Mr. Gneiss wrote: ↑
Wed Apr 10, 2019 7:54 pm
After reading all this Mike, I'm confused as to how someone/anyone can take the music of another and get away with using it because the music is magically folded into something called "political speech". I don't see how that is possible, but I'm a JAG (Just a Geologist), not an attorney.
Sure. So, again, the key about the political speech isn't (just) that it's political, it's that political speech falls (or should fall) into the broad basket of things that are considered to be fair use. Here's the full statute covering fair use:
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
There's a lot in there. I'm going to go bottom to top, since I think that makes the most sense under the circumstances.
Let's start with the last bit - "the fact that a work is unpublished." That doesn't apply here, since the Batman soundtrack is published. It's also not a factor for any of the type of political uses of works that I'm concerned with, because the nature of the borrowed work asa work of popular culture is an important part of why it's being used in the first place. (I'll get to that in a bit.)
Next, let's look at the 4th Factor - the effect on the potential market or value of the original. The main thing that this factor examines is the extent to which the original substitutes for the original work, either directly or because it's the kind of use that would be licensed. The case for this being a direct market substitute is (IMO) fairly weak. The whole (or at least most of) the track is used in the video, but it's one track, it's used in a different context, the music isn't (as far as I can tell) advertised in such a way that the video would be likely to come up in a search if someone was looking for the music, and even if you're looking to pirate that track there are many easier ways to find it.
Substitution for a licensed use is a bit trickier, because it's possible that but there's something a bit counterintuitive that can come into play here - uses of a type that rights holders might be unwilling to license (such as parody) generally favor fair use. I'm not aware of any case that explicitly places political uses into that category, but that's because it looks like the issue has yet to arise rather than because courts have refused. And I think such a determination would be justifiable - I've got quotes somewhere from a couple of different major content providers to the effect that they'd rather not license political uses because they want to stay away from that whole area. That doesn't strike me as all that different from the idea that parodies generally aren't licensed because nobody wants to license things that make fun of them - and that's a justification that courts have adopted.
So for this video, I think the fourth factor is neutral at worst, and plausibly favors fair use.
Third factor is the substantiality of the use - how much of the original was taken. This isn't measured in absolute terms, but in comparison to what was needed for the purpose of the new work. In some cases, a taking of a relatively small percentage of a book has been found to be unfair. In others, use of the entire original has been found to be fair. The analysis is a bit tricky here. The whole track (more or less) was used, but it was also the amount needed to score a 2-minute video. I'd go with neutral, but it could tip either way.
The second factor is the nature of the original work. Original works that are largely factual favor fair use. Creative works such as the song in this case tend to theoretically disfavor fair use, at least technically, but the courts have basically dispensed with this favor - finding that because the creative nature of the work is a key part of the reason for using it in a new work, the factor should carry very little weight. So this factor goes against fair use, but holds very little weight.
This takes us to the first factor, which is the key one - nature of the new use. There are two things that get looked at here - the list of uses at the start of the statute, and whether the new use is transformative. For me, the key word in the preface is "comment." What I'm arguing is that the use of popular culture references in political discussion is (or at least should be) considered to be a form of commentary, which would push this toward fair use. The test for transformativeness should also push toward fair use, since that looks at the extent to which the new use alters the original by adding new meaning, expression, or message.
So if my argument holds, this use would be fair use not simply because it's a political use, but because the political use pushes the first factor toward fair use, the second is against but holds virtually no weight, and the others are probably no worse than neutral.
The problem is that in cases like this, where the new use is commenting on something other than the original, the current caselaw on the first factor is all over the place to such an extent that calling it "incoherent" is a generous assessment. There are courts that have held that a more well-known artist's use of a lesser-known artists photographs in (commercial) appropriation art is fair use in part because it was social commentary even though it wasn't a comment on the original work, but the same court has also held that an unauthorized Catcher in the Rye
sequel that incorporated Salinger as a character and attempted to depict Holden's relationship with his author was not fair use because although it commented on Salinger
it didn't (in the court's view) comment on Catcher
My argument (in the paper I'm writing) is (1) that this incoherent doctrine needs to be resolved; and (2) because political speech is favored under the First Amendment and fair use is supposed to be how we incorporate First Amendment principles into copyright law, the doctrine should be resolved in a way that use of a work in political speech weighs in favor of a finding of fair use. (Not that it should be determinitive, but that it should push the first factor in that direction.)