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Mashups and Fair Use: Final Judgment

December 9, 2010

In my previous two posts, I have proposed arguments that mashup music such as Girl Talk’s new album does constitute fair use (here), and that it does not constitute fair use (here). Now, in the third part of this post series, I will play judge and decide how I think the issue of mashups, copyright infringement and fair use should play out.

I believe that when considering arguments on policy and the fair use factors, mashups do constitute fair use in light of the transformative nature of mashups, and the minimal impact mashups have on the market for the original works. These points go to the heart of copyright policy, which seeks to drive the arts as a whole forward. Mashups are transformative and creative enough to be their own works. At the same time mashups do not compete with the economic interests of existing rights holders. Therefore, by allowing mashups, the arts as a whole are enriched, without interfering with copyright holders’ rights.

Mashups such as Girl Talk’s are highly transformative. Mashups take portions of different songs: a lyrical track, a beat, etc. and combine them together in a unique, unexpected and transformative way. There is much more involved than just cutting and pasting different songs together, as some critics may argue. Typically, the mashed up songs do not come close to the originals in length, impact or feel. This transformative nature is a key distinction because it makes the work more unique and less of a copy.

Further, mashups such as Girl Talk’s have a minimal impact on the market for the original works because they of the amount of transformation, and the use of already established songs. It is highly unlikely that someone would download Girl Talk’s album to hear a short sample of a song that they like instead of buying that song. The samples are too short, and too different to reflect the original song.

On the other hand, there will be many cases where there is not enough transformation to favor fair use. An example might be the Jay-Z/Linkin Park mashup album, where the mashups are just two songs from two artists. It is hard to draw a line in this circumstance, but it probably should be between Girl Talk’s use of 10+ samples, and the two of Jay-Z/Linkin Park. The amount of transformative activity will also directly impact the market for the original works because a lack of transformation means that it is easier to substitute one work for the other.

Mashups are a unique art form that does not interfere with the economic interests of copyright holders, and therefore copyright policy favors mashups being considered fair use. The issues of transformation/creativity and economic impact, directly reflect the policy of copyright law, and must be heavily weighed when determining fair use. Copyright law seeks to promote creativity by providing economic incentives to creators. It follows that without economic damage to creators, copyright law should not interfere with creativity. In the case of mashups, there will not be economic damage to the original creators of the songs used. Further, mashups are highly creative and transformative of the original works, and policy should encourage their creation.

Because the fair use factors weigh in favor of fair use, and because policy encourages it, mashups should be considered fair use. There is certainly room for debate, and many artists may not like the outcome. The fact remains however that mashups are little like the songs that comprise them, and in no way interfere with the sales of artist’s original works. The artists can still make their money, and at the end of the day should be happy to know that Girl Talk others are fairly using their works to further enhance the arts.

For further discussion of the arguments for and against fair use for mashups, see

Mashups: Copyright Infringement Without a Fair Use Defense? and

The Fair Use of Mashups

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3 Comments leave one →
  1. David permalink
    December 18, 2010 7:03 am

    You argue that the transformative nature of mashups leans away from a finding of infringement. However, as mashups become popular, they will also become a stream of revenue. Maybe not revenue for the artists, but advertisers are likely to want masups for ads. I saw a Verizon commercial on Hulu that used a “mashup” of two songs. Thus, the transformation isn’t any more than what an advertiser would do.

    In other words, the transformation isn’t so artsy as to be unobvious to advertisers. Warhol’s Cambell’s painting was transformative because it is something that the soup company was unlikely to come up with. Too Live Crew’s Pretty Woman was transformative because it was a parody that was unlikely to come from the creator of the original song. Mashups are a logical extension of the copyright owner’s stream of revenue.

    • December 20, 2010 5:46 pm

      David,

      Thanks for the comment. I think the fact pattern you propose would warrant a separate fair use analysis because of the particular use (first factor) of the mashed up work. However, I do not think that obviousness and likelihood of creation are the appropriate considerations in a fair use analysis.

      A mashup of a couple songs in an ad seems more akin to the Jay-Z/Linkin Park mashups, because a 20 second clip of a copyrighted song is very substantial (third factor) when used in a 30 second ad. In turn, this substantial use would interfere with the original artists revenue and likely fail on the fourth fair use factor.

      The fair use factors are tightly intertwined. As you can see, your fact pattern which changed the use of the work (first factor) has substantially impacted the third and fourth factor analyses.

      That said, the fact that something may be a natural or obvious extension of a copyrighted work does not, and should not, impact its fair use in all situations. There is a difference between the use of a work in mashup form for general listening and its use in an ad, just like there is a difference between a work being used in an educational setting compared to a commercial setting. Educational uses are generally fair use, while a commercial use is not. Likewise, mashups should be fair use of works when the work is a minor part of a mashup song. However, a mashup consisting of a small number of songs used in an ad might not be. The use is the key consideration here however, not the obviousness of the derivative work.

      • Dave permalink
        December 21, 2010 2:10 pm

        As I understand it, one of the considerations of a competent Court would be whether the creator of the work that is later used in the mashup would have wanted to make his own mashups. If such a creator did indeed want to make his own mashups, then a Girl Talk like producer is preempting the desire of the creator under the guise of transformation. The creator of the work may have intended all along that he would later make his own mashup.

        Thus, the Court in Campbell considered the fact that Roy Orbison was unlikely to make such an abrasive parody of his own work, but the court in Castle Rock (I think that was the name) decided that Castle Rock Entertainment (the creator of Seinfeld) was likely to one day make its own Seinfeld dictionary. Thus, in the first case a court is more likely to find fair use because the creator does not lose market share, but in the latter case a court is less likely because the creator’s market is negatively impacted.

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