Recently Sony Pictures took home a fair use win over a Faulkner quote in Woody Allen's 2011 flick Midnight in Paris. There's been a fair bit of chat about fair use recently, especially after Andy Baio's unfortunate out-of-court settlement over an infringement which he possibly could have established as fair use, had he hired the army of lawyers and consultants that Sony Pictures used to spar with Faulkner, Inc. Still, Sony's win is a small step forward in a much larger war, so let's celebrate with a look at five court cases upholding our right to reference and remix others' art in our own art.
First, let's do a little Fair Use 101. If I wanted to quote Miranda July in this post, would I need to ask her permission before I could print it? Nope. As long as I cite her, it's a fair use. July's words, and anyone else's, are out there in the ether for writers to quote willy nilly.
A quote becomes plagiarism when the quoter goes overboard; if I were to reprint one of July's entire books in this post, she might have a problem with that. But because we're all so relaxed about quoting one another within reasonable limitations, we're able to have blog posts and articles and books that dig deep into all sorts of subjects, because the author is free to draw upon unlimited sources, engage with them as s/he will, and cite them at the end of the day.
Fair use establishes this right for not just writing, but any form of communication, including music, film and artwork. Among a varying host of factors unique to each situation, the courts consider the following in each fair use analysis:
(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.
It sounds simple, but gets complicated in instances like the situation which entangled me in the depths of Sony's own licensing department during the making of my first documentary, The Creators. It began with Vusi Mahlasela's beautiful rendition of "Senzeni Na?" (Oh, you don't know it? Allow me to legally link you to another version of the folk song, below).
Both Mahlasela and I felt that his song should be included in a historical scene in The Creators. The copyright owner, Sony Music, seemed to disagree. Or at least they disdained to respond adequately to dozens of emails and phone calls stretching over two years, driving me to finally consult a lawyer on whether the excerpt was a "fair use."
Though the lawyer's fees possibly cost as much as the track's license would have, I finally obtained an official-looking letter stating that the excerpt from "Senzeni Na" constitutes fair use under US Copyright Law due in part to the usage's brief and unindulgent illustration of the historical context relevant to The Creators' thesis as a whole.
Of course, this letter doesn't mean much in those countries operating outside of US Copyright Law, so we had to replace the song for all screenings and sales outside of the United States. All this over a folk song in the public domain which both the recording artist, Mahlasela, and the licensor, Daydream Reels, LLC wanted to include in the film pro bono.
Similar battles result in the delay and cancellation of countless projects each year, so it's important to recognize the many legal victories that have paved the way to our current understanding of fair use and copyright law. I'm no legal scholar, but below is my best effort to summarize the most pertinent aspects of each ruling in laymen's terms. Let's get to it.
Campbell v. Acuff-Rose Music Inc. (AKA 2 Live Crew vs. Roy Orbison)
When 2 Live Crew came up with this parody of Roy Orbison's Pretty Woman, their manager asked Acuff-Rose Music for a license to use the track. Acuff-Rose Music refused, but 2 Live Crew went ahead and released their track anyway. Nearly a quarter of a million sales later in 1994, Acuff-Rose Music sued for copyright infringement. After a lengthy battle, the Supreme Court ruled in favor of 2 Live Crew, establishing that commercial parodies can qualify for fair use status. (And Weird Al was born.)
Sofa Entertainment, Inc. v. Dodger Productions, Inc. (AKA The Ed Sullivan Show v. Jersey Boys)
A seven-second clip of the Ed Sullivan show in the Jersey Boys musical (during which Ed Sullivan introduces The Four Seasons, shown above in another Ed Sullivan appearance) sparked this lawsuit, which was dismissed by the Ninth Circuit Court of Appeals as "a good example of why the 'fair use' doctrine exists."
The Court found that the use was transformative, the factual nature of the content (Ed Sullivan's introduction) distanced it from the intent of copyright protection, and that the quantitative (7 seconds) and qualitative value of the work were minimal. Weighing the fourth factor outlined above, the Court wrote:
"Jersey Boys is not a substitute for The Ed Sullivan Show. The clip is seven seconds long and only appears once in the play. Dodger does not reproduce Jersey Boys on videotape or DVD, which would allow for repeated viewing of the clip. Dodger’s use of the clip advances its own original creation without any reasonable threat to SOFA’s business model. Therefore the fourth factor also favors a finding of fair use."
Faulkner Literary Rights, LLC v. Sony Pictures Classics, Inc. (AKA Faulkner v. Woody Allen)
Despite Faulkner Literary Rights' assertion that viewers might be confused into thinking that F.L.R. somehow participated in or sponsored Midnight in Paris (I would also be embarrassed, too, if I were Faulkner), the US Court for the Northern District of Mississippi dismissed the claim as a stretch of the imagination exaggerating the effect of the movie's nine-word, attributed quote.
Noting the "diametrically dissimilar" context of the usage (1930's Mississippi versus modern-day Paris), the "transmogrification in medium" (a novel quoted in a movie), and the de minimus usage (the quote made up a mere 8 seconds of the feature film), a federal judge in Mississippi ruled that the quote was a fair use. (An excerpt containing the Faulkner quote isn't available online, but below is a separate liberty taken with Hemingway.)
Patrick Cariou v. Richard Prince
The image on the left is Patrick Cariou's photograph from his 2000 book, Yes Rasta. On the right, a painting from Richard Prince's 2008 Canal Zone series. Prince never asked for permission from Cariou, but the US Second Circuit Court of Appeals found all but five of the paintings in Prince's "Canal Zone" series to be within fair use because of their transformative nature and the two distinctly different markets to which each caters.
Although the Court notes that Prince uses the entire work of art (the entire photograph) in most cases, the Court determines that the transformative nature of the (twenty-five out of thirty) paintings justifies the use.
Brownmark Films, LLC v. Comedy Partners (AKA What What in the Butt v. South Park)
In laymen's terms, the Seventh Circuit Court of Appeals said, "Watch the two videos. Just watch them. It's clearly a parody. Don't waste our time." Impressively, the Seventh Circuit managed to use the word "butt" only once in the entire twelve-page statement.
For those who appropriate and remix work under fair use but still worry about the costs of litigation despite the fairness of their work, take heart in the work of pop DJ Girl Talk. Represented by the Illegal Art label (which is very friendly towards soundtrack licensing requests, by the way) Girl Talk's Gregg Gillis has shown his work to be decidedly legal after over ten years of making mashups.
For more information on fair use, take a look at the Center for Social Media's Documentary Filmmakers' Statement of Best Practices in Fair Use and Stanford's Summaries of Fair Use Cases.