We mixed popular songs to make a mix that contains pairs of opposites: day and night, American boy and American woman, Monday and Saturday, etc. The mix highlights the fact that many popular songs touch on the same common themes but often from divergent perspectives. In this sense, our video is akin to the art of vidding. Francesca Coppa defines vidding as “an art in which clips from television shows and movies are set to music to make an argument or tell a story. The song is used as an interpretive lens; the music and lyrics tell us how to understand what we see.” In this case, our video juxtaposes songs about similar themes and the images are used to draw the viewer’s attention to the argument. For instance, the successive images of a calendar month showing “July” and one showing “August” highlight the opposing lyrics of the two songs paired with them.
We think the music in the video constitutes fair use. The Copyright Act allows copyrighted materials to be used if “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.” This video arguably falls into both the criticism and comment categories; it juxtaposes parts of songs to comment on the nature of popular music more generally and in doing so is a type of cultural criticism. The other factors considered in fair use also seem to confirm that the music used in our video falls under fair use. For instance, the purpose of the video is not commercial, and though the material used is copyrighted only a small portion of each song—about ten seconds—is used. It seems reasonable to conclude that people would not listen to the music in this video instead of any of the individual songs. The effect of our video on the potential market value for the originals songs is minimal; people can appreciate the argument made in the video and still listen to and enjoy popular music, and the video might even expose people to music they hadn’t before heard and subsequently buy. Last, though the song clips aren’t themselves transformative, their placement of opposite songs next to one another makes the video generally transformative. The purpose of the original music is entertainment, whereas the purpose of the video is commentary or argument. Ultimately, the purpose of copyright laws is to promote the progress of science and the useful arts. We think this is a useful commentary on popular music, and it’s unlikely that the video, even if it went viral, would negatively effect the production of music generally or any of these songs specifically.
Although the music probably falls under fair use standards, the images used in the video may not. The images used aren’t transformed from their original contexts, as they appear just as they did when first displayed. They are also used in their entirety, as many of the images appear by themselves in their original contexts. Moreover, the purpose of the pictures is arguably also not transformative. Assuming they were originally intended for entertainment, they are also used in our video for essentially the same purpose. They do aid in the argument posed by the video—as the contrasting images highlight the contrasting lyrics in the songs—but they also serve as a pleasant visual complement to the songs that isn’t actually necessary for the argument in the first place. However, the other factors considered under fair use standards are still largely met. The purpose of using the images is noncommercial and it’s unlikely that the use of the images in this video will affect the market for the original images. Despite their aiding a cultural argument, then, it seems like the images would not fall under fair use.
Will Horowitz, Amarto Bhattacharyya, William Smith
Yale Law Tech 
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