Nonprofit fair use more fair?

What is the name of your state (only U.S. law)? New York

Music seems to be the medium least "fair" in terms of fair use. However, I'm working on an album that draws many non-repeating (or infrequently repeating) samples, primarily from film, TV, and audiobooks, though there are a number of non- or infrequently repeating musical themes (but not samples) drawn from popular music, and even then, transformed. No argument can be made for parody, though the intellectual freedom debate is omnipresent on the album.

Is the act of releasing this album illegal, or simply profiting from it?

Is accepting donations on my site (or through a third-party service), while not producing any physical product, nor implementing a paywall, possibly damaging?

Is it possible to be sued for more than I made from the project (presumably nothing, but possibly donations)? Is it possible to be sued for more money than I have (normally none)?

And most importantly: Is there any way to strengthen my argument for fair use, preferably beyond reasonable legal action?

Thanks!

. There is no fair use due to it not being sold or your business being a non-profit. Copyrights, in the simplest terms means the owner of the rights has the right to control, limit, or prevent anybody from copying their work, with a few exceptions. If you copy their work without it falling within one of the exceptions, it is copyright infringement. I see no exception your work would fall under.

Is it possible to be sued for more than I made from the project (presumably nothing, but possibly donations)?

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absolutely

Is it possible to be sued for more money than I have (normally none)?

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given your status of wealth: absolutely

You really need to read up on fair use. It does not mean what you think it means.

Also realize that Vanilla Ice was sued by David Bowie for using the baseline from Under Pressure in his hit; Ice Ice Baby.

It was settled out of court but it was likely Vanilla Ice would have lost in court.

Ice Ice Baby didn't have a non-repeating sample, the baseline was under the entire song and was the most recognizable/distinctive thing about it.

Thanks for pointing that out, ecmst12. I tried to post something similar to the following yesterday, but there seems to have been an error, as it's not here...

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I had hoped that the description in my first post would illustrate I'm at least a bit knowledgeable about fair use as a defense. While I'm interested in challenging the increasingly conservative IP laws with my album, I would like to maintain the legal high ground.

If these are the rules governing fair use:

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.

Then shouldn't my album be legally defensible in the following ways?:

1. It's a non-profit work. While artistic/fictional, it does assert a definite thesis about IP, perhaps strengthening the educational argument.
2. The album is NOT feces-on-the-Mona-Lisa, but neither is it parody. Every song, regardless of the samples/motifs used, bears no resemblance to any previous work. The album is a unique cultural contribution that makes use of brief sampled material.
3. All samples and motifs are short--less than a few seconds. In the case of samples, which all come from movies, tv, and audiobooks, the samples do not draw from the "heart" of the work. In the case of the musical motifs, they are all non-repeating, and transposed, stretched, and varied from their original orchestration.
4. Since samples all come from non-musical media and the musical motifs are not sampled, I find it hard to imagine my work would have a negative impact on any previously copyrighted work.

Any help on how I could ensure I maintain that "legal high ground" would be appreciated. Thanks again!

Hopeful Joe, if you wish to take the "legal high ground," you may be wise to concentrate less on your defenses to a possible copyright infringement suit and concentrate more on getting permission to use the copyrighted material so you can avoid a copyright infringement lawsuit.

Weird Al Yankovic borrows substantially from copyrighted material and he is able to do this because he gets permission from the artists beforehand, and he always pays royalties. This is a major reason for his long-running success. Although Yankovic's work is clearly parody and his work could potentially be seen by a court as a fair use of copyrighted material as parody, it is far more costly to have to defend against a lawsuit (even if you eventually win the suit) than it is to simply go through proper channels to obtain legal use of the copyrighted material.

Fair use is an especially tough defense because there are only guidelines for fair use. The ultimate decider of whether a use is fair or not is left to a court. Fair use is measured by a court on, among other things, the four factors you mentioned, but these factors can be weighed differently depending on the facts and circumstances of use.

Certainly a nonprofit use will weigh more heavily in a defendant's favor than a commercial use, but even a nonprofit use will not prevent an action from being decided for the plaintiff. The amount of a copyrighted work used is not always the determining factor either. A few seconds can be enough to identify another's work and lead to a lawsuit. You can look to George Harrison's "My Sweet Lord" suit, the Grand Upright Music Ltd suit (recently mentioned in another thread).....the list of copyright infringement losers is extensive.

And most plaintiffs, if they have decided to challenge a use of their material in court, will probably be armed with an attorney or two who know how to win. You, on your own against these attorneys, may not have a prayer of succeeding with your "conservative IP law" challenge. If there is a judgment against you, your current AND future assets can be attached and your wages garnisheed, and court judgments tend to play havoc on one's credit reports.

So, again, to take the legal high ground, seek out and get permission from the copyright holders. This is not only the legal high ground, but also the legally wise thing for you to do.

Good luck.

Calculating the risks/rewards and taking the cheaper route is NOT the legal high ground.

Oh. So you agree with my advice here, tranq?


There is a video on the Copyright Law's fair use provision that I have actually linked to in past threads and have applauded. It was created for The Center for Internet and Society at Stanford Law School by Professor Eric Faden of Bucknell University. The name of the video is "A Fair Use Tale" and it can be accessed for view at cyberlaw.stanford.edu and it is also available on YouTube. It not only details the factors a court will look at in determining fair use, it does so by using copyright-protected Disney characters and clips from Disney films (as a satiric salute, in part, to Disney's zealous pursuit of infringers on all things Disney). This seems likely to match your particular bent on IP law, tranquility, and it is a good overview of the law and what is often looked at as the extremes of the law.

One additional piece of advice for Hopeful Joe - if you want to avoid a lawsuit, permission is the best way to do it. However, if you wish to plunge ahead and see how far the "fair use" provision will stretch, I still suggest you have your resulting work reviewed by a professional prior to publication. Infringement suits are expensive and I think it wisest to avoid the possibility of them whenever possible. That said, I also support creativity and, if you are willing to take on what may be for you a costly challenge to your uses, I wish you the best with it.

Any help on how I could ensure I maintain that "legal high ground" would be appreciated. Thanks again!

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sure.

DON"T STEAL OTHERS WORK

ecmst12 Ice Ice Baby didn't have a non-repeating sample, the baseline was under the entire song and was the most recognizable/distinctive thing about it.

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well, actually it played for 1:05 out of 4:27 in 5 different sections of the song with the "hook" playing from 16-18 seconds each.

But answer me this: how many times do you have to use another's work before it becomes illegal. The only difference between using it for 5 seconds and 65 seconds is it is more likely to be recognized in the longer use. It doesn't make it any more or less legal.

quincy said:

Oh. So you agree with my advice here, tranq?

There is a video on the Copyright Law's fair use provision that I have actually linked to in past threads and have applauded. It was created for The Center for Internet and Society at Stanford Law School by Professor Eric Faden of Bucknell University. The name of the video is "A Fair Use Tale" and it can be accessed for view at cyberlaw.stanford.edu and it is also available on YouTube. It not only details the factors a court will look at in determining fair use, it does so by using copyright-protected Disney characters and clips from Disney films (as a satiric salute, in part, to Disney's zealous pursuit of infringers on all things Disney). This seems likely to match your particular bent on IP law, tranquility, and it is a good overview of the law and what is often looked at as the extremes of the law.

One additional piece of advice for Hopeful Joe - if you want to avoid a lawsuit, permission is the best way to do it. However, if you wish to plunge ahead and see how far the "fair use" provision will stretch, I still suggest you have your resulting work reviewed by a professional prior to publication. Infringement suits are expensive and I think it wisest to avoid the possibility of them whenever possible. That said, I also support creativity and, if you are willing to take on what may be for you a costly challenge to your uses, I wish you the best with it.

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I'm aware of the Eric Faden's video. It's part of the inspiration for my work. Everything is a Remix is another interesting piece.
Watch | Everything Is a Remix

As a content creator, I would happily seek permission if my use of another's work was substantial enough to warrant it. But the trouble with obtaining permission for the bits used is precisely that it does not engage in the fair use debate. To acquire permission would be incongruent with the form and content of the album.

That said, I've taken everything you've said to heart and I will indeed seek legal counsel before publishing the work.

Thank you!

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justalayman,

I find it concerning that you consider reference synonymous with theft.

In the words of Roland Barthes, "the text is a tissue of quotations drawn from the innumerable centers of culture." Regardless of whether we seem to be quoting or not, we are in fact referencing a wealth of cultural data in all our communication, both linguistics, artistic, and gestural. What is it that makes it legal for me to quote Barthes here, as part of an ongoing written discussion, and illegal for me to sample Barthes actually saying those words in a song which engages in the same discussion?

While I appreciate the words of the French philosopher that you quoted, Joe, they do not really translate well to copyright law. Perhaps better than the words of Barthes are the words of Abraham Lincoln: "Let me not be understood as saying that there are no bad laws, nor that grievances may not arise for the redress of which no legal provisions have been made. I mean to say no such thing. But I do mean to say that although bad laws, if they exist, should be repealed as soon as possible, still, while they continue in force, for the sake of example they should be religiously observed."

As for copyright infringement being referred to as theft, this is done with some frequency by not only copyright holders but by the courts charged with deciding infringement cases. For one example out of many, Justice Breyer in Metro-Goldwyn-Mayer, Inc v Grokster Ltd (545 U.S. 913, 2005) said that "the deliberate unlawful copying is no less an unlawful taking of property than garden-variety theft."

I am glad you have decided to consider seriously what has been advised and will seek out an attorney's opinion on your work prior to publication. And, to leave you with one final quote, this time from Mark Twain: "Only one thing is impossible for God: To find any sense in any copyright law on the planet."

Good luck with your creative endeavors.

Joe, while I am sure you see my posts as adversarial, they are meant to be less adversarial and more a stinging comment hopefully to make a point. As Quincy posted, copyright infringement is stealing, nothing less. It is the taking of another's property.

Quincy is probably the most knowledgeable poster here (that posts frequently) on IP law. He is a nice guy. He is cautious to not offend. Me, not nearly as educated nor as nice but I try to add value in my way.

What I saw after he attempted to persuade you to not simply jump into this without having on hand legal advice concerning the actual work, you seemed to blow him off and suggest you will just make your art and hope for the best. Your arguments were vague, maybe simply because it is difficult to describe what you intend to do, maybe because you think you can mold that vagueness into some defense that you can throw at a suit and have it stick as a defense (it won't). While there are uses of another's work that will allow a person to take from their work and not be infringement, as Quincy explained, to find that out will be expensive if the true owner wants to make the argument. Even if you win, it would be expensive. If you lose, it could be devastating.

This is one area that it really is beneficial to make a best effort to know where you stand before rather than run for cover after the fact. Once the crap is flying, it makes a mess. You want to keep the flying matter to a minimum rather than trying to avoid getting hit once it is in the air.

so anyway, my apologies for being so confrontational. Quincy is a great guy to listen to. You should take his advice very seriously.

I am not all that nice.