"Fair Use" in Music: It’s a Wonderful World for Rap Music
 
October 13, 2003
 
Stephen "Steve" Young- Boston

The “fair use” concept is perhaps the most conceptually difficult, actively litigated and least understood concepts in copyright law. In the recent case of Abilene Music, Inc. v. Sony Music Entertainment, Inc., CCH Copyright Law Dec. ¶ 28,628 (D.C. S.D.N.Y., June 18, 2003), the United States District Court for the Southern District of New York once again addressed the thorny fair use issue, this time as applied to a rap artist’s use of elements of the old standard, What a Wonderful World.

Plaintiffs, who owned the copyrights in the words and music to the song, What a Wonderful World, brought suit against the defendants for the unauthorized use of the melody and the well-known first three lines of the song:

I see trees of green, red roses too,

I see them bloom, for me and you,

And I think to myself, what a wonderful world.

The mere repeating of these words conjures up for many the version of this old tune popularized by the great Louis Armstrong. As the court in the Abilene Music case stated, these lyrics, and those that follow, “celebrate nature and the beauty of life . . . [in] a pastoral world.” The infringed version, however, is quite different.

The defendants, led by Dennis Coles p/k/a Ghostface Killah, borrowed a recognizable version of the melody and, with several modifications, the first three lines from Wonderful World to kick off, with references to marijuana use, a rap piece entitled The Forest:

I see buds that are green, red roses too,

I see the blunts, for me and you,

And I say to myself, what a wonderful world.

The rap song then descends into a description of a dark world in which well-known cartoon characters are found engaging in various forms of anti-social behavior. The fact was a given in the case that an infringement of both the words and melody had occurred as a result of the parties’ stipulation of the infringing nature of the rap song. The issue was whether defendants had a valid defense to their infringing activity. The defense they raised was fair use, claiming that the infringing material was part of a rap parody of the old standard song.

As the Supreme Court has stated, “[f]rom the infancy of copyright protection, some opportunity for fair use of copyrighted materials has been thought necessary to fulfill copyright’s very purpose, ‘[t]o promote the progress of science and useful arts . . . .’” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 575 (1994), quoting from U.S. Const. Art. I, § 8, cl. 8. A common definition of “fair use” that has been applied in copyright law is “a privilege in others than the owner of a copyright to use the copyrighted material in a reasonable manner without his consent, not withstanding the monopoly granted to the owner by the copyright.” H. Ball, The Law of Copyright and Literary Property, 260 (1944). As the Supreme Court has said, the fair use doctrine “permits [and requires] courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which the law is designed to foster.” Stewart v. Abend, 495 U.S. 207, 236 (1990) (internal quotation marks and citation omitted).

Congress codified the fair use defense into the United States Copyright Act in 1976 when it amended the original 1909 law to specifically provide that “the fair use of a copyrighted work . . . is not an infringement of copyright.” 17 U.S.C. § 107. Congress did not, however, delineate precisely what uses constitute fair use. Instead, it simply listed six examples of uses that would constitute “fair use.” Those examples are “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship or research.” Id.

In particular, parody has been given fair use protection, as either “criticism” or “comment” both before and after codification of the fair use defense into the Copyright Act. As applied to copyright law, the key element of a work constituting parody subject to protection “is the use of some elements of a prior author’s composition to create a new one that, at least in part, comments on that author’s works.” Campbell, 510 U.S. at 580. The issue for the court in Abilene Music, therefore, became whether defendant’s use of copyrighted material from What a Wonderful World constituted protected parody. To answer the question, the court turned to the fair use provision in the copyright law to determine and apply the guidelines Congress had given for determining whether a use was protected under the fair use doctrine.

After setting forth the six examples of specific uses of copyrighted materials that constitute fair use, Congress went on to list four factors for courts to consider, among others, in determining whether a particular use is a protected fair use. Those factors are: 1) the purpose and character of the use; 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. In codifying the four-factor guideline for courts to use in applying the fair use defense to a particular set of facts, Congress did not declare that any one factor should be given greater weight than any other factors. Rather, as the Supreme Court has said, the four factors “are to be explored, and the results weighed together, in light of the purposes of copyright.” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 578 (1994).

The decision in Abilene Music, therefore, rested upon the court’s weighing the four factors to determine whether defendant’s parodical use of What a Wonderful World should receive protection under the fair use doctrine. In general, the fair use analysis as applied to parody determines whether the new work actually transforms the original work into a new “original work of authorship” subject to its own copyright protection, thus being less likely to negatively impact the market for the original work and thereby lessen the protection otherwise provided to that work by its own copyright. See Abilene Music v. Sony Music at p. 36,028.

Space here does not permit a detailed review of the court’s fair use analysis in Abilene Music. Suffice it to say that in performing its analysis, the court focused primarily on factor number one, the purpose and character of the use, and determined that Ghostface’s work was in fact a parody of What a Wonderful World. Having so determined, the court then stated that “once a work is determined to be a parody, the second, third and fourth factors are unlikely to militate against the finding of fair use.” Id. at 36,029. Accordingly, having determined from its analysis that The Forest was indeed a transformative parody of Wonderful World, the court concluded that defendants’ use of material from Wonderful World was a protected fair use. In so concluding, the court stated that “[d]isallowing this use of Wonderful World would contravene copyright’s purpose of allowing new works to acknowledge, influence and react to what has gone before, and would allow copyright owners to quash parodies and other forms of transformation and comment of which they do not approve.” Id. at 36,032.

Thus, whether it is rap or rock, swing or soul, if the new work transforms the old work into an original work of authorship, its transformation may be protected fair use.

For more information, e-mail Stephen Young at steve.young@hklaw.com, or call toll free, 1-888-688-8500.