Lessig on Fair Use
Fair use is one of the fast-moving, shape-shifting targets in American law. It’s where copyright and intellectual property bump up against a quickly democratizing mediascape. At its core, the principle of fair use provides for the limited use of copyrighted material — without securing the permission of the copyright holder — for the purposes of commentary, journalism, parody or educational purposes. But the yardstick for how much “borrowed” material is covered in various media and for various purposes has been hotly debated in courts, legislatures, publishing houses and studios.
What applies to a book might not always apply to a newspaper column, a political speech or a television show. What applies to a blockbuster movie might not necessarily apply to a small-time DJ. Meanwhile, as the lifecycles of new technologies become shorter and faster, allowing new means of acquiring and creating media available to ever-greater swaths of the planet, creative expression has raced ahead of efforts to define and control it.
Legal scholar and author Larry Lessig is considered a leading advocate of “free culture.” He has written several books championing the complete reimagining of copyright law in the United States. He is a cofounder of Copyright Commons and a professor at Harvard Law School. He appears in the film COPYRIGHT CRIMINALS.
Independent Lens asked Lessig a few common (and not so common) questions about how fair use might apply in the arena of sampling.
Independent Lens: Hypothetically, I could quote several passages from Sarah Palin’s book in my book, with attribution. Why can’t musicians quote a hook from another song and just attribute it?
Larry Lessig: For no good reason. Industry practices developed to require permission. But the practice of culture — especially once democratized — requires just attribution in my view.
IL: Why does the duration of a sample of another recording not matter, as it does for print? Aren’t you safe if you sample 20 seconds or less?
LL: I don’t think length matters. The nature of the use matters. Are you criticizing it, building a collage with it, or simply finding sound to fill a gap?
IL: Then is it really possible to copyright just one or two notes? Even if those who sample and remix a given “borrowed” note bend its pitch and layer lots of other sounds over and under it?
LL: It is possible, but not likely. Originality is the key.
IL: Say you sample a 4-second portion of my song when you create a new remix, and in the finished product, loops of my snippet constitute 25 percent of the composition. Couldn’t you just arrange to pay me 25 percent of your proceeds from the sale or performance of your composition?
LL: You can’t in the sense that you can’t do it automatically. Of course, the copyright owners could agree to this, but the sampler has no right to an automatic scheme for payment.
IL: Does it matter if the composer does not sell the music s/he remixes using copyrighted samples?
LL: In my view, sampling is fair use. Fair use should include commercial use. So it shouldn’t matter. But if there is nothing sold, then the argument for fair use is even stronger.
IL: Record labels are struggling. In your opinion, are they helping or hurting their cause by going after samplers? How could sampling help them, if at all?
LL: Their behavior is completely self-destructive. We’re entering an era where the successful band will be the band that successfully gets the audience on stage. Sampling is the cheapest way to do that. Noncommercial sampling should be a no-brainer for this industry.
IL: You say in your book REMIX that “. . .sounds are being used like paint on a palette. But all the paint has been scratched off of other paintings.” Except in the case of music, sampling doesn’t damage the original, like scraping a painting would. Is there an argument against sampling that says it somehow diminishes the original?
LL: In the 2 Live Crew case, certainly the copyright owner complained that the sample harmed the original. But I think the real claim is not harm, but potential profit: If the copyright owner gets to control the samples, he gets more potential profit.
IL: Say I’m writing a book. I decide not to use a computer or typewriter or pencil. Instead I ransack my personal library and cut out the individual words and short phrases (let’s say no longer than three words) in the book that I want to rearrange into my own original creation. Then I make 20,000 photocopies of it and bind it and sell it. Could the copyright holders of those chopped-up books sue me for it? (For argument let’s assume one of those short phrases isn’t something universally recognizable like “Call me Ishmael.”)
If the words are just words — meaning that they, in the excised form, do not capture some creative product — then no problem at all.
IL: What would you say is the single most common misunderstanding about the application of fair use principles when it comes to music sampling?
LL: [The most common misperception is] that there’s some mechanical formula. Would that we were so lucky.
IL: You dedicated your book to Jack Valenti, one of the Digital Millennium Copyright Act’s greatest champions. Was that a joke?
LL: No, not at all. Valenti was obsessed with the culture of criminality the Internet produces. So am I. But his solution was to wage an ever more vicious war against the enemy. Mine is to find a way to sue for peace. He was a very decent and brilliant man. I have enormous and genuine respect for him.