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The Fair Use of Mashups

December 3, 2010

In light of the release of the new Girl Talk mashup album: All Day, I have decided to analyze the availability of a fair use defense for mashups in a three-part series. In my previous post, the first of my three-part analysis of mashups and fair use, I argued that mashups are pure copyright infringement not subject to a fair use defense. Here, arguments favoring fair use will be presented, demonstrating why fair use may be a valid defense for mashups.

For those unfamiliar, a mashup as defined by Wikipedia is: “a song or composition created by blending two or more pre-recorded songs, usually by overlaying the vocal track of one song seamlessly over the instrumental track of another.”

 

Mashup music may initially to appear to infringe the copyrights of the songs it samples, however, there is a clear fair use defense available. Based on the fair use factors set forth in 17 U.S.C. §107 it can be seen, on a balance of the different factors, that mashups are a fair use of the copyrighted works they are made of. Further, mashups are the type of valuable, new, creative works that copyright law and policy seeks to protect.

17 U.S.C §107 sets forth four factors to consider when determining a fair use defense:

(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.

Regarding the first three factors, Campbell v. Acuff-Rose Music provides guidance on the analysis. It is important to note however, that these factors must be weighted differently depending on the facts at issue. Further, the Supreme Court, in Harper & Row Publishers, Inc. v. Nation Enterprises, has noted that the fourth factor: “is undoubtedly the single most important element of fair use.” Finally, these factors are not exclusive, a court can consider other factors, such as the value and creativity that a work brings to society.

In brief, the first and second factors will likely lean against a finding of fair use for mashups, however the third and fourth factors, along with copyright policy, favor a finding of fair use. Further, when the factors are weighed, and the importance of the fourth factor is considered, it is likely that mashups will be subject to a fair use defense.

The first factor, the purpose and character of the use, may not favor a finding of fair use. In Campbell, the court identified that parody and social commentary favor a finding fair use, while actions such as pure copying would not. In the case of mashups, it is difficult to argue parody or social commentary, but at the same time, it is not quite “pure copying.” Yes, small portions of parts of songs are copied, but they are copied in a transformative way such that the new work is much different from the original. If a court were to pick a side, it would likely find that a mashup is slightly more akin to pure copying than social commentary, making the first factor weigh slightly against a fair use defense.

The second factor likely weighs against fair use because the musical recordings are the type of work that is at the core of copyright protections. This factor looks to the type of work that has been infringed to determine if it is, as stated in Campbell: “within the core of copyrights protective purposes.” The Court held that a musical work would indeed fall within the core of copyright protections. Musical works are at issue, therefore the second factor weighs against a finding of fair use because they are at the core of copyright protections. However, this second factor does not seem to add much value to the overall analysis, and is a weakly persuasive factor, at best.

The third factor, the amount and substantiality of the portion used, weighs in favor of a finding of fair use because the mashup artist uses only short snippets of particular tracks of songs, not substantial portions of the entire song. For example, a mashup typically consists of a short vocal track section extracted from the original song “mashed” with a beat or other musical snippet from another song. In Campbell a song was initially copied but quickly shifted to an original work. Likewise, in the case of mashups, a portion of a song is initially used, but then quickly shifts to another song in an original, creative and transformative way. Further, Campbell found that a the modification of the original song favors fair use. Mashups often involve speeding or slowing of tracks so that their tempos line up, Therefore, the minor and insubstantial use of musical tracks would favor a finding of fair use for the third factor.

The fourth and most important factor, the effect of the potential market of the original work, weighs heavily in favor of fair use because mashups do not interfere with the markets for the original songs. The fourth factor is considered to be the most important because it relates most directly to the policy of copyrights: to provide economic incentives for creators to create and to enrich society by encouraging creative authorship. Mashup songs do not interfere with the market for the original works because they only use small portions of the music, they largely use pre-established songs, and they do not replicate the original songs- they substantially transform them into new creative music.

Mashups use only a portion of a particular song combined with one or more other portions of other songs, as such, the use is not substantial enough to interfere with the value of the original song. If anything, the small portion acts as a teaser, attracting listeners to that particular song, and providing free advertisement for the original artist. Realistically, if a consumer only wants to listen to one verse of one song of an artist, they are not likely to buy the music anyway. Therefore, there is little to no impact on the market of the original songs.

The attraction of many mashup songs comes from the fact that the sampled songs used are well-known. Therefore, because consumers are familiar with the music, they have likely already made the decision to buy or not to buy the original, thus there is little impact on the market for the original works. It will be a rare case that a consumer downloads a mashup with a short sample of their favorite song as a substitute for purchasing the original.

Mashups do not replicate the songs they sample, instead, they a transform the songs substantially, such that there is little relation to the original work, and in turn, little impact on the market for the original work. As previously noted, Mashups use short samples of original works mashed with other samples. These short sections, when combined, result in a song that has been highly transformed from the original. Mashups do not replicate original songs, they operate in different markets and should not be found to interfere with the market for the original work. Therefore, the fourth factor weighs in favor of fair use for mashups.

Finally, Copyright policy strongly favors the creation of mashups because mashups represent tremendous progress in the arts, and at the same time, does not interfere with the incentives created by copyright law to encourage creativity. Copyright law seeks to enrich society by encouraging new creativity. This goal is achieved by balancing protection and economic incentives with freedom for new creators to build off of the developments of others. One major way that this balance is achieved is by fair use.

In the case of mashups, the copyright law balance strongly favors encouraging them. On the protection side of the balance, it has been established that mashups to not interfere with the rights or economic prospects of the original creators. On the freedom side, mashups are a new, popular and exciting type of art- exactly the type of works that copyright law seeks to promote. Therefore, in addition to finding support in the statutory factors, copyright law’s underlying policy also strongly favors a finding of fair use.

It has been shown that mashups fit comfortably within a fair use of copyrighted works, particularly because of the lack of economic interference with the original works mashups are made of. While the first two fair use factors weigh against a finding of fair use, the final two, more important factors favor fair use, as does copyright policy. When balancing the factors, it is clear that mashups are a fair use of copyrighted music.

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