Welcome to our first Fair Use of the Week, a new YaleLawTech series where we analyze new, exciting examples of fair use on the internet. For a little more background on the project and what fair use is, be sure to read our introductory blog post.
This week’s fair use example is a mashup, appropriately called “Mash It Up”, by artist Norwegian Recycling. Norwegian Recycling, whose real name is Frans Peter Bull Enger, has been on the remix scene since 2006. He has produced three mashup albums, and his publishing style is fairly unique in that he pieces music videos together to go along with his tunes. Check out “Mash It Up” here:
A mashup, as you could probably tell from the video, is the combination of clips from other works of art in order to create a new piece. Most popularly done with music, mashups can comprise of videos, books, collages—really, almost anything. These remixes can feature two songs (e.g. tracks from DJ Danger Mouse’s The Grey Album) or hundreds (e.g. Girl Talk’s Night Ripper). Wikipedia has a great article covering the history and types of mashups.
Norwegian Recycling’s “Mash It Up” combines twelve different songs and music videos to create a new piece with a different meaning. The artist has carefully placed lyrics from all twelve songs to describe—wait for it—the nature of creating a mashup. Very meta, I know.
Fair Use Analysis
Fair use is normally a legal defense against a claim of copyright infringement. For the purposes of this series, however, we’re going to forget that fact and run through a fair use analysis anyway. When courts examine fair use, they look to (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion used, and (4) the effect of the use on the potential market for, or value of, the copyrighted work. If the factors weigh in favor of fair use, there is no copyright liability.
The first factor regards the purpose and character of using the copyrighted material. For this factor, I must determine how “transformative” the new work is. One helpful question to ask, suggested by Stanford’s Fair Use & Copyright Center, is, “Has the material you have taken from the original work been transformed by adding new expression or meaning?” In the case of “Mash It Up,” Norwegian Recycling pieced together multiple copyrighted works to create a new song with an entirely different meaning from the original works. The artist used copyrighted lyrics, often out of context, in order to express his own idea. This is a clear transformation, rather than a derivation, of the copyrighted works. The first factor test also takes into account the commercial nature of the use; in this case, Norwegian Recycling is giving away his mashup for free on his website. His intent, it appears, is noncommercial. It seems that this factor falls in fair use’s favor.
It can be further argued that “Mash It Up” falls under one of fair use law’s sanctioned purposes: commentary. Because of the “meta” nature of the lyrics, including lines like “Now I know that I had to borrow / And try something new / Without being disrespectful,” Norwegian Recycling was commenting on the nature of mashups. He goes on to note, “Ain’t no wonder there’s panic in the industry,” and, “Cuz you’re a criminal / And it’s alright with me.” His lyrics are a clear commentary on the tensions between the music industry, intellectual property, and the remix community. This point of view bolsters the song’s fair use argument.
The second factor is about the nature of the copyrighted work. The works that “Mash It Up” features, including Cee Lo Green’s “Fuck You,” Lady Gaga’s “Bad Romance,” and Sean Kingston’s “Beautiful Girl,” are all popular, published, and heavily sold songs. Because these are not in the public domain, the factor seems to weigh in their favor.
The third factor covers the amount and substantiality of the portion of copyrighted material used. In “Mash It Up,” Norwegian Recycling uses short lyrical clips—all of which are no more than a few seconds long. Because of this minimal and insubstantial quantity, use of these clips should be fair. That being said, the entire song’s background music is a looped section of Cee Lo Green’s “Fuck You.” Cee Lo’s clip—especially the opening chords—are pretty recognizable, and a rational observer would associate those notes with his song. The “heart” of the work, generally the most memorable part of the tune, often gets more protections than other, more minor portions. This is where things get a little tricky: yes, Cee Lo’s track makes up the background of the entire Norwegian Recycling tune, but do the short cuts of the other songs trump this use? If I had to judge this, I would say yes; the lyrical portions are clearly the more important parts of the mashup, and the combination of lyrical cuts over an edited background seems transformative enough to still render this clip fair use.
The fourth and final factor is the effect of the use on the copyrighted material’s market or value. Norwegian Recycling’s mashups are seemingly noncommercial, as I determined above. I don’t think the song “Mash It Up” serves as a market substitute for the original songs; “Mash It Up” is no replacement for Lady Gaga’s “Bad Romance.” In fact, as has been claimed by other remix artists, mashups encourage listeners to seek out and buy the original tunes. It helps that Norwegian Recycling has listed all twelve sampled works on his song’s YouTube page. This factor weighs in favor of Norwegian Recycling.
As Justice Souter notes in Campbell v. Acuff-Rose Music, fair use doctrine purposely contains vague language so issues would be addressed on a case-by-case basis. He states, “All [four factors] are to be explored, and the results weighed together, in light of the purposes of copyright.” Mashups—and other digital-era forms of creativity—force us to consider the nature of copyright, industries, and social norms very carefully. Using my analysis, it seems clear that “Mash It Up” is protected by fair use.
As an interesting side note, Norwegian Recycling may be worried about remixing “without being disrespectful” for good reason. Although being respectful has no place in U.S. copyright law—in fact, potentially harsh criticism is strongly protected by fair use—the issue of respecting the integrity of a copyrighted work is very real in other parts of the world. European law, including Norwegian copyright law, contains a set of rights known as “moral rights.” Criticism, commentary, and parody can offend or detract from a work, thus potentially violating the creator’s moral rights. In this case, cutting songs and mashing them into a new context could raise some alarms. However, since the commentary in “Mash It Up” is directed at a greater industry and culture, rather than directly at the artists themselves, it doesn’t seem like he is violating any of their moral rights.