On Tuesday January 28, the House Judiciary Subcommittee on the Courts, Intellectual Property and the Internet held another in its series of hearings on current copyright law. This time around, the topic was the fair use doctrine—a set of provisions that allow the unlicensed use of copyrighted material in new works under specific conditions.
Tuesday’s session was somewhat more focused than previous hearings, but was unfortunately cut short due to a scheduled floor vote. Although it didn’t go into as much depth as we’d have liked, the hearing offered valuable perspectives on an often contentious subject.
Witnesses on the panel included law professors Peter Jazsi and June Besek, author Naomi Novik representing the Organization for Transformative Works, songwriter and musician David Lowery of Cracker/Camper Van Beethoven and Kurt Wimmer of the Newspaper Association of America.
As we mentioned, fair use is a unique legal exception allowing artists and others to make use of copyrighted material without obtaining permission from the author or rightsholder. But fair use doesn’t mean you can just use whatever you want whenever you please—there are four specific factors that courts weigh to make determinations about the “fairness” of a use. (Check ‘em out here.)
Fair use has produced a lot of debate, from 2 Live Crew’s “Oh Pretty Woman” parody to controversies over mass digitization to the recent Beastie Boys vs Goldieblox dispute. As ranking member Rep. Howard Coble (R-NC) noted, the flexibility of fair use is a strength. A weakness is that that it doesn’t always provide perfect clarity. This might be why fair use tends to be poorly understood by the general population.
Professor Jaszi was the first to testify. He asserted that “the courts are doing an excellent job” of applying the fair use standard, but maintained that it could benefit from “legislative support” in the form of new exemptions from statutory damages for noncommercial users. Professor Besek offered an opposing view, voicing concerns that the definition of fair use is expanding. As evidence, she pointed to the courts’ increasing emphasis on whether a use is “transformative” in making a determination. Besek also suggested that Congress would do well to deal separately with issues around mass digitization rather than leaving it to the courts to apply a fair use analysis. Taken together, Jazsi and Beseks’ respective testimonies highlight some of the ongoing tensions around the fairness of “transformative” uses.
The committee next heard from Novik, a successful fantasy and sci-fi author who described how her career kicked off through her writing of fan fiction. Novik contended that licensing simply isn’t an option for creators who would make use of existing material, so they must rely on fair use. Small-time creators don’t have access to legal resources, she argued, nor do they have the time and expertise necessary to navigating the marketplace as either licensors or licensees.
Here, it may be helpful to think about different licensing environments for different kinds of media. It’s probably true that a writer of Star Trek fan fiction is unlikely to obtain a license to pen the new adventures of Captain Picard. For music, however, clearing a sample or licensing a lyric can range from easy-to-impossible depending on any number of factors.
David Lowery began his testimony by explaining he was not primarily concerned about parody, documentary films, or other uses generally accepted as fair, but rather unauthorized copies “masquerading” as fair use that compete with licensed versions. His chief example was straight from recent headlines—unlicensed commercial lyric sites like Rap Genius can be accessed alongside licensed pages that provide compensation to songwriters and publishers. Like Lowery, we think any case made for Rap Genius’ fairness is pretty weak and that commercial lyric sites ought to license up—publishers offer plenty of ways to do so. Lowery also acknowledged that Rap Genius has started to do just that.
It was heartening to see Congress seeking feedback from a working musician, even if our views aren’t in lockstep on every issue. Going further, some hip-hop and electronic artists may differ with Lowery’s assessment of the current sampling marketplace. “How hard is it to ask permission?” Lowery asked, insisting that “it’s easier than ever” to find the owner of an original work and get licensed. In response to a question from Rep. Judy Chu (D-CA), Lowery was quick to note that hip-hop as a genre has grown in popularity in the last 15 years, despite court rulings making collage-style sampling financially and practically difficult. But is popularity what we should be looking at here? P. Diddy rapping over the riff to “Kashmir” was popular, but is De La Soul’s jazzy, sample-dense work any less culturally important?
Lowery also noted that artists unable to obtain sample clearances will often choose to perform a new loop in the studio rather than use the original recording. Indeed, limitations can sometimes serve as a source of inspiration. But we’d also point out that an inability to license a sample can also mean a loss of potential revenue for the original performers and composers. What we often see is a “grey market”, where tracks are frequently released with uncleared samples with artists hoping to stay under the radar. Or maybe the use is adequately “disguised.” And then there’s the unlicensed tracks that get relegated to free online “mixtapes” that result in zero income for anybody.
Between Novick suggesting that licensed use is impossible and Lowery contending that it’s no big thing, you can see the range of creator opinion on the matter. With regards to music sampling, we tend to think that many artists’ views would land somewhere in the middle: licensing is possible, but it certainly could be made easier. As we’ve said before:
“Access to ownership information is limited; financial costs and transactions costs are prohibitively high; and there is a lack of published, transparent pricing. The challenge in addressing these obstacles is finding a solution that both facilitates a smooth, frictionless market for legitimate sampling and insures that copyright holders are fairly compensated.”
We’re especially interested in finding ways for smaller-scale artists to enter into licensing agreements (both as licensors and licensees).There may not be easy solutions, but professors Kembrew McLeod and Peter DiCola’s excellent book Creative License offers plenty of possible approaches. (It’s also an excellent history of sampling in hip-hop.)
In any case, as we argue in our written testimony, if there’s a legislative need to address sampling and remixes, tinkering with fair use probably isn’t the best way to do it.
The next hearing is slated to be on another hotly debated topic: notice and takedown requirements for internet services. We’ll keep you posted. For now, check out our timeline of past hearings, including archived video and links to written testimonies.