s authors. Yet we’ve been so cowed by the specter of copyright enforcement that we toe a more conservative line than necessary.

Fast forward to the present day: Girl Talk’s recent release, Feed the Animals, samples over 300 songs, and Gilles’ unimpeded ascension to the top of the charts has some copyright scholars thinking of him as the guy who gave fair use “its mojo” back. editor David Bollier writes:

Could Girl Talk’s brave invocation of fair use signal a turn of the tide for that beleaguered legal doctrine? Perhaps. Not only is fair use being thrown back at copyright industries with increasing frequency and success– evidenced by cases brought by fair use legal clinics at Stanford Law School and American University–Girl Talk actually has the public support of his Pennsylvania congressman, Mike Doyle.

It’s especially exciting to see scholarly momentum, even scholarly hope gathering around an artist like Girl Talk’s continued success when the general state of copyright law is so damn depressing. So depressing, in fact, that at the beginning of August, a premier U.S. intellectual on such matters threw in the towel at his personal copyright blog. Exhausted from voicing dissent, in his last post, William Party asserts:

Copyright law has abandoned its reason for being: to encourage learning and the creation of new works. Instead, its principal functions now are to preserve existing failed business models, to suppress new business models and technologies, and to obtain, if possible, enormous windfall profits from activity that not only causes no harm, but which is beneficial to copyright owners. Like Humpty-Dumpty, the copyright law we used to know can never be put back together again: multilateral and trade agreements have ensured that, and quite deliberately.

What do you think about the current state of copyright law? Is it broken beyond repair? Should we be hanging our hopes on artists like Girl Talk? Discuss in the Utne Salon.

(Thanks, Guernica and Soft Skull News.)

Image by joebeone, licensed under Creative Commons.

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