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.