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Fair Use Doctrine and Song Sampling

Musicians have been sampling each others music for decades. In fact, some musicians make their living sampling from other music and creating new sounds. For example, the solo artist Girl Talk mixes elements of hip-hop and rock songs to make a completely new sound. Girl Talk's only member is engineer-turned-DJ Greg Gillis. Mr. Gillis has so far released five albums, which are offered for free on his website, and each sampling hundreds of songs. For each sample of a song he uses on his albums, Mr. Gillis has sought no license and pays nothing to the original owners in the copyrighted work.

So why hasn't this famous DJ been sued for copyright infringement?

As we have discussed, copyright infringement is the use of works protected by copyright without permission. This includes infringing on the copyright holder's exclusive right to make derivative works of his/her art. With this in mind, it is no surprise that many people believe Mr. Gillis' songs are illegal and that the release of each album "provokes" copyright owners. Perhaps the reason why hasn't he been sued for copyright infringement? At least part of the reason is his strong legal argument that the "fair use" doctrine applies to his work. Mr. Gillis has argued that he has transformed the copyrighted materials into work that creates a new, non-infringing use.

Fair use is an exception to the exclusive right granted by copyright law to the author of a creative work and permits limited use of copyrighted material without acquiring permission from the rights holders. Traditional examples of fair use include commentary, search engines, criticism, parody, news reporting, research, teaching, library archiving and scholarship, but these are not the only possible "fair uses."

According to the Copyright Act of 1976, 17 U.S.C. § 107, the "fair use of a copyrighted work is not an infringement of copyright." In determining whether the use made of a work in any particular case is a fair use the four factors the court considers are:

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 portion used 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.

Mr. Gillis' work arguably qualifies as fair use because: a.) his work is transformative, using others' creations in a new and different way (which weighs in his favor as to the first factor; b.) the amount of each song he samples is usually small (weighing in his favor as to the third factor); and c.) he may have a good argument that his creations have no effect on the market or value of the songs he samples, meaning that people are not likely to buy his songs instead of the songs he samples (helping him as to the fourth factor). One factor working against him is that he is using the samples in a commercial manner, selling the songs and getting paid for live performances.

Fair use is a complicated portion of U.S. Copyright Law. Feel free to contact the experiencedOrange County copyright attorneys at Myers Berstein Law today to discuss whether you use of another's work is "fair use" or vice versa.

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