Fair Use of the Week: Trollface – by “Shirley B”

This week on Fair Use of the Week we will be talking about Trollface.  Yes, trollface.  If you haven’t heard of it, or at least seen it, then you’re probably eighty and not spending enough time on the internet.  “Trolling,” which originally was used to describe a fishing technique in which one would drag a lure through the water to bait the fish out, now, in the digital world, describes the act of goading someone to elicit a reaction.  Whether someone does it “for the lulz” or some other reason, trolling has become annoyingly common, and Trollface is its symbol.  But now, Trollface’s widespread usage is under attack by its purported creator, a deviant art user who goes by the username Whynne.  Whynne alleges that users of the link aggregation and social media website Reddit.com, specifically of the subreddit “F7U12,” or “FFFFFFFUUUUUUUUUUUU,” has used his copyrighted image in a manner “devastatingly injurious to its original iconic value.”

Whynne's email complaining of copyright infringement.

Trollface purportedly first appeared in one of Whynne’s comics, seen here.  This week, we will determine whether or not Trollface and its use in rage comics on Reddit.com is fair.  To do that, we will look at the history of the image itself and the nature of the images as they are featured in specifically on Reddit.

This case is different from many of the others we have covered because Whynne is bringing a complaint against both Reddit and a group of Redditors, rather than a single independent actor. Because it would be impractical and essentially impossible to look at every single rage comic with Trollface that has ever been created, we will speak in generalizations and primarily about the role that Reddit.com has played in the alleged infringement.

Factor 1: The Purpose and Character of the Use: As we always do in our analyses, for this factor we will look at whether the work is transformative enough to stand up to a fair use claim and whether or not the work is being used in a commericial way.  First, the individual creators of rage comics (hereinafter “F7U12 Redditors”) juxtapose a high resolution image of Trollface with a person’s face that allegedly resembles the image.  While this may seem transformative, it is questionable whether the juxtaposition imparts new meaning on the Trollface.  In fact, the Trollface is probably imparting the meaning onto the actual faces, thereby making the use of Trollface non-transformative.  Second, some F7U12 Redditors may receive advertising profit from their individual websites.  As such, the use of Trollface by F7U12 Redditors who receive advertising profit is commercial and, thus, presumptively unfair.  When taking all this into account, this first factor seems to disfavor the F7U12 Redditors.

Reddit.com’s use, however, falls even more strongly in the realm of non-commercial use.  Reddit.com hosts thumbnail images of the Trollface and only links to the high-resolution images.  The low resolution images hosted by Reddit.com have little commercial value, and the use of them is practically non-commercial.  As such, Reddit.com is, in many ways, a link aggregation and search site like Google.

To understand why Reddit.com’s use of Trollface thumbnails is transformative, one must understand how Reddit.com operates.  Harnessing the wisdom of the crowds, Reddit.com uses a system called “karma.”   “Karma” makes sure that good posts “float” to the top, while posts that people don’t like are buried.  Users comment on the posts, and, similarly, their comments “float” to the top in the way that popular posts do.  From this persecptive, Reddit.com’s “karma” system provides public benefit by identifying newsworthy posts.

Here, the posts in dispute incorporate thumbnail images of Trollface.  These Trollface thumbnails are juxtaposed with Reddit.com’s karma ranking plus the community’s comments.  This makes Reddit.com’s use of thumbnails highly transformative because Reddit.com imparts new meaning on them.  As such, the trollface thumbnails serve an entirely different purpose than what Whynne intended.  This transformative use, coupled with the public benefit of Reddit.com, means that the first factor weighs in Reddit.com’s favor.

Factor 2: The Nature of the Copyrighted Work: Whynne originally made Trollface without any commercial motivation.  Trollface is itself a fair use of another’s drawing.   As Whynne admits, Trollface was his own attempt to draw Rape Rodent, and Rape Rodent itself was an attempt to draw Mighty Mouse.  The drawing of Mighty Mouse came out looking so creepy it earned the monikers “Rape Rodent” and “Molester Mouse.”  However, Whynne has registered his image with the U.S. Copyright Office and thus removed his image from the public domain.  Whynne has a right to make derivatives of his original comic, and because Trollface is a derivative work from Whynne’s original comic, it is protected by copyright.  As such, this factor weighs against the F7U12 Redditors.  Similarly, because the photos appeared on the internet before Reddit.com used corresponding thumbnail versions in its social news website, this factor weighs slightly against Reddit.com.

Factor 3: The Amount and Substantiality of the Portion Used: Trollface first appeared not as a standalone image, but as a single panel in a comic. Users of Reddit do not replicate Whynne’s entire comic, but only take the face itself.  Still, they replicate the face in its high-rez entirety.   This means that this first factor weighs against the F7U12 Redditors.

Conversely, Reddit.com only hosts and displays thumbnails on its site.  The high resolution images are kept on websites that specialize in image hosting, like imgur.com, to which Reddit links.  The use of thumbnails by a search provider, as the court in Perfect 10 v. Amazon.com held, constitute a reasonable amount of copying.  Using something less than a thumbnail would be unhelpful to a computer user.  Therefore, this factor weighs heavily in favor of Reddit.com.

Factor 4: The Effect of Use Upon Potential Markets: It is foremost important to identify the potential harm to the relevant markets.  Whynne makes a profit on his illustration by licensing it for merchandise. For example, he licenses his image with Deviant Art, which sells shirts, hats, buttons, bags, and even keychains on its site.  Whynne also has a line of Trollface soaps with the British website soapier.com and has tried to have Hot Topic carry a line of Trollface t-shirts.  These pieces of merchandise utilize high-resolution images of Trollface.

Whynne alleges in his complaint that the use of Trollface by F7U12 Redditors has harmed his original comic’s “iconic value.”  If Trollface fans were buying comics by F7U12 Redditors, we would agree.  However, from our research, no F7U12 Redditors are selling their comics.  Nevertheless, to the extent that F7U12 Redditors are reproducing high-resolution Trollface images without a license and then profiting from such use, we do think that they are harming Whynne’s potential licensing market.  Yet, this distinction between for-profit and not-for-profit F7U12 Redditors is artificial because none of the F7U12 Redditors’ uses are transformative.  When there is no transformative use, there is a presumption of market harm, which means this fourth fair use factor weighs against all of the F7U12 Redditors.

On the other hand, Reddit.com’s use has hardly harmed the market for Whynne’s full-size images and Trollface licenses.  Reddit.com’s low resolution, thumbnail images were highly transformative, and any allegation of market harm would be purely speculative–especially since there is, arguably, no commercial market for thumbnail images.  Therefore, this fourth fair use factor weighs in favor of Reddit.com.

Conclusion: Weighing the fair use factors leads to the conclusion that the F7U12 Redditors’ uses were unfair as none of the factors weigh in their favor.  But weighing the factors also leads to the conclusion that Reddit.com’s use was a fair one, especially in light of the public utility served by its “karma” feature and the transformative nature of its use.

Fair Use of the Week: Friends With Benefits v. No Strings Attached – by “Julie S”

Summer movies can range from epic cinematic prequels of beloved comics to formulaic rom-coms created to feast on the money of bored teenagers and pining singles.  One YouTube trailer that was a hit this week mocked the last type of blockbuster by using copyrighted materials from No Strings Attached and Friends With Benefits to create a mash-up trailer satirizing the painfully obvious formulas of the movies, and it is this mock trailer that provides the subject for this week’s fair use analysis.

When analyzing whether a mash-up is covered under fair use, we once again look to the four fair use factors set forth in §107 of the Copyright Act. We will examine each of these four factors to determine whether fair use protects BlindFilmCritic Tommy Edison’s mash-up, Friends With Benefits v. No Strings Attached.

Factor 1: The purpose and character of the use. The purpose of this trailer is non-commercial and for entertainment purposes only, intended to provide a “humorous & unique perspective on movies.”  In the mash-up trailer we examine today, Edison used bits of both movies and cut them together to show their similarities.  He interspersed the clips to highlight the similar characters and plot, and he even made new captions in the font used for Friends with Benefits to help make his mash-up seem like a more authentic mock trailer with funny captions like “same sidekick friend” “same wacky parents,” “same random gay jokes,” and “same camera angles.”

By putting clips from each film in the context of the other, the trailer transforms both of the original trailers, shedding new comedic light on the similar plotlines of these two predictable romantic comedies and making an even broader point about the lazy formulaic trend of the movie business. In Video Pipeline v. Buena Vista the Court acknowledged that there is valuable creativity fostered by choosing the snippets of a trailer, even while denying fair use to Video Pipeline (albeit because the trailer in that case was commercial nature whereas the one here is for entertainment purposes only).  Edison’s creativity is made all the more valuable  with the added captions and the obvious satirical and critical take on the two movies. Because of the importance of fair use to the fostering of creativity and the safeguard of free speech (parodies and criticism), the first factor favors fair use.

Factor 2: The nature of the copyrighted work. In his mash-up, Edison uses snippets from Friends with Benefits (the trailer) and from No Strings Attached (the trailer and other parts of the movie, e.g. the clip of Ashton Kutcher complaining that his father is dating his ex-girlfriend).  Because trailers are promotional and easily available it may not seem that they are commercial, but as it turns out they are derivative of the movie and protected by its copyright. Both No Strings Attached and Friends With Benefits are copyrighted and commercial in nature and so are the official trailers weighing the second factor against fair use.

Factor 3: The amount and substantiality of the portion used. The mash-up consists almost entirely of copyrighted materials but that doesn’t necessarily mean that Edison used an excess of copyrighted material to conjure up the work he was commenting on. He used enough materials to create a trailer-length mash-up to show rather than tell the audience of his opinions on the similarities of the two movies in a visual method of commentary that was both effective and funny.  Edison used just enough copyrighted materials from both films to accomplish this goal, and no clip lasted for more than a few seconds at a time. While the amount of copyrighted material comes out to a high percentage of the entire mash-up, each clip is short and on its own remains unsubstantial.  As a result, this third factor weighs in favor of fair use.

Factor 4: The effect of use upon the potential market. It’s possible that the mash-up could discourage moviegoers from paying to watch one of the movies by showing its audience that the movies seem to be interchangeable, potentially killing demand.  But we learned from Campbell v. Acuff-Rose that even when “lethal parody . . . kills demand for the original, it does not produce a harm cognizable under the Copyright Act.” So even if the mash-up discourages viewers from seeing Friends With Benefits in theaters or buying the DVD of No Strings Attached, that effect is not the concern of the uploader.  This fourth factor therefore seems to weigh in favor of fair use.  But since trailers are copyrighted as a derivative of the movie’s copyright we may want to examine whether Edison’s trailer replaces the derivative (namely the copyrighted trailers).  But unlike the copyrighted trailers for the two movies, Edison’s mash-up trailer is not intended to play in theaters or to replace the derivative works and so the fourth factor remains in favor of fair use.

With the court’s traditional emphasis on the first and fourth factors of §107 of the Copyright Act, and the critical nature of the mash-up, we believe that Blind Film Critic Tommy Edison’s mash-up is protected under fair use.

Fair Use of the Week: “Peanutweeter” – by “Shirley B”

In this fourth installment of the YaleLawTech Fair Use of the Week series, we would like to wish the Digital Millennium Copyright Act (DMCA) a belated tenth birthday. However, our installment this week is about Peanutweeter, a microblog devoted to humorous mashups of tweets and Peanuts comic strips. Tumblr, which hosted Peanutweeter, removed the microblog on June 16, 2011, after a DMCA takedown notice.

T. Jason Agnello is the creator of Peanutweeter, which mashed together Peanuts and tweets to create humorous images.  In essence, Agnello inserted funny tweets that he found in his browsing of Twitter into the speech bubbles of Peanuts characters.  Despite, or perhaps because of, the site’s growing popularity, Iconix Brand Group (Iconix), who owns the copyrights to the Peanuts comic strips and characters, requested that Tumblr remove the blog. Although Agnello believes that he has a good claim to fair use of the Peanuts characters, he feels that he has neither the energy nor the revenue to fight the takedown.

In this post, we will look at the DMCA’s notice-takedown-putback provisions. We will also examine Agnello’s fair use claim, and, from this perspective, look back at how the DMCA has affected creativity over the last decade.

DMCA: Notice, Takedown, Counter-Notice, and Putback
Section 512(g) of the DMCA requires service providers, like Tumblr, who are engaged in webhosting to adopt, reasonably implement, and inform their users of a policy that provides for the removal of user content when users infringe on another’s copyright. Although a service provider does not need to comply, it would expose itself to liability for copyright infringement.

When a company like Tumblr does comply, here’s how the process works.  In our example, John represents a mashup artist, and Jane represents the owner of a copyrighted work that John is using in his mashup.

Notice and Takedown

  1. John posts a copy of Jane’s work on his Tumblr-hosted website.
  2. Jane finds John’s posted copy.
  3. Jane notifies Tumblr, via Tumblr’s designated agent, that her work is being infringed upon.
  4. Jane sends Tumblr’s agent a sworn and signed notice, which includes:
    1. an identification of Jane’s copyrighted material, including “information reasonably sufficient to permit the service provider to locate the material,” and
    2. a good faith belief that John is using Jane’s copyrighted material without permission; e.g., without fair use.
  5. Tumblr takes down John’s content and tells Jane that it did so.

Counter-Notice and Putback

  1. John has the option of sending a counter-notification to Tumblr to put back his removed content.
  2. John, in his counter-notification, must swear that he has a good faith belief that Tumblr removed or blocked his content by mistake or misidentification.
  3. Tumblr must provide the counter-notification to Jane and then wait 10-14 days.
  4. If Jane does not respond, Tumblr must put back or unblock John’s material.

The Missing Fair Use Analysis
The most substantial problem that we find is that Iconix’s notice is missing any fair use analysis!  A redacted version of Iconix’s notice is provided here.

Many courts require that copyright holders conduct a fair use analysis before sending a takedown notice. It is not surprising that Iconix omitted this analysis because, when we balance the fair use factors, we find that they favor Mr. Agnello rather than Iconix.

In determining whether or not an artist has a valid claim to fair use, there are four factors that one must balance.  If an artist’s particular use of a copyrighted work is fair under these four factors, then the law excuses the artist’s copyright infringement.  See a prior post for an explanation of these factors, or visit the U.S. Copyright Office’s website.

First Factor: The Purpose and Character of the Use. First we look at the character of the use.  In the case of Peanutweeter, we have two different copyrighted works that are mashed up together with comedic effect: Peanuts and tweets. One could argue that the comic mashups are derivative works because they derive from others’ copyrighted material, i.e. Peanuts and tweets. However, Peanutweeter is transformative because it is more than the sum of its copyrighted parts. It imparts new meaning onto both tweets and Peanuts by placing them into new and interesting contexts.

Although Peanutweeter is certainly hilarious, we would not call it a typical parody, which courts have regarded as explicitly fair use.  Peanutweeter is not mocking or criticizing Peanuts, but sometimes it did poke fun at the Twitter-ers.  The fact that Peanutweeter, as a comic mashup, does not fall into any of the common fair use categories, does not make its character less transformative.

Next, we look at the purpose of the use. Peanutweeter was not-for-profit. It had no ads on its website, and it did not sell any of the comic mashups.  The creator of the site, Jason Agnello has stated, “I made PT for laughs.”  Based on the transformative character and not-for-profit purpose of Peanutweeter, the first fair use factor weighs in Agnello’s favor.

Second Factor: The Nature of the Copyrighted Work. Agnello used Peanuts and tweets in Peanutweeter. Peanuts comics are copyrighted and for-profit works. Tweets, however, are a different story. People have argued back and forth over whether or not these 140 character blurbs are protected material.  In our opinion, tweets are protected under copyright law.  If a work is fixed, original, expressive, and non-factual, its length has no bearing on whether or not the work is copyrightable.  Tweets are generally brief expressions of literary authorship based on what people post on their blogs.  That makes them copyrightable and, in all likelihood, removes them from the public domain.  (On the other hand, we think that tweets about facts, ideas, and unoriginal authorship are not copyrightable.) Because Peanuts and tweets are published and, in all likelihood, not in the public domain, this second factor weighs against Peanutweeter.

Third Factor: The amount and substantiality of the portion used. Peanutweeter used portions of Peanuts comics and others’ tweets.  Regarding the tweets, they were sometimes reproduced in their entirety, which goes against the spirit of fair use.   However, these tweets have inherently low quality and convey very little information.  Because they are so short, a critic generally needs to reproduce the entirety of the tweet to make a point or produce a comedic effect.  Regarding the Peanuts comic strips – the reason why Agnello’s microblog was removed – Agnello used an insubstantial portion of the content. Although he used Peanuts images, which is an important and central aspect to the comics, he used only one panel of what are typically four panel comics.  He used none of the text associated with the comics, which gives them humor and context.  When taking all this into account, this third factor neither favors nor disfavors Peanutweeter.

Fourth Factor: The effect of the use upon the potential market. Peanutweeter was not taking any business away from Iconix Brand Group.  It did not create a rival product or a replacement for Peanuts, nor did it decrease the market demand for the tweets.  It is unlikely that a rational person would accept a quote from Peanutweeter at face value.  Viewed from this perspective, Peanutweeter increased the demand for reading the original tweets and imputed nostalgia for Peanuts.  This fourth factor weighs heavily in Peanutweeter’s favor.

When balancing all of these factors together, we think that Agnello’s use was fair and that Tumblr erred in taking down Agnello’s blog. However, it is understandable why Agnello does not wish to counter the takedown notice. It is likely that Iconix, a large media conglomerate, will respond by filing a complaint in federal court.  It is unlikely that Agnello has the necessary resources to litigate his fair use claim, which is a defense to copyright infringement. The expenses of a drawn-out trial would burden Agnello.

Evaluating the DMCA’s Effect on User-Generated Content
Looking back at the last ten years of the DMCA, we can get some perspective on how it has affected content, especially on the internet.   Despite that Agnello has a very strong case for fair use, in all likelihood, Peanutweeter will remain gone for good.   This result is far too typical.  All but the most famous artists are unable to stand against the legal might of the large corporations that own copyright portfolios.  Your average artist is unaware of how to deal with a takedown notice. In a case like this one, where an ISP has removed content in response to a DMCA takedown notice, the artist can request that the content be put back up.  An artist can even sue because of improper removal.   However, for many artists, these takedown notices are intimidating.   The DMCA has put too much of the power in copyright disputes into the hands of copyright holders, which has certainly diminished the amount of creative content on the web. One simply has to look at YouTomb to get a perspective on how much content has been removed.

On the other hand, the DMCA has allowed ISPs, like Youtube and Tumblr, to flourish. By immunizing them from  copyright infringement when they comply with the notice-takedown-putback regime, the DMCA has given these content providers a great deal of freedom.  These providers can allow users to post content without first inspecting and approving it.  This means that providers don’t need to expend constant resources scanning for potential infringement.

At the moment, the DMCA’s effect has been mostly negative.  When copyright holders exercise their rights under the DMCA, content providers have more incentive to remove potentially infringing content than determine the correctness of a takedown notice.  The net result is to quash creativity.  Perhaps in the next decade, we will find generative versions of the DMCA that better promote creativity while still protecting the rights of authors.

Fair Use of the Week: “Bowling With My Beak” by Key of Awesome – by “chrisnofal”

Welcome to our second Fair Use of the Week, the YaleLawTech series where we analyze popular examples of fair use on the internet.  This week we examine Bowling With My Beak, a musical comedy sketch by Key of Awesome.

Key of Awesome is an online comedy show that spoofs celebrities, pop-culture, and the latest internet memes.  It satirizes pop icons such as Glee, Sarah Palin, and Justin Bieber.  This comedy show came onto the YouTube scene in October 2009.  Check out Bowling With My Beak here:

This mashup combines aspects of Adele’s music video Rolling in the Deep with characters and sound effects from the popular game Angry Birds.  Even though Key of Awesome labels their sketch as a parody, it is more than a parody because it mashes-up multiple copyrighted works: the music and video from Adele’s Rolling in the Deep and the characters and sound effects from Angry Birds.  It is the combining of multiple copyrighted works that makes this sketch a mashup rather than just a parody.

As an interesting side note, if Bowling With My Beak were a true parody, then it would be protected automatically by the preamble to § 107 of the Copyright Act, which lists “criticism” as a sanctioned fair use.  (Read our introductory post for more information about the Copyright Act.) Because we are dealing with a mashup, rather than a parody, we need to conduct a more extensive fair use analysis.

Fair Use Analysis
Courts balance four factors when determining whether it is fair to mash together multiple copyrighted works.  These factors are (1) the purpose and character of the use, (2) the nature of the copyrighted works, (3) the amount and substantiality of the portions used, and (4) the effect of the use on the potential market for, or value of, the copyrighted works.  If the factors weigh in favor of fair use, then a mashup artist is not liable for copyright infringement. (Check out last week’s posting about the song Mash it Up by artist Norwegian Recycling to see how we balanced these factors.)

Factor 1: The purpose and character of the use. A good question to ask when examining this first factor is whether the mashup transforms the copyrighted works by adding new expression or meaning.  A transformative work is protected by fair use, whereas a derivative work is not.  A second question to ask is whether the mashup is commercial or non-commercial.

Like a derivative work, Bowling With My Beak is based on one or more underlying copyrighted works.  Unlike a derivative work, this mashup adds new expression and meaning to the underlying works. Rachel McPhee, who plays Adele, adds new expression to Rolling in the Deep because she lip-syncs to vocals by Anastasia Douglas and lyrics by Mark Douglas with Michael Reisman.  Key of Awesome brings new meaning to both Angry Birds and Rolling in the Deep because the mashup likens Adele, someone in the physical world, to an Angry Bird, something in the virtual world.  These transformative aspects favor fair use.

Although Bowling With My Beak is more than a parody, it would be wrong to say that elements of parody are absent.  Having Rachel McPhee, an Adele look-alike, play Angry Birds while sitting in a chair is clear parody because it exposes the mediocrity and pretentiousness of Adele’s serious music video.  McPhee lip-syncs, “Water glasses are strewn about the room / Got to make a plan to do the dishes soon / This cocaine ninja is smashing dishes / My drummer was naughty so I made him face the wall.”  The lyrics also expose the addictive hold that Angry Birds has over gamers, such as in the lines “I have to get three star-ee—ars / And I’m playing it in my sleep / This 99-cent app purchase is destroying my life.”  Like a parody, this mashup forces us to examine serious issues from a comic standpoint, which makes the use of the underlying works seem fair.

Lastly, we must examine whether the use is commercial or non-commercial.  A commercial use is one that earns a profit.  In short, fair use is not a license for corporate theft. Here, Key of Awesome distributes their mashup for free on YouTube, but charges $1.29 for their music-only version of Bowling With My Beak on Apple’s iTunes. Because the use is not exclusively commercial, it splits our analysis.  When taking all of this into consideration, this first factor favors fair use for the YouTube video but against fair use for the iTunes version.

Factor 2: The nature of the copyrighted work. The second factor favors scientific, factual, biographical, or historical works more than works of entertainment.  This factor weighs against fair use when the underlying copyrighted works are published and sold.  Here, both Rolling in the Deep and Angry Birds are published, sold in the marketplace, and created for entertainment purposes.  This means that this second factor weighs against fair use.

Factor 3: The amount and substantiality of the portion used in relation to the copyrighted work as a whole. The third factor focuses on whether the mashup artist has taken more than is necessary to make a transformative work.  A mashup artist must take something from a copyrighted work to make a mashup, but not so much as to copy the original work verbatim.  The artist may appropriate only enough to remind the public about what he or she is commenting on.

Here, Key of Awesome takes very little from Rolling in the Deep and Angry Birds.  They imitate the likeness of the Adele’s music video, rather than copying it, and they depart from the video near the end of their mashup.  Key of Awesome uses stuffed animals, rather than computer graphics, to parody Angry Birds.  Bowling With My Beak has a novel melody that combines the tune of Rolling in the Deep with sound effects from Angry Birds.  Anastasia Douglas uses her own voice to sing new lyrics to this creative melody.  Because Key of Awesome takes no more than is necessary to create a successful mashup, this third factor favors fair use for both their iTunes (paid) and YouTube (free) version.

Factor 4: The effect of the use on the potential market for, or value of, the copyrighted work. The fourth factor focuses on whether the use of a work threatens the incentives for creativity that copyright law tries to protect.  If a use is complementary to, rather than a substitute for, the copyrighted work, then the use does not harm the market for the copyrighted work and the use is regarded as fair.

It is clear that the use of Angry Birds does not harm the potential market for the Angry Birds application.  Quite the opposite, Bowling With My Beak can remind gamers to buy the latest version of the application, Angry Birds Rio. For similar reasons, Bowling With My Beak is not a substitute for Rolling in the Deep.  The mashup has entirely different lyrics and vocals, departs from Adele’s music video, and intertwines sound effects from Angry Birds with music from Adele’s song. Bowling With My Beak does not fulfill the demand for Rolling in the Deep or Angry Birds.  Because there is little harm to the potential market for the underlying works, this fourth factor favors fair use for both their iTunes (paid) version and YouTube (free) version.

When weighing all of the above four factors together, we think that both versions of Bowling With My Beak are protected by fair use.  The interest in dissemination of this mashup outweighs the possible harm to incentives for producing creative works.  The mashup comments on some serious social issues through parody.  Adele and the developers of Angry Birds might be less than eager to license their works for ridicule, which is why protecting Bowling With My Beak through fair use is very important.

Mashup: A Fair Use Defense – by “Ryan B”

Mashup, a style of music that combines samples from various songs, would appear to many to be the epitome of copyright infringement. In fact, a 2005 court case, Bridgeport v. Dimension, deemed the unauthorized use of even one second of a sample to be copyright infringement. Since mashup blends several samples over the course of any one song, it must certainly be copyright infringement. Right? Not so fast.

Judges do make mistakes, and no court decision is set in stone, so it is worth considering whether a legitimate legal defense could be made on behalf of the mashup artist. In establishing such a hypothetical defense, let’s turn to the fair use doctrine, which permits the unauthorized use of copyrighted materials under certain circumstances.

Fair use is a legal doctrine meant to protect works deemed valuable for society, often shielding works involving first amendment expression, such as parodies. When reviewing a fair use defense, courts consider such things as how “transformative” the work is, the substantiality of the portion used, and the effect on the market for the original work. With this in mind, could a fair use defense be made on behalf of the mashup artist?

I will now show one reason why mashup could be considered fair use. While this particular argument will certainly not apply to all mashup music, I think that it at least demonstrates that Bridgeport’s blanket prohibition of sampling does not leave space for the sort of legitimate behavior that the fair use doctrine was meant to protect.

For this hypothetical fair use defense, let’s delve into the transformative nature of mashup music. To start, mashup artists frequently splice up samples while editing the pitch, tempo, and the mix of the original work. At the end of the day, however, samples are usually meant to be recognizable. As a result, the extent of these edits is typically held within limits.

Nonetheless, mashup can be incredibly transformative for another important reason. By pairing up samples from different songs, mashup can provide an entirely new context for the original works. In this way, mashup artists can provide critical commentary on those works, expressing their own perspectives on the songs being utilized. This can spur valuable conversations that construct new perspectives, a similar process to that triggered by an SNL parody, for example. As a result, mashup can yield the sort of first amendment expression that the fair use doctrine was meant to protect.

To see this argument in action, consider the mashup artist, Milkman’s song “All About It,” which samples the vocal track from Pitbull’s “Go Girl” (listen below; the Pitbull vocal track starts about fifteen seconds in to Milkman’s song). Pitbull originally blended his vocal track with an instrumental that had a dirty feel through its use of a base drum and a repeating flute line. Milkman, however, eliminated this “dirty” sound entirely by pairing up Pitbull’s vocal track with a 90s pop song, Real McCoy’s “Another Night.” The pop context that Milkman provides the Pitbull vocal track reveals how silly Pitbull’s lyrics really are. In this way, Milkman’s sampling of Pitbull’s song acts as a sort of critical commentary on that work, and therefore could be considered worthy of the type of first amendment protection that the fair use doctrine was intended to offer.

Pitbull – Go Girl

Milkman – All About It

Do mashups always provide critical commentary on the samples they use? Probably not. Nonetheless, the Milkman example does seem to show that a mashup could be worthy of fair use protection under certain circumstances. As a result, the Bridgeport decision, which deems all sampling to be copyright infringement regardless of the particular use, seems to be going too far.