I was recently asked about “fair use” standards for use of copyrighted video or audio in mashups.
What’s a Mashup?
First: What are mashups? From WiseGeek:
A mash-up is a combination of tools or data from multiple sources. Mash-ups typically collect data from multiple web pages and bring their information into one simplified web application.
Mashups are common in the application development world, but also common in music and videos, and examples are legion (and some notorious). In particular, a music mashup is (according to Squidoo) …
when the vocals from one song are laid over the music of a second song to create a mashed up version that’s both but neither. If a good job is done, it enhances the original music.
Actually, the last part of that definition is most critical to a fair use analysis. I recently wrote about fair use in the context of the republishing of copyrighted photographs or artworks in a magazine, book or electronic publications. But the question there of whether the use of copyrighted material is “transformative” applies equally to music or video mashups. And so the question is still whether the mashup is “transformative”.
What is “transformative”?
A popular explanation of a “transformative” use came in a 1994 Supreme Court case:
… whether the new work “merely supersede[s] the objects” of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is “transformative.”
Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 575, 114 S.Ct. 1164, 127 L.Ed.2d 500 (1994).
Examples
Parody. Parody is transformative. So, for example, MoveOn.org’s mashup “Stop the Falsiness”, a parody of Stephen Colbert’s “truthiness”. The very clear purpose was parody, a well-established fair use. MoveOn’s mashup uses a number of Colbert clips, and the clips are interspersed with commentary. The result is a new or “transformative” work with a different purpose than the original.
Educational or Informational. An educational or information tool can be transformative. So, for example, “A Fair(y) Use Tale”, a mashup made by a law professor to illustrate the fair use doctrine, which includes some famous Disney animation clips. The author takes the individual Disney clips and combines them in a new (i.e. “transformative”) way to educate and inform, albeit informing about the subject of fair use itself.
Other Examples. American University’s Center for Social Media has a terrific online debate about “fair use” with video mashups, with numerous excellent examples. Included is a funny mashup coupling ABC News moderators from a 2008 Presidential debate with New England Patriots coach Bill Belichick. Belichick is shown being asked (and “answering”) questions about the Afghanistan war, the real estate mortgage crisis and President Obama’s former Chicago Pastor Jeremiah Wright.
MTV’s Movies Blog created this hilarious mashup with “Jersey Shore” star Angelina Pivarnick being substituted for Angelina Jolie in the new film “The Tourist”. (Full disclosure: I’m from New Jersey but I have no idea where these people from “Jersey Shore” came from.)
Amount of the Use
Among other judgment criteria for fair use, a still important but somewhat lesser factor for mashups is the amount of the copyrighted material used. While a video or music mashup can be justified as fair use if the use – alone or in combination with other samplings – is “transformative”, there is still the question of whether the amount of the copyrighted material used was only so much as reasonably necessary for the fair use purpose. Like the question of whether a use is “transformative”, there are no hard and fast rules for how much is too much. On the other hand, the amount of the use (“the amount and substantiality of the portion used in relation to the copyrighted work as a whole”, 17 U.S.C. § 107) is a factor in the determination of whether a use is transformative.
As a practical matter, one is less – much less – likely to attract fair use trouble if the uses of the copyrighted works are narrow and limited. So, for example, in MoveOn’s “Stop the Falsiness”, the copying of the Colbert clips is many in number, but short in length.
On this same point of “amount and substantiality of the portion used in relation to the copyrighted work as a whole”, the 2004 case of Bridgeport Music, Inc. v. Dimension Films, 383 F.3d 390 (6th Cir. 2004) involved a defendant who was successfully sued for copyright infringement despite having copied just one chord of a George Clinton song. However, the defendant did not raise fair use, instead relying on a “de minimus” argument about the amount of the use, which failed.
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