Vondran Legal® Fair Use Insights Want to work with music in your films, videos, TikToks, YouTube, Vimeo movies and other creative works? BE CAREFUL. Some creative artists may be willing to FIGHT YOU, even if you believe you have a "fair use" under copyright laws. A legal battle can be both lengthy and expensive. Call us to discuss representation at (877) 276-5084.

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Introduction

In the dynamic world of music and video production, creativity knows no bounds. Producers frequently draw inspiration from a wide array of sources, including the works of legendary artists and iconic bands. While incorporating snippets of pre-existing music or creating remixes may seem like an exciting avenue to enhance a project, it's a path fraught with legal peril. This is especially true when dealing with well-known artists, bands, and groups that are notoriously protective of their intellectual property. Copyright law exists to balance the rights of creators with the interests of the public, allowing for limited “fair use” of copyrighted material in certain circumstances. However, the application of fair use is highly nuanced and often subjective. Even when a producer believes they are within their rights, asserting fair use can be a costly gamble if challenged.

The stakes are particularly high when dealing with artists or estates known for their aggressive enforcement of copyright protections. In such cases, the legal costs and potential damages can far outweigh any artistic or commercial benefits derived from the unauthorized use of copyrighted material. One high-profile example illustrates this point vividly: the case involving Nicki Minaj and Tracy Chapman. In this case, Minaj used portions of Chapman’s song “Baby Can I Hold You” in an unreleased track that eventually leaked online. Despite Minaj's argument that the use of the song fell under fair use and was part of the creative process, Chapman pursued legal action. 

The dispute culminated in a settlement where Minaj paid Chapman $450,000.

Attorney Steve® Tip: This case underscores a critical lesson: even if you believe your use of a copyrighted work qualifies as fair use, you may still face costly litigation and financial repercussions if the rightsholder disagrees.

Many prominent artists and their estates are known for their stringent stance on unauthorized sampling, remixing, or use of their music. The estates of The Beatles, Prince, and Led Zeppelin, for instance, are particularly vigilant in protecting their works. These artists have established legacies, and their music holds immense cultural and financial value, prompting aggressive legal action against perceived infringements. For producers, even an inadvertent violation can lead to lawsuits that drain resources and tarnish reputations. The challenge lies in navigating the complexities of copyright law while fostering creativity. Understanding the distinction between what constitutes fair use and what crosses the line into infringement is crucial.

For example, parody and commentary often qualify as fair use, but using copyrighted material for purely commercial purposes without transformation rarely does. Even in scenarios where fair use might apply, proving this in federal court can be a lengthy and expensive process. Producers must also consider that avoiding unauthorized use isn't just about legal compliance; it's about fostering ethical practices within the industry.

Seeking permission or licensing music shows respect for the original artists and their work. It can also open doors to collaboration and goodwill, which can be far more valuable in the long run than the short-term gains of unauthorized use.

In this blog, we will delve deeper into the nuances of copyright law, exploring strategies for legally incorporating music into your projects and the risks of failing to do so. Whether you're an emerging producer or an industry veteran, understanding these principles is essential to protecting your career and creative vision.

The Four Fair Use Factors

Here are the four factors a court MUST consider in every copyright infringement lawsuit where fair use is raised as a defense.

§107. Limitations on exclusive rights: Fair use

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 portionused 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.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors." 

Attorney Steve® Tip.  No SINGLE FACTOR is consdired dispositive.  The courts will look at all four of the above factors (each of all has a vast body of federal case law interpreting these factors in relation to what type of content is at use. For more help, review this important resource where you can search for copyright fair use decisions in your federal circuit, and do so by topic area.  This will send you to some very helpful cases to review.  See Copyright Office Fair Use Index.

Tracy Chapman vs. Nicki Minaj Case

This was a case where the court in the 9th Circuit (which covers California, Arizona, Washington, Oregon, Utah and other states) held that Nicki Minaj's use of Tracy Chapmans song was a "fair use" basically because she only used it to create a demo track that she was hoping would inspire Tracy Chapman to agree to collobate for a new hit song.  The court found there was a fair use applying each of the four factors.  However, there was still a dispute about distribution of the music which led the Defendant Nicki Minaj to make a Rule 68 offer of judgment to resolve the case.

Here are a few snippets from the case:

First Factor - Purpose and Character of the Use

"The first factor, 17 U.S.C. § 107(1), requires a court to consider “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.” The central purpose of this inquiry is to determine whether and to what extent the new work is “transformative.” Campbell, 510 U.S. at 579. The Ninth Circuit has adopted a two-step analysis of this first prong. Furie v. Infowars, LLC, 401 F. Supp. 3d 952, 972 (C.D. Cal. 2019) (citing to Kelly v. Arriba Soft Corp., 336 F.3d 811, 818 (9th Cir. 2003)). First, courts ask whether the use of the work is commercial in nature. (Id.). Second, they ask whether such use is transformative. A use is considered transformative only where a defendant changes a plaintiff's copyrighted work or uses the plaintiff's copyrighted work in a different context such that the plaintiff's work is transformed into a new creation. (Id. citing Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1164 (9th Cir. 2007)). The more transformative the new work, the less important the other factors, including commercialism, become. Kelly, 336 F.3d at 818.

Commercial use is a “factor that tends to weigh against a finding of fair use.” Monge v. Maya Magazines, Inc., 688 F.3d 1164, 1176 (9th Cir. 2012). Yet the crux of the distinction is not whether the sole motive of the use is monetary gain, but whether the user stands to profit from exploitation of the copyrighted material without paying the customary price. Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 562 (1985).

Second Factor - Nature of the Copyrighted Work

"The second factor that § 107 instructs courts to consider is “the nature of the copyrighted work” which recognizes the fact that “some works are closer to the core of intended copyright protection than others.” Campbell, 510 U.S. at 586. Lyrics and music created by various musicians are creative in nature and at the core of copyright's protective purpose. Chapman's work is a musical composition, which is the type of work that is at the core of Copyright's protective purpose. This factor thus weighs against a finding of fair use."

Third Factor - Amount and Substantiality of the Portion Used in Relation to the Copyrighted Work as a Whole

“[T]his factor calls for thought not only about the quantity of the materials used, but about their quality and importance, too.” Campbell, 510 U.S. at 587. When the extent of the copying is considered with the purpose and character of the uses, the amount and substance of the copies are justified. (Id. at 586–87). Indeed, this factor will not weigh against an alleged infringer, even when he copies the whole work, if he takes no more than is necessary for his intended use. Kelly, 336 F.3d at 820–21. As the Supreme Court has recognized, this factor necessarily overlaps somewhat with the first factor — the “extent of permissible copying varies with the purpose and character of the use.” Campbell, 510 U.S. at 586–87.

Fourth Factor - Effect of the Use Upon the Potential Market for or Value of the Copyrighted Work

The final statutory inquiry considers the effect the allegedly infringing use has upon the market for, or value of, the copyrighted work. 17 U.S.C.A. § 107(4). As the ability to reap financial rewards from creative endeavors is a critical component of the copyright regime, the Supreme Court has noted that this factor is "undoubtedly the single most important element of fair use.” Harper & Row Publishers, Inc., 471 U.S. at 566. Courts in this Circuit have reasoned the same. Lewis Galoob Toys, Inc. v. Nintendo of Am., Inc., 964 F.2d 965, 971 (9th Cir. 1992). At this stage, courts ask whether the copy brings to the marketplace a competing substitute for the original, or its derivative, so as to deprive the rights holder of significant revenues because of the likelihood that potential purchasers may opt to acquire the copy in preference to the original. Estate of Smith v. Cash Money Records, 253 F. Supp. 3d 737, 752 (S.D.N.Y. 2017).

The Court's Conclusion

On balance, the Court finds that Maraj has met her burden of showing in the United States District Court Central District of California that there are no genuine issues of material fact and that she is entitled to a finding of fair use as a matter of law. Maraj's creation of the new work for the purpose of artistic experimentation and to seek license approval from the copyright holder thus did not infringe Chapman's right to create derivative works. 

Chapman has thus failed to meet her burden in proving Maraj's infringement. As a genuine dispute of material fact exists as to the distribution of the song, Chapman is not entitled to summary judgment on that portion of the infringement claim. For the reasons discussed above, however, this Court finds that any liability for Maraj's creation of the song is barred by the fair use doctrine. The Court therefore DENIES Chapman's Motion for Partial Summary Judgment and GRANTS Maraj's Motion for Partial Summary Judgment.

The case eventually settled for 450k.

DontSample.me website

If you are a video or music creator or producer, and you plan on using UNLICENSED and UNAUTHORIZED audio clips, music clips, samples, beats, rhythm, or other protected aspects of an artists content, make sure you are at least aware of the following talent who may be keeping a very close eye on the internet and on social media websites looking for potential infringers, and a quick settlement.  This is a site I came across in my research on this topic.  DoNotSample.me.

According to their press page:

"Attention all producers… A website has been created for the sake of preventing unintentional copyright infringement by up-and-coming producers. The website is titled DontSample.Me, and it was created by Morgan Crozier. Crozier has developed a list of 2,878 musicians, including many popular producers, whose work is illegal to sample or remix. An independent producer choosing to make these particular edits risks a DMCA (Digital Millennium Copyright Act) takedown notice. This website is more useful than ever, as we constantly see aspiring producers being punished for uploading samples and remixes of other artists' work. The battle between major record labels and independent producers on SoundCloud can potentially be averted if producers take the time to read websites such as DontSample.Me." (emphasis added).

Another music news site, YOUREDM, noted:

"The recent copyright crackdown has undoubtedly frustrated many independent and up and coming artists. DMCA takedowns on Soundcloud that were once semi-regular have become the new norm. However, despite the pressure from big labels, a new website is offering a simple solution to the copyright war – just don't sample it. DontSample.me is the brainchild of Morgan Crozier, and is proclaimed to be, “the most cohesive list of musicians that are signed to major labels who are known to take action against people using their work, even if they're in the right.”

Since 2004, Vondran Legal® and Attorney Steve® Vondran have helped resolve numerous music and video infringement disputes, including fair use opinion letters and analysis, DMCA notice and counternotification, subpoena response, and arbitration, mediation, and litigation in the field of music and film law. Contact us for more information at (877) 276-5084 or fill out our contact form on the right side of this page.