Oh, to be a lawyer. It must be a fun time to study copyright law…

In its most general sense, a fair use is any copying of copyrighted material done for a limited and “transformative” purpose such as to comment upon, criticize or parody a copyrighted work. Such uses can be done without permission from the copyright owner.

Alas, I think Fair Use might be reaching its breaking point.

Today, Shepard Fairey settled with The Associated Press over his (un)Fair Use of their image in the now (in)famous Obama “Hope” poster, that icon of the 2008 election featuring a ponderous Barack mutated into a four-color collage with the word “Hope” emblazoned across the bottom.

The details of the ruling are, of course, sealed but we can only imagine his Hope-related clothing company, Obey Clothing, will soon be receiving a similar slapdown. If we’re going to be honest, Fairey’s use of the image does constitutes theft. Or by my simple metric, “if it was my picture, I’d be pissed too.”

With that in mind, will someone please explain Girl Talk? Gregg Gillis’s (a.k.a., Girl Talk) most recent release “All Day” cobbles 373 uncleared samples into a downloadable mp3 album given away for free. He isn’t offering original music, just layers and layers of samples. And yet, no one in the industry seems to care. In fact, some of the sampled artists post links to his download page from their sites!

Fair Use cases focus on several factors (ok, four). The biggest of these factors concerns loss of revenue. One can argue, I think successfully, that Girl Talk doesn’t deprive his sources of future sales. The album is not a replacement for any of the individual works it contains. One could argue that he’s also not making money on it, since it’s a free download. But that might be a stretch; his popularity as a live DJ has risen exponentially. Gillis, now a festival headliner around the globe, has undoubtedly seen an uptick in his finances due to the popularity of those free products.

Another pro-Girl Talk argument concerns the nature of the work itself. Namely, do Girl Talk CD’s create a pastiche, a new work, wherein the individual tracks indistinguishably blur together? Perhaps, but I’m pretty sure most of us can pick out the source material and sing along, pastiche or not. In legal terms, they’ll say it’s transformative, that it will “transform a particular article into a different state or thing” (*). This means that the work is not trying to supersede or replace the samples, but create something entirely new from them. Maaaaaybe….

The extent or length of the samples is another factor, though recent Supreme Court cases have all but nullified this argument. You use it, you risk getting sued, no matter how short it is.

Ultimately, these cases rest in the heads of judges. The likeability of Gillis will probably be the single most important factor. Hippy dude living with mom makes cool musical wonderbread and gives it away like Robin Hood. “All Day” (and the others) are exciting, much-loved party albums. I don’t know anyone who dislikes this stuff. If it was smut, or slander, or something ugly, yes, he’d be screwed. And at that, the cost of clearing this thing is so staggeringly high, it’s practically a parody of the licensing industry in and of itself.

I’ve mused over this before and I’m happy to do it again: in the end, is anyone actually buying music anymore? If no one buys it, why will people continue pressing CDs? Answer: they won’t. The future is in the single homespun track passed off to a streaming service. Girl Talk and the non-reaction from the majors will, in particular, be regarded as one of the seminal moments in the fall of the music industry.

More on Fair Use:
http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/9-a.html

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