On August 8, 2008, a US Court ruled that fair use can be used as a defence to the copyright infringement of sound recordings. In this case, EMI Records, the owners of copyright in John Lennon’s song “Imagine,” sued film producers for using a short clip of the song in their documentary. The court finds that the clip was used for purposes of criticism, and applying the four factors in s. 107 of the US Copyright Act, rules that this use was fair.
This case takes fair use a step further than in Bridgeport Music, a 2004 US case. In Bridgeport, the court held that any unauthorized use of a sound recording, no matter how insignificant, is actionable. Thus, creators who sampled-that is, used a portion of a copyrighted song to create a new song-were barred from claiming fair use, regardless of the amount used. This decision seems overly restrictive, especially since copyright law only prohibits the reproduction of a substantial part of a work (s. 3).
Although EMI Records breathes space into copyright law by finding fair use, we must be cautious before characterizing this decision as a triumph for user’s rights.¦lt;br /> Firstly, unlike in CCH where fair dealing is characterized as a user’s right, in EMI Records, fair use is still viewed as a defence to copyright infringement, placing the onus on alleged infringers to prove their use was fair.
Secondly, the market impact of the new work was largely determinative of the disparate holdings in these cases. In Bridgeport, a sample of a copyrighted work was used to produce commercial rap music. In EMI Records, the clip of Imagine was used in a documentary film developed for purposes of criticism, and thus did not interfere with the market for the original work.
The availability of the defence of fair use remains questionable in cases involving sampling for the purpose of creating a new sound recording. Although the court in EMI Records rejects the overly restrictive view that fair use is unavailable for any unauthorized reproduction, this holding gives little comfort to creators of new works seeking to use samples of copyrighted sound recordings for uses other than criticism. For creators of new music, reliance on the defence of fair use may prove risky in a climate where rights holders have succeeded in lawsuits against artists for routine sampling, no matter how insignificant (as in Bridgeport).
The solution proposed by the court in Bridgeport was simple: “Get a licence or do not sample.”[1] For sampling involving a substantial part of the original work, this is surely the right thing to do. But to require all uses, substantial or not, to be licensed may be antithetical to the purpose of copyright law, which in the US is the promotion of the “progress of science and useful arts.”[2] Especially in terms of hip hop music, where sampling is commonplace,[3] the tendency of courts to be overly restrictive in this realm may actually stifle, rather than promote, musical innovation.
[1]Bridgeport Music et al. v. Dimension Films et al. (2004), 401 F.3d 647; 2004 U.S. App. LEXIS 28641 (C.A.) at para 20.
[2]EMI Records et al. v. Premise Media Corp. et. Al (2008), at page 7 (Ruling can be found at http://cyberlaw.stanford.edu/system/files/EMI+v.+Premise+PI+Order.pdf ).
[3]Bridgeport Music et al. v. Dimension Films et al. (2004), 401 F.3d 647; 2004 U.S. App. LEXIS 28641 (C.A.) at para 12.
