By Dan Fergus
Originally written November 22, 2004
Published on-line October 25, 2007
In 1989 the innovative hip-hip group De La Soul released their first, and highly influential album, Three Feet High and Rising. Hailed by the critics, the record broke new ground in music; instead of traditional instrumentation, De La Soul layered their vocals on top of sound collages created with the aid of digital technology. Snippets if songs, speech, and other random sounds were digitally “captured,” that is recorded with the aid of special software, and then distorted, looped, and recombined within a computer, to create original musical and rhythmical backdrops for the groups songs. This innovative approach to music reflected a larger trend that was emerging at the time: the appropriation of audio and visual works (songs, films, photos, works of art, TV shows, etc.), by artists who would then reuse this material in their own work, made possible by digital technology, specifically, the personal computer.
But the reaction to De la Soul’s album was not universal approval. When members of the 60s pop band The Turtles heard the album, they recognized a portion of one of their songs, “You Showed Me,” woven into the De La Soul’s track “Transmitting Live From Mars.” The Turtles sued De La Soul for copyright infringement, and won. The legal ramifications had a chilling effect on the world of music and design. Suddenly artists and musicians who had felt free to “sample” the work of others now feared that they might be the recipients of similar law suits, and in fact many were.
Then, in 1989 another hip-hop group, 2 Live Crew, was sued by the estate of Roy Orbison, over the use of part of his song “Pretty Woman” in a decidedly different song with the same title. This time, the “samplers” won; the United States Supreme Court ruled in favor of 2 Live Crew in 1994, saying that the group had made “fair use” of the appropriated material, and therefore had not infringed on Roy Orbison’s rights. Hailed as a victory of multimedia artists, the ruling none the less left many confused. Why was 2 Live Crew’s use of an earlier song considered legal, while De La Soul’s was not? Unfortunately, he answer to this is not cut and dry. At issue here is the rather murky and frustrating concept of fair use.
According to Webster’s new World Dictionary (1976), to use is defined as “to put or bring into action or service; employ for or apply to a given purpose” (pp. 1563–1564). The noun version of the word can be defined as “the act of using or the state of being used.” From the beginning, artists have taken things from other artists in order to employ them for a purpose, that is the creation of their own art. These “things” include compositions, characters, color schemes, ideas, themes, musical phrases, melodies, harmonies, instrumentation, and so on. This “theft” has been commonplace, and accepted. In fact, Professor H.W. Janson in his widely read text History of Art (1985), states quite matter-of-factly, “There is no such thing as a completely original work of art” (p. 14). Janson points to the well-known case of Edouard Manet’s Le Déjeuner sur l’Herbe, whose characters were lifted from a drawing by Marcantonio Raimondi. This drawing was in turn a copy of a (lost) Raphael painting, which was itself based on a sculpture found on a Roman sarcophagus dating to the 3rd century a.d.
Many other examples can be cited, including relatively recent works by Pop artists like Roy Lichtenstein and Andy Warhol, who consciously recycle pieces of consumer culture like comic books and soup can labels in their art.
But artists are discovering that they are no longer as free to “borrow” from others as they were in the past; in today’s world, it can lead to lawsuits. In 1994, a computer-based illustrator named Stephen Arscott won an award for his illustration The Wild West. But he had based one of the figures in his piece, an image of an American Indian, on a photo by Nick Vedros (Potawatamie Indian). Vedros sued, seeking $400,000 in damages. In defending himself, Arscott said “I had no idea I was infringing on anybody’s rights...I thought I was creating something new” (“Corel,” 1994, p.16). But according to Vedros, “creating something new” was not reason enough to use his work without permission. What’s more, Vedros had copyright law on his side.
As far back as the 18th century, lawmakers in the England, and later the United States recognized the need to protect to rights of authors. According to the U.S. copyright office (n.d.):
Copyright is a form of protection provided by the laws of the United States for “original works of authorship” including literary, dramatic, musical, architectural, cartographic, choreographic, pantomimic, pictorial, graphic, sculptural, and audiovisual creations. “Copyright” literally means the right to copy. The term has come to mean that body of exclusive rights granted by statute to authors for protection of their work. The owner of copyright has the exclusive right to reproduce, distribute, and, in the case of certain works, publicly perform or display the work; to prepare derivative works; in the case of sound recordings, to perform the work publicly by means of a digital audio transmission; or to license others to engage in the same acts under specific terms and conditions. (What Is a Copyright?, para. 1.)
But in a series of court cases, mostly over the last century, the judiciary has recognized that there are legitimate reasons to circumvent these protections. These exceptions to copyright were deemed by the courts a “fair use” of the material, and included parody, news reporting, and education. Eventually, the United States Congress codified these exceptions in section 107 of the copyright law (n.d.), which reads:
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 (“Limitations On Exclusive Rights.”)
Unfortunately, this definition of fair use did not solve all of the problems. In fact, it may have made things worse. The four factors meant to determine whether or not a work is fairly used are vague and broadly written. There are no specific amounts of words or musical notes that can be used. There is no cut and dry formula.
Recognizing this, a 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law sought to add further clarity by citing some specific examples of activities that courts have regarded as fair use:
Quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported (Fair Use, 1999).
While these examples help, they still lacked specificity, and were certainly not exhaustive. Educators, for example, still wondered what “a small part of a work to illustrate a lesson” entailed. How small is small? Is 10,000 words too many? 1000? 100? Could a work by photocopied and distributed to students? Could it be projected as a slide?
In 1976, in response to questions like these, a group of educators, publishers, and authors met to try and hammer out some guidelines to aid in determining fair use. These guidelines were far more extensive and specific than other measurements put forth by the courts and the legislature. Among these guidelines were the following:
Motion Media: Up to 10% or 3 minutes, whichever is less, in the aggregate of a copyrighted motion media work may be reproduced or otherwise incorporated as part of a multimedia project created under Section 2 of these guidelines.
Text Material: Up to 10% or 1000 words, whichever is less, in the aggregate of a copyrighted work consisting of text material may be reproduced or otherwise incorporated as part of a multimedia project created under Section 2 of these guidelines. An entire poem of less than 250 words may be used, but no more than three poems by one poet, or five poems by different poets from any anthology may be used. For poems of greater length, 250 words may be used but no more than three excerpts by a poet, or five excerpts by different poets from a single anthology may be used.
Music, Lyrics, and Music Video: Up to 10%, but in no event more than 30 seconds, of the music and lyrics from an individual musical work (or in the aggregate of extracts from an individual work), whether the musical work is embodied in copies, or audio or audiovisual works, may be reproduced or otherwise incorporated as a part of a multimedia project created under Section 2. Any alterations to a musical work shall not change the basic melody or the fundamental character of the work (Fair Use Guidelines, Fair Use section, 1996)
Despite all the hard work represented by these guidelines, two big problems remain. The first is the sheer complexity of these guidelines. Imagine the challenges faced by a teacher who wants to study a collection of poems and prose in a class. Trying to sort out what is permissible and what is not is a bit daunting.
The second problem is more fundamental: these guidelines are not legally binding. There is no guarantee that strict adherences to these guidelines will prevent a lawsuit; there is still a risk involved. These two flaws have caused many an educator to throw up his hands and say “why bother?” In the end, it seems the only safe thing to do is to get permission from the holder of the copyright.
For artists the issue of fair use is even more difficult to resolve. If an artist creates a work dealing with socio-political events of the day, should that fall under the category of news reporting? Should a piece that uses humor be allowed on the basis of parody? The cases of De La Soul and 2 Live Crew described earlier illustrate how frustrating and seemingly contradictory fair use standards can be. To cite another example, The Board of Regents of the University System of Georgia, Office of Legal Affairs (2004) listed on its web site “Creative fair use by authors who copy from other works to create their own work” (part I, section 10) as a legitimate interpretation of fair use. But this is surely contradicted by both the De La Soul and Arscott cases.
Thus it is not surprising to learn that a number of artists have begun to take public stands on the issue of fair use. Negativland is a group of musicians (Mark Hosler, Chris Grigg, Don Joyce, David Wills, and Richard Lyons), who create “songs” out of a variety of sampled sounds. According to the Unofficial, Unnecessary Negativland [Web] Page (2000) “they appropriate, dissect, juxtapose, scramble, reassemble, and regurgitate sonic material culled from a variety of sources—anything from network and shortwave broadcasts to private phone conversations and family recordings made in the kitchen” (Negativwho? section, para. 1). They also use snippets of recordings from other artists, which has often landed them in court. In a series of essays and statements, the members of Negativland have made it well known that they feel fair use has been too narrowly defined, and does not allow for creative expression. According to the members of the group (n.d.):
A huge improvement would occur if the Fair Use section of existing law was expanded or liberalized to allow any partial usage for any reason...The beauty of the Fair Use Doctrine is that it is the only nod to the possible need for artistic freedom and free speech in the entire copyright law, and it is already capable of overriding the other restrictions” (Fair Use, para. 15).
They believe that artists should not be limited in borrowing from another work, as it is used in the creation of a new work. The members of the group explain:
[We] would have the protections and payments to artists and their administrators restricted to the straight-across usage of entire works by others, or for any form of usage at all by commercial advertisers. Beyond that, creators would be free to incorporate fragments from the creations of others into their own work. As for matters of degree, a “fragment” might be defined as “less than the whole”, to give the broadest benefit of the doubt to unpredictability. However, a simple compilation of nearly whole works, if contested by the owner, would not pass a crucial test for valid free appropriation. Namely: whether or not the material used is superseded by the new nature of the usage, itself — is the whole more than the sum of its parts? When faced with actual examples, this is usually not difficult to evaluate (Fair Use, para. 14).
Another critic of current copyright law is Daniel Jasper, an artist and professor at University of Minnesota. Jasper sees copyright law more as a protector or corporate profits, less as a defender of individual rights. In a letter to this author he wrote, “I have no expectations that copyright laws are or ever would be fair.” He feels that fair use should be defined “as broadly as possible.” He goes on:
To expect artists to go out and paint haystacks at dusk a la [sic] Claude Monet or a starry night a la [sic] Van Gogh is ridiculous. Commercial culture has insinuated itself into our conscious daily lives as well as our unconscious. We speak and experience using their received language: “where’s the beef”, “you’re fired”, “show me the money” etc. Business has spent billions of dollars to become a part of our daily lives, our common experience, our shared culture. Guess what? They did! They were very successful at it too! So to suddenly cry “foul” when people/artists start talking about their personal experience (that is largely influenced and often indistinguishable from commercial pop-culture) using the language, sound and imagery OF consumer culture is completely hypocritical and disingenuous — and totally predictable (personal correspondence).
How one defines fair use seems to depend largely on which side of the appropriation controversy one stands. Those that make use of the work of others like De La Soul, Stephen Arscott, Negativland, and Daniel Jasper, would prefer to define fair use broadly, liberally, while those who have had their work appropriated like The Turtles and Nick Vedros would seem to prefer a very narrow definition. This issue is far from resolved; it is a battle that will continue to be waged in the courts, and legislature. And as digital technology makes the appropriation of work easier and faster, the controversy is likely to get far worse before it gets better.
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All images and work shown herein copyright Daniel C. Fergus. All rights reserved. No reproduction without permission.