The four factors steering Fair Use (FU) exceptions to copyright infringement are found at s.107 of the U.C.C. FU seeks ‘to work its way through the relevant factors and be judged case by case’ (D 40), and unfairness in any one factor does not necessarily render the whole unfair. Precedent for FU indicates that US law heavily relies on the ranking of factors. Below, the factors are listed from least determinative to most. Because of forgiving judicial application of parody to many factors, future owners will be hard-pressed to win FU claims that can be tripped up on any conflagration of these factors that leaves any doubt.
NATURE
The US should favour owners if the work is creative. Music and samples of it are creative. Copying even short samples ought to be infringement if not for permissible purposes. Parody could be argued here, since samples are heavily ‘transformed’ by addition of others. The concept of ‘industry practice’ if established at this stage, also endorses fairness, with rampant sampling commonplace by owners themselves.
THE PURPOSE AND CHARACTER OF THE USE, INCLUDING WHETHER SUCH USE IS OF A COMMERCIAL NATURE OR IS FOR NONPROFIT PURPOSES
The ‘pay what you can’ distribution format immediately sheds doubt on commercial unfairness. Notwithstanding this, Campbell goes as far as deeming commerciality not ‘dispositive’ anyway. Courts have accepted both parody and education as able to negate commerce. However in light of the quasi-profit voluntary pay structure, open-free dissemination validly downplays the profit motive enough to fulfill the good faith sub-factor for fairness (Sony v Universal D 39) on its own.
THE AMOUNT USED
Amount of copying (refers to quality and quantity) is the factor of second importance.
DJBG qualitatively and quantitatively copy less than 2 Live Crew. Yet ‘amount’ even in that case is deemed fair saved by parody. Assorted, juxtaposed samples from different genres lay further from ‘the heart’ of expression than copying a main riff. Parody in that case, shows this weakness of the UCC as a low, vague threshold for circumventing permissible purposes in pursuit of an unfair one.
THE EFFECT OF THE USE UPON THE POTENTIAL MARKET FOR OR VALUE OF THE COPYRIGHTED WORK
Harper and Row established ‘effect’ as the dominant factor in deciding fair use in US jurisprudence (D 43). DJBG’s work of short samples neither replaces (as ‘market substitutes’) nor could devalue any of its parent full length songs. Original artists are not ‘undermined’ (s.107) in losing future sales value. The ongoing limited release and obscurity of the work also shows the lack of such a connection.
Practicality would undermine any action before a court need look at enumerated factors. Risk of a negative precedent, profitless wins, weak separate plaintiffs and ironically, risk of positive precedent (stopping own sampling) protect DJBG. Ultimately, this compounds the tendencies of Fair Use as an ‘open list’ rubric. The latitude allowed US doctrine backed by common law parody make it next to impossible to successfully prove Unfairness in all but blatant cases.
D’Agostino’s piece can be found at:
Healing Fair Dealing? A Comparative Copyright Analysis to UK Fair Dealing and US Fair Use
http://papers.ssrn.com/abstract=1014404
