Fair Use Avoidance in Music Cases
Fair Use Avoidance in Music Cases
Edward Lee 0
Chicago-Kent College of Law 0
0 Thi s Article is brought to you for free and open access by the Law Journals at Digital Commons @ Boston College Law School. It has been accepted for inclusion in Boston College Law Review by an authorized editor of Digital Commons @ Boston College Law School. For more information , please contact
Follow this and additional works at: https://lawdigitalcommons.bc.edu/bclr Part of the Entertainment, Arts, and Sports Law Commons, and the Intellectual Property Law Recommended Citation
A. Study Design ....................................................................................................................1897
A. Advantages................................................................................................................. ......1922
B. Disadvantages.............................................................................................................. ....1927
Abstract: This Article provides the first empirical study of fair use in cases
involving musical works. The major finding of the study is surprising: despite
the relatively high number of music cases decided under the 1976 Copyright
Act, no decisions have recognized non-parody fair use of a musical work to
create another musical work, except for a 2017 decision involving the copying
of a narration that itself contained no music (and therefore might not even
constitute a musical work). Thus far, no decision has held that copying
musical notes or elements is fair use. Mroeover, very few music cases have even
considered fair use. This Article attemtps to explain this fair use avoidance
and to evaluate its costs and benefits. Whether the lack of a clear precedent
recognizing music fair use has harmed the creation of music is inconclusive. A
potential problem of “copyright clutter” may arise, however, from the buildup
of copyrights to older, unutilized, and underutilized musical works. This
copyright clutter may subject short combinations of notes contained in older songs
to copyright assertions, particularly atfer the U.S. Supreme Court’s rejection
of laches as a defense to copyright infringement. Such a prospect of copyright
clutter makes the need for a clear fair use precedent for musical works more
Fair use is a common defense in copyright cases involving all sorts of
works, ranging from literary works, acategory that includes computer
programs, to works of visual art.1 The prevalence of fair use defenses comes as
no surprise given that, unlike many copyright exceptions, the fair use
provision in the 1976 Copyright Act is written as a general, all-purpose exception
© 2018, Edward Lee. All rights reserved.
* Professor of Law, Chicago-Kent College of Law; Director, Program in Intellectual Property
Law. Thanks to Peter DiCola, Xuan-Thao NgocNguyen, Pam Samuelson, Lea Shaver, Rebecca
Tushnet, and colleagues who provided helpful comments at a presentation of my paper at the
Intellectual Property Scholars Conference and the IU McKinney School of Law, Center for
Intellectual Property & Innovation Distinguished Lecture Series. Special thanks to Barton Beebe and Matt
Sag for sharing data they collected regarding fair use cases. I am indebted to Ryan Backman,
Erika Auger, Margot Wilson, and Raven Zeer for invaluable assistance in data analysis for the
empirical survey, as well as support from Chicago-Kent’sCenter for EmpiricalStudies of Intellectual
Property. Thanks also to Jonathan Safron for research assistance and music expertise, and Nicole
Lechuga and Rosamaria Mustari-Ebe for help with the graphs.
1 See generally Pamela Samuelson,Unbundling Fair Use,s 77 FORDHAM L. REV. 2537
(2009) (discussing various types of fair uses).
with no limitation on the circumstances or the types of copyrighted works
for which it may be invoked2. Fair use’s general applicability is buttressed
by the tendency of courts to devalue the second factor of fair use, the nature
of the copyrighted work in balancing the four fair use factors.3 As one court
recognized, “[t]he second factor has rarely played a significant role in the
determination of a fair use dispute,” a conclusion supported by a
comprehensive empirical study of fair use.4 The type of copyrighted work, in other
words, does not appear to play much ofa role, if any, in the fair use
Or does it? For at least one type of work, namely musical works, fair
use appears to be far less prevalent.In cases involving musical works that
allegedly copied portions of other musical works (i.e., specific musical or
lyrical elements), fair use is dormant and typically not even raised. Consider
the recent high-profile case involvingPharrell Williams and Robin Thicke:
the duo filed a lawsuit against MarvinGaye’s estate to establish that their
mega-hit song “Blurred Lines” did not infringe the copyright to Gaye’s
1977 song “Got to Give It Up.”5 The case seemed particularly apt for a
defense of fair use, given Robin Thicke’s admission in a May 2013GQ
magazine interview that the “groove” of Gaye’s song inspired Pharrell and him to
create “Blurred Lines” and that theywanted to “make something like that
[song].”6 Unless one concedes such copying is infringement, this admission
cries out for a fair use defense. Drawing on parts of a prior work to create a
new work is a standard ingredient inmany fair use defenses that are based
on so-called transformative uses7. If the case involved two novels,
ings, or even computer programs insteadof musical works, fair use would
be a no-brainer for the defense to raiseB.ut, instead of raising fair use,
Pharrell and Thicke asserted that they “did not incorporate or otherwise use
the composition ‘Got to Give It Up’ in ‘Blurred Lines.8’”Thicke even
recanted his explanation of composing “Blurred Lines,” instead maintaining
that he was “high on Vicodin and alcohol” and that Pharrell wrote almost all
of “Blurred Lines” by himself.9
In hindsight, Pharrell and Thicke’s fialure to raise a fair use defense
may have been costly, given the jury’s ultimate finding that “Blurred Lines”
infringed Gaye’s copyright.10 But their strategy in defending against a claim
of music infringement is no anomaly. Indeed, in practice, it is the rule rather
than the exception. Except for fair use parody of another song, which is
well-established under the U.S. Supreme Court’s seminal 1994 fair use
decision in Campbell v. Acuff-Rose Music,11 only one federal case has
recognized a songwriter’s fair use in copying or borrowing parts of another
composition. That case, decided in 2017,involved Drake’s sampling of 35
seconds of a sound recording by Jimmy Smith, who narrated his “Jimmy Smith
Rap” to no music.12 Even this lone fair use precedent in the context of
sampling did not address the fair use factors applied to musical notes, as
opposed to words. Moreover, it is debatable whether “Jimmy Smith Rap” even
constitutes a musical work, although the district court apparently assumed
without deciding that it was based on the plaintiffs’ characterizatio1n3. The
Copyright Office allowed a registration for “Jimmy Smith Rap” apparently
as a musical work,14 but that classification is contrary to the Copyright
Office’s own definition of musical work, which requiresmusic to be a part of
supra note 1, at 2553 (noting that in addition to criticism, authors also sometimes borrow from
existing works as an exercise in transformative artistic expression).
8 Complaint for Declaratory Relief at 5, Williams v. Bridgeport Music, Inc., No. LA
CV1306004 JAK (AGRx), 2015 WL 13648068 (C.D. Cal. Ag.u 15, 2013) [hereinafter Pharrell
9 August Brown, Robin Thicke on ‘Blurred Lines’: ‘I Was High on Vicodin and Alcohol,L’.A.
TIMES (Sept. 15, 2014),
10 See Williams, 2015 WL 4479500, at *47.
11 Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994).
12 Estate of Smith v. Cash Money Records, Inc., 253 F. Supp. 3d 737, 742–43 (S.D.N.Y. 2017).
13 Id. at 745 (describing the “composition copyright” to “Jimmy Smith Rap” asserted by
plaintiffs, but finding a genuine issue of fact as to the authorship of the work).
14 Id. at 744.
15 See United States Copyright Office, COMPENDIUM OF U.S. COPYRIGHT OFFICE PRACTICES
§ 802.1 (3d ed. 2017) (“For purposes of copyrigrhetgistration, musical works (which are also
known as musical compositions) are original works of authorship consisting of music and any
The dearth of music fair use is puzzling, especially given the relatively
high number of music cases litigatedover several decades and the ease of
raising a fair use defense. Unlike nptaomimes and choreographic works,
which have not been the subject of many copyright lawsuits, there are at
least four musical work copyright decisions per year on averag1e6.
Nevertheless, musicians accused of infringement, such as Pharrell and Thicke,
typically avoid pursuing fair use defenses to a decision—a pattern that has
persisted from the passage of the 197C6opyright Act to this day. Even
when fair use is included as part of adefendant’s answer to a claim of
infringement of a musical work copyright, fair use is not often litigated. For
example, in her case over her allegedly infringing song “Vogue,” Madonna
prevailed on a defense of de minimis copying instead of litigating her fair
use defense raised in her answe1r7. Similarly, Led Zeppelin succeeded in
arguing that its song “Stairway to Heaven” did not infringe the band Spirit’s
song “Taurus,” but Led Zeppelin did not press the fair use defense included
in its answer.18
This avoidance of fair use is esepcially puzzling given how music is
composed of discrete, identifiable combinations of notes, much in the way
that literary works contain words that may be quoted for fair19 usOef.
course, fair use is sometimes derided by critics as typically a defense of last
resort or a losing argumen2t0. But that view proves too much, as the
Supreme Court and lower courts have conisdered fair use defenses of
considerable force and merit, including in the context of parody fair use of musical
works.21 The absence of non-parody fair use cases involving musical works
thus cannot be explained by the putative lack of merit of the defense.
This Article examines and attempts to explain this anoma2l2y.Part I
explains why fair use, operating as a safety valve, would help spur the
creation of music2.3 Part II summarizes a novel empirical study of music
infringement cases that indicates that (i) no composer or songwriter has ever
prevailed in establishing a non-parody fair use of musical notes in another
musical work under the 1976 Copyright Act, and only one recent case has
recognized non-parody fair use of spoken words in a putative musical work
(because the narration or rap had no accompanying music, it arguably does
not even constitute a musical work); and(ii) the defense of fair use is
seldom even pursued or resolved in music cases2.4 Part III posits a new theory
of “fair use avoidance” to explain tihs anomaly and describes the various
reasons why both musicians and courtsmay be avoiding the defense of fair
use in infringement cases involving two competing musical works.25 Part IV
then evaluates whether fair use avoidance is desirable for creativity in
music and the copyright system as a whole2.6 One concern is that a recent
Supreme Court decision barring the use of laches in copyright cases may
create a potential problem of “copyright clutter” over musical notes contained
in older songs, a problem that may create a greater need for a clear
precedent recognizing non-parody fair use in music cases.27
I. FAIR USE’S RELEVANCE TO MUSIC COMPOSITION
Part I discusses why fair use should,in theory, be helpful to songwriters
and composers of music2.8 Given the pervasiveness of borrowing in music
compositions, plus the limited number of notes, chords, and progressions, fair
use appears to present a much-neededsafeguard for facilitating the creation
of new musical works as it commonly does with other types of works.29
22 See infra notes 23–313 and accompanying text.
23 See infra notes 28–138 and accompanying text.
24 See infra notes 139–163 and accompanying text.
25 See infra notes 164–252 and accompanying text.
26 See infra notes 253–313 and accompanying text.
27 Petrella v. Metro-Goldywn-Mayer, Inc., 134 S. Ct. 1962, 1972–77 (2014); see also infra notes
306–311 and accompanying text.
28 See infra notes 107–138 and accompanying text.
29 See generally Eldred v. Ashcroft, 537 U.S. 186, 219 (2003) (discussing how fair use is an
example of the “speech-protective . . . safeguards” built in to copyright law).
A. Fair Use and the “Borrowing” of Copyrighted Content
1. Transformative Works
The starting point of fair use is that the defendant used someone else’s
copyrighted content without permission30. In other words, the defendant
copied a work either in whole or in part. What separates fair use from
infringement is hard to define, given the case-by-case nature of fair us3e1. At
the outset, though, it is important to understand why fair use should be
relevant to music composition, given how fair use operates in copyright law in
facilitating the creation of transformative works.
In considering fair use, courts balance the four factors set forth in
section 107 of the Copyright Act to determine if the defendant’s unauthorized
use of the copyrighted content is a fair u3s2e.Since the Supreme Court’s
decision in Campbell, courts often focus their analysis on the first factor of
fair use, namely, the purpose and character of the defendant’s use of the
copyrighted content, and specifically whether such use is “transformative,”
i.e., whether the defendant’s use of the work “adds something new, with a
further purpose or different character, altering the first with new expression,
meaning, or message.”33 As the Court explained in Campbell:
Although such transformative use is not absolutely necessary for
a finding of fair use, the goal of copyright, to promote science and
the arts, is generally furthered by the creation otrfansformative
works. Such works thus lie at the ehart of the fair use doctrine’s
guarantee of breathing space within the confines of copyright, and
the more transformative the new work, the less will be the
significance of other factors, like commercialism, that may
against a finding of fair use.34
Thus, we might characterize such transformative uses as occupying the
“heartland” of fair use: the defendant has copied a copyrighted work only to
create a new work, one that alters the first work in a way that is
transformative in expression, meaning, or message3.5 In this heartland, fair use
facilitates the creation of new works, consistent with the overall goal of the
Copyright Clause in the U.S. Constitution, “to promote the Progress of Science
and useful Arts.”36
The Supreme Court calls these new works that are based on fair uses
“transformative works.” In Campbell, the transformative work was a new
song that parodied an old song, “Oh, Pretty Woman.”37 Except for one line,
the lyrics in the parody were different and the music of the parody was
reminiscent of the old song but added jarring, hip-hop elements to it, making
the sounds of the music different from the original3.8 As the facts in
Campbell show, a basic fact pattern is common to these heartland fair use cases
where the creation of a new transformative work is involved: (1) a
defendant copies a portion of an existing work without permission (i.e., copying)
) alters the copied work by adding new expression, meaning, or
message (i.e., to create something new3)9. In short, a transformative work
involves the defendant copying parts of an existing work to create a new
The category of transformative works sounds easy to define. But one
difficulty with the category is its elusive relationship with derivative works,
which are defined to include “any . . .form in which a work may be recast,
transformed, or adapted.”40 Because applying fair use to musical
compositions that borrow from prior works raises this very issue, it is worth
analyzing the complexity of the problem.
35 See Pierre N. Leval,Toward a Fair Use Standard, 103 HARV. L. REV. 1105, 1111 (1990)
(“If . . . the secondary use adds value to the original—if the quoted matter is used as raw material,
transformed in the creation of new informoanti, new aesthetics, new insights and
understandings—this is the very type of activity that the ifra use doctrine intends to protect for the
enrichment of society.”).
36 See U.S. CONST. art. I, § 8, cl. 8.
37 Campbell, 510 U.S. at 572. Recognizing the value of a fair use defense, the Campbell Court
noted that “[f]rom the infancy of copyright protection, some opportunity for fair use of
copyrighted materials has been thought necessary to fulfillcopyright’s very purpose, ‘[t]o promote the
Progress of Science and useful Arts.’” Id. at 575.
38 See id. at 582. Some fair uses do not involve teh creation of new transformative works at
all, but instead transformative purposes in utilizing existing works, such as inAuthors Guild that
involved verbatim copies of works for use in a search database to identify the works by content.
See, e.g., Authors Guild, 804 F.3d at 216–20. As discussed in Part III, courts have not fully
addressed the complexities between transformative character and transformative purpose—which, in
turn, may be a reason why courts have shied away from fair use in deciding music cases.See infra
notes 241–252 and accompanying text.
39 See generally Campbell, 510 U.S. 569 (discussing fair use in the context of a modern rap
parody of a popular 1960s song).
40 17 U.S.C. § 101 (2012) (emphasis added).
When a copyrighted work is used ina way that recasts, transforms, or
adapts the work into anew work, the new work is considered a derivative
work that falls within the existing copyrig4h1t. Similar to transformative
works under fair use, a derivative workcontains a portion of an existing
work and at least some element thaits different from the existing work,
such as a change in medium or format (for example, a toy or sculpture made
from a fictional character) or a new story or sequel involving existing
characters. The Copyright Act gives sevearl examples of derivative works: “a
translation, musical arrangement, draamtization, fictionalization, motion
picture version, sound recording, atr reproduction, abridgment, [and]
condensation.”42 An unauthorized derivative work would be infringing, but an
unauthorized transformative work could be a fair use. So how is
transforming a work into a derivative work different from using a work to create a
transformative work under fair use?
This is a thorny question. As Part III, infra, suggests, the courts’
collective ambivalence in resolving this question may be one reason why courts
have shied away from the fair use doctrine in deciding music case4s3. Thus
far, courts have treated “transform” under derivative works and
“transformative works” under fair use as separate, seemingly unrelated inquiries.44
According to a survey of fair use decisions up to 2008 addressing
“transformative” use, “courts generally emphasizethe transformativeness of the
defendant’s purpose in using the underlying work, rather than any
transformation (or lack thereof) by the defendant of thceontent of the underlying
work.”45 For example, in 2015, inAuthors Guild, Inc. v. Google, Inc,. the
U.S. Court of Appeals for the SecondCircuit explained the difference
between fair uses and derivative works by focusing on the purpose of use:
The statute defines derivative worsk largely by example, rather
than explanation . . . . As we notedin Authors Guild, Inc. v.
HathiTrust, “[p]aradigmatic examples of derivative works include
the translation of a novel into another language, the adaptation of
a novel into a movie or play, or the recasting of a novel as an
ebook or an audiobook.” While such changes can be described as
transformations, they do not involve the kind of transformative
purpose that favors a fair use findi.ngThe statutory definition
suggests that derivative works gneerally involve transformations
in the nature ofchanges of form. By contrast, copying from an
original for the purpose of criticism or commentary on the
original or provision of information about it, tends most clearly to
satisfy Campbell’s notion of the “transformative” purpose involved
in the analysis of Factor One.46
Tony Reese, writing before thAeuthors Guild decision, questions
whether focusing exclusively on purpose in the transformativeness inquiry
makes complete sense: “Transformativeness obviously could involve the
extent to which thecontent of the plaintiff’s copryighted work has been
transformed or altered. Campbell itself involved a defendant’s use that had
altered the plaintiff’s copyrighted original work by changing much of both
the lyrics and the music of the song.”47
Indeed, a close reading ofCampbell supports this view. The Campbell
Court explained the concept of transformative use as follows: the use
“instead adds something new,with a further purpose or different charact,er
altering the first with new expression, meaning, or message4.8” Purpose is
one of the ways in which the Court recognizes that a use of a work can add
something new, but another way is by giving a differecnht aracter to the
work, which tracks the language of the first factor in the fair use
provision.49 Character is different than purpose and relates to the actual
composition or content of the use of a wor5k0. It would be odd and against an
accepted canon of construction for the Court to use both terms “further
purpose” or “different character” and reduce one to mere surplusage.51
This understanding of transformativealso is consistent with Judge
Pierre Leval’s first elaboration of the concept in hiHs arvard Law Review
46 Authors Guild, 804 F.3d at 215–16 (emphasis added) (internal citations omitted).
47 Reese, supra note 45, at 485 (emphasis added).
48 Campbell, 510 U.S. at 579 (emphasis added).
49 Id.; see 17 U.S.C. § 107.
50 See Characte,r MERRIAM-WEBSTER DICTIONARY, https://www.merriam-webster.com/
dictionary/character [https://perma.cc/KV6G-D3BC] (defining character as “the aggregate of
distinctive qualities characteristic of a breed, strain, or type”).
51 See Duncan v. Walker, 533 U.S. 167, 174 (2001) (noting that it is the Court’s duty “to give
effect, if possible, to every clause and word ofa statute” (quoting United States v. Menasche, 348
U.S. 528, 538–39 (1955)).
article upon which the Campbell Court relied (although, as discussed above,
Judge Leval’s discussion of transformative iAnuthors Guild focused on
purpose of use).52 Leval explained transformative as follows: “The use must
be productive and must employ the quoted matter in a different manner or
for a different purpose from the origina53l.”Presumably, the manner in
which a work is used could involveuse of the work, for example, “as raw
material, transformed in the creation of new information, new aesthetics,
new insights and understandings.5”4 Such uses go beyond mere purpose,
they involve additions or changes to the underlying content or raw material,
producing “new aesthetics” in some instances5.5 The copied portion is not
“merely repackage[d] or republishe[d],” but rather it is “transformed in the
creation of [something] new.”56
This second kind of transformative use—focusing on the content of the
use instead of the purpose of use—was analyzed in Cariou v. Prince, a 2013
Second Circuit decision that came out before theAuthors Guild decision.57
In finding most of the contested works of Richard Prince’s appropriation art
(consisting largely of his unauthorized copies of copyrighted photographs
taken by others) to be fair uses, the Second Circuit focused on thceontent
of Prince’s art, which juxtaposed images of Rastafarians, especially their
faces (though, with some color splotches he added), with images of partially
naked women.58 The court explained: “[T]o qualify as a fair use, a new
work generally must alter the original with ‘new expression, meaning, or
message.’”59 Applying this approach, the court readily found that Prince had
made transformative uses of the photographs based on the content of
Prince’s creations: “Prince’s composition, presentation, scale, color palette,
and media are fundamentally different and new compared to the[original]
photographs, as is the expressive nature of Prince’s work.”60 The court
emphasized that Prince’s use transformed the content orcharacter of the
photographs, not the purpose of use, in finding fair use“:[L]ooking at the
artworks and the photographs side-by-side, we conclude that Prince’s images
. . . have a different character, giveCariou’s photographs a new expression,
and employ new aesthetics with creative and communicative results distinct
As far as the purpose of Prince’s use goes, the court discounted
Prince’s deposition testimony t“hat he was not ‘trying to create anything
with a new meaning or a new message.’”62 The court expressed skepticism
about a defendant’s ability to givneon-self-serving testimony about his
transformative purpose to support a fair use clai m63. The defendant’s
subjective intent did not matter much, if at al6l4. Instead, “[w]hat is critical is
how the work in question appearsto the reasonable observer, not simply
what an artist might say about a particular piece or body of wor6k5.”The
Second Circuit focused on content, the end product of the defendant’s use.66
Thus, the Second Circuit’s treatment of transformative fair use
presents an ambivalent view. Authors Guild focused on purpose of use, in part,
because the defendant’s use did not involve a transformation of the
underlying content that it copied for use in its search databa6s7e.By contrast, the
Prince case focused oncharacter of use.68 Courts have predominantly
focused on purpose of use.69 But the Prince case illuminates how the
character of use may also be pivotal in determining fair use.70
Professor Reese provides a helpful tpyology of how “transformative”
might be categorized in terms of purpose and conte7n1t.I have recast the
typology in Table 1 below.72
The easier cases to decide are ones in which both content and purpose
are transformative (first type) or not transformative (fourth type), i.e.
“double or nothing” transformativeness7.3 Courts have recognized fair uses for
the first type (although often emphasizing the transformative purpose) and
have typically rejected fair uses for the fourth ty7p4e.The more difficult
cases tend to be the ones in which there is transformativeness either in
content or purpose (second and third types), but not in both.
Authors Guild is an example of a case with a transformative purpose,
but without alteration of the contetn, which Google copied verbatim7.5 By
contrast, the Prince case seems more aptly categorized as the second type
because the Second Circuit found that Prince had transformed the content of
the underlying photographs, but the court stopped short of identifying a
specific transformative purpose in Prince’s wor7k6. Moreover, one could
argue that photographs have the same general purpose of visual depiction or
representation of whatever they capture, which would be the same general
purpose of Prince’s artwork.
Because fair use must be decided ona case-by-case basis, these
categories do not present hard-and-fast rules.But they are helpful in understanding
how courts have analyzed fair ues in terms of transformativeness7.7 We will
return to them in Part III when we consider potential reasons why courts have
not considered non-parody fair use of musical works.78 For now, it suffices to
understand that musical works that borrow from other musical works might
fall within the first or second type of transformative uses.
2. Examples of Transformative Works
Transformative works can be furhter categorized depending on whether
the new work is in the same category ofwork as the work that it copies. As
explained below, some transformativeworks draw from different types of
works, while other transformative works draw from works of the same type.
For our purposes, the latter category of transformative work is more relevant,
but both categories are explained in the sections below. The point of this
discussion is not to suggest that whether the two works in a copyright dispute are
of the same or different type affectsthe fair use analysis, though perhaps in
some cases, it may. Instead, the ensuingdiscussion is intended to highlight
73 Reese, supra note 45, at 486.
75 See generally Authors Guild, 804 F.3d 202 (discussing fair use in the context of Google’s
copying and providing online access to millions of copyrighted books).
76 See Cariou, 714 F.3d at 707.
77 See, e.g., Campbell, 510 U.S. at 577.
78 See infra notes 220–252 and accompanying text.
how the two categories of transformative works might illuminate which
industries or creative activities may depned on fair use. The music cases
analyzed in the survey in Part II fall within the same-type category.
a. Fair Use of a Different Type of Work
The first category of transformativework involves a fair use of a
portion of one type of work to create a new work of a different type. I will call
these works “different-type” transformative works. For example, in 2000, in
Nunez v. Caribbean International News Corp,. a newspaper’s copying of a
photograph, a pictorial work, for reporting of a controversy in the
newspaper, primarily a literary work, was deemed to be a transformative fair use by
79 A similar use was recognized as transformative in the
the First Circuit.
Second Circuit’s 2006 decision in Bill Graham Archives v. Dorling Kinders
ley Ltd., where a book about the Grateful Dead copied the band’s various
concert posters (pictorial works) for historical referenc8e0. Of course, not
every defense of fair use is successful. A trivia book (a literary work) of the
TV show Seinfeld (an audiovisual work and/or a dramatic work) was found
not to be a fair use of the show.81
b. Fair Use of the Same Type of Work
The second category of transformative work involves a fair use of a
portion of one type of work to create a new work of the same type. These
“same-type” transformative works involve at least two works of the same
kind. The music cases studied in thisArticle fall within this category.
Before discussing the music cases, this section discusses some common
examples of fair use related to same-type transformative works.82
i. Quotation of Literary Works
A paradigmatic example of this kind of transformative work, where one
work borrows from the same type ofwork, is a book review. A book review
often quotes portions of a copyrighted book, but in the context of the
reviewer’s own critique of the book. As Juiscte Story said in the Circuit Court of
Massachusetts’ seminal fair use opinion in 1841, in Folsom v. Marsh:
[A] reviewer may fairly cite largely from the original work, if his
design be really and truly to usethe passages for the purposes of
79 See Nunez v. Caribbean Int’l News Corp., 235 F.3d 18, 25 (1st Cir. 2000).
80 Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605, 609 (2d Cir. 2006).
81 Castle Rock Entm’t, Inc., 150 F.3d at 141.
82 See infra notes 83–106 and accompanying text.
fair and reasonable criticism. On the other hand, it is as clear, that if
he thus cites the most important parts of the work, with a view, not
to criticise, but to supersede the use of the original work, and
substitute the review for it, such a use will be deemed in law a piracy.83
Of course, one could write a book review without quoting parts of the book.
But the review probably would be more convincing if it supported its
analysis with some quotations. For example, let’s say the review praises the
poetic language of a book. Quotation of a setnence or two to substantiate such
praise would make the review more persuasive. And requiring a copyright
license for such quotation would potentially stifle criticisms of a book
because the author could just refuse to license, particularly if the requested
license is for a negative review.84
Justice Story’s example explains a crucial difference between quoting
a work to critique it and quoting a work to be a substitute for the work.85 In
the Supreme Court’s 1990 case, Harper & Row Publishers v. Nation
Enterprises, the Nation Magazine quoted key passages of an unpublished memoir
by President Ford, thus “scooping” and substituting for the b8o6okO.ne
could read the magazine article and get the juiciest parts of the memoir, all
without reading the book. The Court easily found no fair use.87
In sum, the use of quotations olfiterary works for criticism or
comment are paradigmatic examples of same-type transformative works. If the
quotations were “for the purposes of fair and reasonable criticism,” they are
treated as fair uses unless too much was copied.88 Quotation shows how fair
use can facilitate the creation of same-type transformative works. The
concept of quotation originated with text, but it is possible to use the term for
visual works89 and music,90 as discussed below.
ii. Copying to Create Appropriation Art
Pictorial works are another type of work that lends itself to the
sametype category of transformative works.Indeed, history is replete with
examples of painters and other pictorial artists (1) copying elements of other
pictorial works but (
) adding new expression to them in creating their own works.
Picasso was (in)famous for borrowing from the works of other artists,
including Delacroix, Velazquez, Manet, Matisse, African artists, and
others.91 Throughout history, some of our greatest artists drew inspiration,
ideas, and even expression from prior works and the works of their
contemporary rivals in creating their own paintings9.2 Today, “appropriation art” has
become a recognized art form. Andy Warhol, Sherrie Levine, Jeff Koons,
Robert Rauschenberg, Richard Prince, and other appropriation artists have
pushed the boundaries of creating art sometimes by copying the entirety of
other works9.3 Several lawsuits have been brought against Koons and
Prince, who both raised fair use defenses. In some cases, fair use was
successful.94 In other cases, the defense failed.95
Even when the appropriation artistcopies the entirety of another work,
such as by photographing a photograph,the copying or appropriation is
defended as an act of criticism, subversion, or transformation. As one
commentator explains, “[t]he artist removed the original work from its original
context and by doing so tries to force the viewer to see the image differently; they
transformed the original work.”96 Moreover, “in the process of creating
appropriation art, which uses another’swork as a keystone, the appropriation
artist challenges ‘ideas about ownership and originalit9y7.’”Originality, a
basic requirement for copyrighted works, itself is the subject of the
appropriation artist’s critique. Copyright law, however, has taken an ambivalent stance
to appropriation art, with a mixed result under fair use. Nevertheless, the
iou decision recognizes that some worksof appropriation art are fair uses as
transformative works (here, same-type transformative works).98
iii. Copying to Create Computer Programs
One final type of work is worth considering before examining musical
works. Computer programs, which are classified as literary works under the
Copyright Act, are also the subject of fair use in the creation of other
computer programs.99 Courts have recognized a fair use in the making of
“intermediate copies” of a computer program to identify the unprotected
functional elements to make a new program that is interoperable with an
operating system, where the new program did not incorporate any copyrighted
element of the first program.100 The recent controversy between Oracle and
Google involved a new program createdby Google for its Android phone
that incorporates some of Oracle’s copyrighted Java program (i..e,
declarations and the structure, sequence, and organization or SSO of Oracle’s Java
program) to create a new program for Google’s Android phon10e1. A jury
found that such copying of Java by Google was a fair u10s2e.On appeal,
however, the Federal Circuit overturned the jury verdict and ruled that
Google’s copying of Java to create the Android program was not
transformative or fair use as a matter of law.103 The Federal Circuit appeared to take a
dim view that same-type works can constitute fair use without a showing of
a different purpose: “Where the use ‘is for the same intrinsic purpose as [the
98 See Cariou, 714 F.3d at 706 (finding twenty-five oPfrince’s artworks transformative in
nature and therefore fair uses).
99 17 U.S.C. § 101.
100 See Sega Enters. Ltd. v. Accolade, Inc., 977 F.2d 1510, 1527–28 (9th Cir. 1992) (“We
conclude that where disassembly is the only way to gain access to the ideas and functional
elements embodied in a copyrighted computer progamr and where there is a legitimate reason for
seeking such access, disassembly is a fair use of the copyrighted work, as a matter of law.”).
101 See Oracle Am., Inc. v. Google Inc.N,o. C 10-03561 WHA,2016 WL 3181206, at *1
(N.D. Cal. June 8, 2016), rev’d 886 F.3d 1179 (Fed. Cir. 2018).
103 Oracle Am., Inc. v. Google LLC O(racle II), 886 F.3d 1179, 1201 (Fed. Cir. 2018) (noting
that Google and Oracle differ in their conclusionsas to whether a reasonable jury could find
transformative use). Compare Opening Brief and Addendum for Oracle Am., Inc. at 32O,racle II, 886
F.3d 1179 (Nos. 17-1118, 17-1202),2017 WL 679347, at *32 (arguing that Google’s program was
not transformative owing to the fact that it used the same expression to achieve the same purpose,
despite doing so in a different medium),with Brief of Defendant-Appellee/Cross-Appellant Google
Inc. at 28, Oracle II, 886 F.3d 1179 (Nos. 17-1118, 17-1202)2,017 WL 2305681, at *28 (arguing
that Google’s use was transformative because “it integrated selected elements, namely declarations
from 37 packages to interface with all new impleemnting code optimized for mobile smartphones
and added entirely new Java packages written bGyoogle itself, which enabled a purpose distinct
from the desktop purpose of the copyrighted works”) (internal quotations omitted).
copyright holder’s] . . . such use seiorusly weakens a claimed fair use.’1”04
In Google’s case, the court concluded that “[t]he fact that Google created
exact copies of the declaring code and SSO and used those copies for the
same purpose as the original material ‘seriously weakens [the] claimed fair
use.’”105 Although the Federal Circuit also recognized the possibility that
copying computer code into a new context could create new expression that
is transformative, the court rejected Google’s argument of a new context for
smartphones because Oracle had alreadylicensed its Java code for use in
smartphones of Danger and Nokia.106
B. Borrowing in Music Composition
Now that we have a basic understandingof how fair use facilitates the
creation of transformative works, we can turn to the main subject of this
Article: musical works. Similar to literrya and pictorial works, musical works
sometimes, if not often, involve acomposer’s copying—or “borrowing”—
elements from other musical works to create a new work. Borrowing may
consist of a range of copying, including“transcription, variations, quotation,
paraphrase, parody, modeling, allusio,n sampling, and many other ways to
rework existing music, from troping adn organum to collage and electronic
manipulation.”107 This Article focuses on a composer’s borrowing of an
element of a musical work to use in thecreation of a new work. To the extent a
musical work borrows or copies elements of a prior musical work to create a
new work, it fits within the pattern for a transformative work.
1. Musicians Have Borrowed Throughout History
Musical works are amenable to fairuse given the long history of
borrowing in music dating at least back to seventeenth century classical music108
and extending to today’s music.109 Musicologists have documented the
pervasive borrowing of prior music by even the most famous composers, including
Bach, Beethoven, Brahms, Handel, Mozart, Rachmaninoff, and Wagner, to
name a few1.10 The extent of borrowing in music is so large that it has
spawned an entire field of research among musicologists and other scholars,
who have produced an extensive body of scholarship analyzing the
phenomenon of music borrowin1g11. In the law academy, Olufunmilayo Arewa’s
scholarship has chronicled musical borrowing in a variety of genres.112
Borrowing aspects of prior works in composing new music was not
limited to classical music. Early to modern American music, including
colonial music, the works of Aaron Copeland and George Gershwin, jazz, pop,
rock and roll, and hip-hop have all routinely involved some form of
borrowing of prior works.113 As one commentator aptly put it, “[m]usical stealing is
probably as old as music . . . . No one, in this advanced age, is particularly
horrified when he encounters it, and no one expects musical composition to
continue without it.”114 Indeed, many popular songs in the U.S. have
contained apparent borrowing of elementsof prior musical works, as
summarized in Table 2 below:115
b. Availability of Other Defenses, Some of Which Do Not Admit Copying
A major reason that fair use does not appear with much frequency in
music cases is that other arguments have been more successful or attractive
to defendants.199 Thus far, the success rate ofdefendants avoiding liability
in music cases has been high2.00 The success of those defenses—for
example, the lack of access to the plaintifsf’ work, lack of similarities, copying
unprotected elements, and de minimis copying—may present defendants or,
more aptly, defense counsel with a positive feedback loop to continue to use
what prevailed in other cases in the pas2t0.1 Success breeds, not only
success, but repeated attempts at achieving the same success by the established
arguments. Although defendants could argue in the alternative that any
copying they committed constituted a fairuse, music defendants do not often
pursue or press a fair use defense.202
One possible reason that fair use is less attractive, at least compared to
the defense of lack of access to oraclk of similarity between the works—
the two most successful bases in music cas2e03s—is that unlike those
(reporting that George Clinton and the Black Eyed Peas reached a settlement agreement based on the
Peas alleged copying of elements of Clinton’s song “(Not Just) Knee Deep” in their song “Shut Up”);
Gil Kaufman, Demi Lovato Settles Sleigh Bells ‘Infniity Guitars’ Infringement Lawsuit, BILLBOARD
(Apr. 13, 2017),
http://www.blilboard.com/articles/columns/pop/7760267/demi-lovato-settle-sleighbells-infringement-lawsuit [https://perma.cc/8E7P-JR37] (reporting that Demi Lovato settled with
Sleigh Bells, an indie rock band, over her allegde copying of the band’s “Infinity Guitars” in her
song “Stars.”); Daniel Welsh, Ed Sheeran Reaches Deal in Copyright Lawsuit Over Matt Cardle’s
‘Amazing,’ HUFFINGTON POST (Apr. 12, 2017),
[https://perma.cc/MCF7WA3S] (reporting that Ed Sheeran settled with Mtta Cardle after the singer accused Sheeran of
copying his song, “Amazing”).
199 See supra notes 157–160 and accompanying text.
200 See id.
201 See id. See generally Daria Roithmayr,Them That Has, Gets, 27 MISS. C. L. REV. 373
(2008) (discussing how institutional processes create positive feedback loops in the context of race
and poverty). Roithmayr gives the example of svuializing positive feedback loops as snowballs
gathering more snow or a bank account accumulatnig more wealth, conditions that are amplified
because the changes in one direction work to produce more change in that same directionId.. at
202 See supra notes 17–18 and accompanying text.
203 See Arnstein v. Porter, 154 F.2d 464, 468–69 d(2Cir. 1946). The test of infringement
lends itself to two major grounds for defendantos defend themselves: unless the plaintiff has
direct evidence (such as the plaintiff’s admission) that the plaintiff copied, the plaintiff must prove
copying by presenting evidence (1) that the defendant had reasonable access to the plaintiff’s work
) that there are probative similarities in the competing songs. Id. Reasonable access to
plaintiff’s work can be shown by establishing that workwas widely available to the public or that the
defendant or his associates had access to a copy of the worSke.e Loomis v. Cornish, 836 F.3d
991, 994–95 (9th Cir. 2016). Moreover, some courts recognize that evidence of striking similarity
fenses, fair use assumes that the defendanctopied the plaintiff’s work2.04
Music defendants may pursue defenses other than fair use when the
defendants did not copy the plaintiffs’ songs—or, at least, the defendants do not
believe they copied or were not conscious of any copying. As discussed in
greater depth below, coincidental similarities between songs probably
occurs with some frequency, given the limited number of musical notes, tones,
and rhythms.205 Accordingly, to the extent composers or songwriters
believed they independently created a song, they may be less inclined to admit
copying or borrowing a portion of a piorr work even as an alternative
defense of fair use. After all, musicians have their professional reputation to
worry about and copying other works, even in part, might make it sound
like the musicians didn’t write their own songs. Notwithstanding the
common practice of settling music cases by granting songwriting credit and
royalties, songwriters accused of music infringement might prefer defenses
that are consistent with the explanation that they independently created their
The dynamics of avoiding an admissoin of copying, even for the
purpose of pursuing a fair use defense, may play out differently depending on
whether the litigants are “established” in the music industry2.06 For the
purposes of the survey, several indicia of “established artist” were used to
categorize the parties: an artist who (1) was signed to a major record label or
music publisher, (
) wrote, performed, or was credited on a song listed on
the Billboard chart, (
) wrote, performed, or was credited on a gold or
platinum record, or (
) had national recognition via a biography on AllMusic or
Wikipedia.207 Music labels and music publishers were considered
established in the music industry.
between the songs can provide a basis for concluding that both elements, copying and access, have
been satisfied. See Repp v. Webber, 132 F.3d 882, 889 (2d Cir. 1997).
204 See 17 U.S.C. § 107 (2012).
205 See SHAFTER, supra note 110, at 156.
206 See infra notes 208–216 and accompanying text.
207 The last factor created some risk of being over-inclusive in identifying “established” artists.
At the same time, some independent artists might achieve fame online without necessarily being tied
to a major music label or publisher. Including both AllMusic and Wikipedia was intended to help
identify artists who had achieved a certain level of recognition short of being signed with major label
or publisher. Started in 1991, AllMusic provides“a comprehensive and in-depth resource for finding
out more about the albums, bands, musicians and songs you love.W”elcome to AllMusic,
ALLMUSIC, https://www.allmusic.com/about [https://perma.cc/67S2-UFHL]. AllMusic employees determine
whether to include an artist’s bio in its databaseP.roduct Submissions, ALLMUSIC, https://www.all
music.com/product-submissions [https://perma.cc/YV9S-EN26]. Although anyone can write an
article and post it to Wikipedia, Wikipedia strongly discourages people from attempting to write
autobiographical posts about themselves and subjects any such submissions to the standard editing
process by others.Creating an article about yours,elfWIKIPEDIA, https://en.wikipedia.org/wiki/
i. Unestablished v. Established Artists or Music Entities
Of the music infringement decisions surveyed, 54% (68 of 127) were
brought by individuals who were notestablished in the music industry.208 All
except two of these lawsuits involved acopyright claim against a “bigger” or
more prominent defendant, whetheran established musician, a music
publisher, or label. In such “Unestablished v. Established” cases, when a plaintiff
who is relatively unknown or unestablished in the music industry (an
“unestablished songwriter”) accuses an established musician, music publisher, or
label of copyright infringement, the“established” defendant probably does
not view the fair use defense as an appropriate or attractive option.
At least some of these Unestablished v. Established cases might
involve frivolous claims brought by an unestablished songwriter hoping to
strike it rich based on some putative smi ilarity in the music. For example,
an unestablished rap artist named Anthony Woods, who was in prison at the
time of the lawsuit, sued Lil Wayne for $51.1 million for allegedly
infringing the copyright to a mixtape Woods posted online20.9 Woods, who
represented himself, made no specific factual allegation that Lil Wayne ever
heard Woods’ mixtape.210 The court dismissed the case for lack of
substantial similarities between the respective songs of Woods and Lil Wayne.211 In
this scenario, asserting fair use seemsincongruous. If the defendant did not
copy, why argue fair use? Disputing a basic element of infringement—that
the defendant copied the plaintiffs’ work—by asserting that the defendant
did not have access to the plaintifsf’work or that there are no probative
similarities in the competing songs is the more logical choice. Fair use just
does not fit the facts.
The fact that a plaintiff is relatively unknown in the music industry,
however, does not necessarily mean that the defendant could not have
copied from the plaintiff. In some cases, the unestablished music plaintiff is
able to present direct or circumstantial evidence that the established music
defendant had access to the plaintiff’s son21g2. For instance, an
unestablished songwriter who is trying to berak into the music industry may
circulate her work to people in the music industry in the hope of being
discovered. It is quite possible that, in smoe instances, an associate of an
established artist received a copy of thuenestablished songwriter’s work and
may have borrowed parts of it without her permission. It would be incorrect
to assume that every music infringement suit brought by an unestablished
artist involves a frivolous claim.
ii. Established v. Established Artists or Music Entities
By contrast, 37% (47 of 127) of the decisions surveyed involved
established artists or entities suing other established artists or entities2.13 The
dynamics of fair use avoidance are probably different in music cases in which
both the plaintiff and the defendant areestablished in the music industry. In
such cases, one might expect that porfessional reputation in admitting
copying would be less of a concern. Somoef the most successful artists have
openly admitted borrowing from other scuecssful artists. To return to our
opening example, Robin Thicke said that“one of my favorite songs of all
time was Marvin Gaye’s ‘Got to GiveIt Up.’ I was like, ‘Damn, we should
make something like that, something with that groove.’2”14 Although Thicke
later recanted that explaantion and said Pharrell wrote the song “Blurred
Lines,” even Pharrell acknowledged “channeling . . . that late ’70s feeling.”215
Is there any downside to an established artist claiming a fair use of
another established artist’s work? For Pharrell and Thicke, perhaps not. Given
their success, probably no one would think less of their music abilities if
they asserted they made a fair use of Gaye’s song. On the other hand,
perhaps it sounds better professionally rfoa songwriter, especially one just
breaking into the music industry, to say that he is writing all original music
without copying even a small portion of the style or work of another
songwriter. For example, Sam Smith maintains that he independently created his
hit song, even while agreeing to a license from Tom Petty.216
Moreover, as discussed in the next section, some segments of the
music industry may frown upon fair use dfeenses due to concerns of opening
the floodgates to similar defenses raised by amateur songwriters and
musicians who attempt to borrow the established artists’ copyrighted music.
Established artists, many of whom are sgi ned by major labels and publishers,
may end up toeing the music industry line on fair use, even if they believe
some borrowing should be considered fair use. Establishing a precedent of
fair use can also be used against asongwriter’s own work. Fair use could
thus be a double-edged sword for creators. This dual nature of fair use
applies beyond music to all other types of works, including computer
programs, other literary works, and pictorial works. Some artists might not
mind this double-edged quality of faiurse, but other established artists
might prefer receiving royalties for yan borrowings of their own works,
even ones that might be considered fair uses. Just imagine that, in the year
2040, Sam Smith could assert a copyright claim against a young artist
whose song sounds similar to “Stay with Me.” Whereas the lack of a fair
use precedent hurt Smith’s possible denfsee in the dispute with Petty, it
would help Smith’s possible copyrightclaim in the dispute with the young
artist in the hypothetical scenario.
c. Music Industry Norms and Practices
Another possible explanation for the low salience of fair use defenses
in music cases is that the norms of the music industry might militate against
it. As explained above, artists might be ambivalent about fair use because it
acts as double-edged sword, enabling them to borrow from other works but
allowing their works to be borrowed byothers. And perhaps an artist can
establish greater credibility and acceptance within the music industry if the
artist is perceived as writing or performing “original” music instead of
music that openly borrows from other works.
More generally, the recording industry and the music publishing
industry might be less than enamored with promoting fair use, which could
facilitate unlicensed uses of music. At least in statements to the Copyright Office
regarding remixes of music, both the Recording Industry Association of
America (“RIAA”) and National Music Publishers Association (“NMPA”)
appear to have taken very narrow views of fair us2e1.7 Thus, even if artists
217 See Reply Comments of ASCAP, BMI, NMPA, CMPA, NSAI, RIAA, and SESAC to
Request for Comments on Department of Commrece Green Paper “Copyright Policy, Creativity,
and Innovation in the Digital Economy” 2, https://www.uspto.gov/sites/default/files/documents/
t[thps://perma.cc/DYB3A66Y] (“Implicit in the submissions supporting anexpansion of fair use or a compulsory license
is an assumption that a work assembled by a secondary user out of pieces taken from an author of
an original work created from scratch is somehowmore valuable to society than the underlying
original work.”); Comments of National Music Publishers’ Association, Nashville Songwriters
Association International SESAC, Inc., Church Music Publishers Association 4, https://www.ntia.
R496-GTKG] (“However, our members’ experiencesuggests the vast majority of unauthorized
‘remixes’ are not entitled to such protection. These ‘remixes’ simply use pre-existing works
without the authorization of the author or owner. This doctrine should not be expanded to allow for
further stripping away of the rights and livehloiods of creators. The Copyright Act should only
permit unlicensed uses in the rarest of circumstances in which use of the original work is
necesroutinely borrow from others as an acceptable practice, such artists might be
reluctant to pursue fair use defenses if the doctrine is not widely promoted
or accepted by the major music labels and publisher2s1.8 Perhaps the most
powerful artists or ones with their own labels, such as Beyoncé, can do
what they want.219 But artists who are signed by the major music labels and
publishers might not even own the copyrights to the songs they write or
perform, and even if they do, they still are beholden to the music labels and
publishers to promote their music.
In sum, musicians might avoid fair use defenses for a variety of
reasons ranging from a lack of fit with teh facts or theory of the case, to
professional concerns and music industry norms that militate against
recognizing fair uses in music.
2. Potential Reasons Why Courts Have Avoided Fair Use
a. Defendants Do Not Pursue Fair Use
Courts may avoid fair use in music cases for a variety of reasons. The
simplest reason would be if the defendant waived the defense by not
asserting it. The defendant has effectively made the decision for the court not to
consider fair use, even though it mya be relevant. The defendants’
avoidance results in the courts’ avoidance as well. If the defendants do not assert
the defense (as was the case with Pharrell and Robin Thicke), the court will
not entertain a defense waived by eth defendants. In some cases, the
defendants asserted the fair use defense in their answers, but apparently ended
up not pursuing it at trial2.20 Of course, this explanation begs the question
why fair use avoidance by defendants in music cases has persisted for many
years; several reasons were proffered above.
sary to communicate a message, e.g. for parodies. Otherwise, the law should encourage
independent creation or require licensing.”). The RIAA’sposition was perhaps the most moderate of the
music industry submissions. See Comments of the Recording Indutsry Association of America,
Inc. 6 (Nov. 13, 2013), https://www.uspto.gov/sites/default/files/documents/Recording_Industry_
Association_of_America_Comments.pdf [https://perma.cc/8V3C-LWZV] (“Some works and uses
may suitably fall within the proper parameters of the fair use doctrine; others do not. The Task
Force should keep this in mind in reviewing the current legal framework. In particular, a nuanced,
flexible approach to deal with the various uses that can be made of copyrighted material may be a
better approach than a one-size-fits-all policy.”).
218 See Comments of National Music Publishers’ Association et. al, supra note 217.
219 See Tufayel Ahmed,Meet Beyoncé’s Protégés: What WeKnow About Her First Record
Label Signings, NEWSWEEK (Apr. 6, 2016),
220 See supra notes 17–18 and accompanying text.
b. Historical Artifact
Perhaps another factor contributing to the lack of a non-parody fair use
music decision is historical artifact. Fair use first developed as judge-made
law in the context of quotations for literary works, with the Circuit Court of
Massachusetts’ 1841 caseFolsom v. Marsh commonly recognized as the
first fair use decision2.21 U.S. copyright law first included musical works
within the scope of protection in 18312.22 Historically, courts were just
developing a body of fair use precedent when music cases were first decided.
While fair use was in its infancy, litigants might not have understood how it
applied, if at all, to respective copyright disputes, including music cases. It
is therefore not surprising that theold music cases before the 1976
Copyright Act did not often consider fair use defense2s2.3 More typical was the
view of courts that some adaptation or borrowing to create new music was
permissible, and simply not infringement2.24 Even where infringement was
found, it was common for the defendant toargue that such similarities in
music were standard or frequent in other songs and therefore not
infringing.225 Thus, because courts entertained arguments for permissible
borrowing of music in older copyright cases, fair use was, in some respect, not
needed—or at the very least, not invoked by name. Indeed, courts generally
took a narrow view of copyright for musical works2.26 The test of
infringement itself could be used to allow some permissible borrowing of musical
works to create a new work.227
221 Folsom v. Marsh, 9 F. Cas. 342, 349 (C.C.D. Mass. 1841) (No. 4901).
222 Copyright Revision Act of 1831, ch. 16, 4 Stat. 436.
223 See, e.g., Jollie v. Jaques, 13 F. Cas. 910, 913 (S.D.N.Y. 1850) (No. 7437) (“The
composition of a new air or melody is entitled to protectoin; and the appropriation of the whole or of any
substantial part of it without the license of theauthor is a piracy. How far the appropriation might
be carried in the arrangement and composition ofa new piece of music, without an infringement,
is a question that must be left to the facts in each particular case.”).
224 Id. at 914 (“The new arrangement and adaptation must not be allowed to incorporate such
parts and portions of it as may seriously interferewith the right of the author; otherwise the
copyright would be worthless. That portions may betaken and mixed up in the new arrangement and
composition, cannot probably be denied; and theremay be great difficulty in distinguishing
between those new compositions that do, and thostheat do not absorb the merit of the original
225 See, e.g., Haas v. Leo Feist, Inc., 234 F. 105, 107 (S.D.N.Y. 1916) (“It is said that such
similarities are of constant occurrence in music, and thatlittle inference is permissible.”); Hein v. Harris,
175 F. 875, 876 (S.D.N.Y. 1910) (“The defendant urgse with much truth that both his own and the
complainant’s songs are in the lwoest grades of the musical art.The vogue which for a number of
years that style of composition has obtained, which is popularly known as ‘rag-time,’ has resulted in
the production of numberless songs, all of the same general character.”).
226 See Haas, 234 F. at 107; Hein, 175 F. at 876.
227 See, e.g., White-Smith Music Publ’g Co. v. Apollo Co., 209 U.S. 1, 18 (1908) (holding
that music mechanically performed on a piano roll did not infringe the copyright for a musical
Benjamin Kaplan’s 1967 account of music copyrights espouses this
The musical tradition tolerates considerable definite and deliberate
borrowing provided the later composer manipulates what he has
taken. This may be the point ofthe tale about the composer who,
treating the Ten Commandments as a musical subject, unabashedly
took a generous helping from someone else’s work when he came
to the Commandment “Thou shalt not steal.” Having in mind the
nature of the audience, the proclivities of music critics, the
unlikelihood that borrowing diverts profit from the original composer, we
may agree that the law can afford to take a permissive attitude
toward cross-lifting among serious musical works.229
Although Kaplan wrote his analysis before fair use was codified in the 1976
Copyright Act, courts had recognized fair use before the passage of the
1976 Act, as Kaplan discussed in other parts of his boo2k3.0 Notably,
however, Kaplan does not conceptualize music borrowing as a fair use,
notwithstanding his discussion of one of the fair use factors recognized by Justice
Story, i.e., diminishing the profits of the original.231 Instead, as the lead-in to
that same paragraph makes clear, Kaplan analyzes the issue of music
borrowing under infringement, suggesting that borrowing some music from
another work is permissible, as long as “the later composer manipulates
what he has taken.”232 In particular, Kaplan points to (1) “the nature of the
) “the proclivities of music critics,” and (
) “the unlikelihood
that borrowing diverts profitfrom the original composer.2”33 Presumably,
the first factor stems from the test of substantial similarity, as infringement
is analyzed from the point of view of the intended audience of the work.
This is not to suggest that applying fair use to music cases was not
ever entertained before the 1976 Act. Alfred Shafter, for example, discussed
possible fair use in music saying thatamong the legitimate uses of a
copyrighted work is “the right ofquotation for purposes of research,
commentary, criticism or study.”234 Shafter limits the copying of music such as “the
use of a few bars of a song” to these four purposes in his discussion of fair
use, and he analyzes examples of copying of music in books, a different
228 BENJAMIN KAPLAN, AN UNHURRIED VIEW OF COPYRIGHT 53 (1967).
230 See, e.g., id. at 17, 21, 28, 67–70.
231 See Folsom, 9 F. Cas. at 348; KAPLAN, supra note 228, at 53, 67.
232 KAPLAN, supra note 228, at 53.
234 ALFRED M. SHAFTER, MUSICAL COPYRIGHT 184 (1932).
medium.235 This kind of copying of music resembletsextual quotation for
use in a literary work. A harder case is presented when the copying of a few
bars of music for use is used in anothermusical work, or a same-type
transformative work. Could such use in eth same medium of music constitute
fair use? Shafter, writing before the Court’s modern fair use jurisprudence,
ignored the question and, without discussing the purpose of use, argued that
copying the style of music is fair use as long as “the melody itself is
original in the main.”236 Like Kaplan, Shafter focused on infringement over fair
use.237 E. DeMatt Henderson went a step further in discussing the test of
infringement for music cases in depth, but also mentioning the possibility of
a fair use in music: “A ‘fair use’ of a prior composition is allowed by the
copyright Act, and this issue is largely in the discretion of the court.”238
The historical treatment of music borrowing—with some borrowing
permitted under the basic test of infrni gement—helps to explain the results
of the survey. Out of 119 cases reaching a judgment, only 15 (13%) found
infringement.239 Thus, in the vast majority of music cases, the defendants
have prevailed without needing to rely on a fair use defense. Instead, the
courts have found no infringement, commonly due to the defendant’s lack
of access to the plaintiff’s song or the lack of substantial similarities, both
of which are elements of the basic test of infringement2.40 Logically
speaking, the question of infringement precedes fair use, so the courts’ preference
for deciding music cases on the basicliability question makes sense. The
result is also consistent with the historical treatment of music borrowing by
early cases predating the 1976 Copyright Act.
c. Lack of Clear Precedent for Non-Parody Music Fair Use
Relatedly, the lack of clear precedent recognizing a non-parody fair
use in music cases may also explain why both litigants and courts avoid it.
The lack of clear precedent establishes,over time, a self-reinforcing
feedback loop as courts and litigants optfor the tried-and-true precedent
establishing non-infringement in music cases.241
236 Id. at 185.
237 See id. at 176–87.
238 Henderson, supra note 110, at 152.
239 See Music Survey Data, supra note 157.
240 Arnstein, 154 F.2d at 468–69.
241 See generally James Gibson, Risk Aversion and Rights Accretion in Intellectual Property,
116 YALE L.J. 882, 899–903 (2007) (positing that uncertainty in fair use can create “doctrinal
feedback” by which prospective fair users end up licensing potentially fair uses of works, thereby
resulting in an expansion of copyright). Gibson focuses on licensing as an alternative to litigating
By contrast, fair use in music borrowing raises a difficult question
whether copying portions of someone else’s music and incorporating it into
one’s own song “adds something new, with a further purpose or different
character, altering the first [work] with new expression, meaning, or
message.”242 The case law on transformative use has more often focused on
articulating a transformative purpose, which perhaps is more contestable or
difficult to describe in the case ofa musical work borrowing from another
musical work.243 Beyond parody (a comment on the original work), courts
have not had the opportunity to articulate a transformative purpose in music
borrowing to create another musical work. The U.S. Court of Appeals for
the Second Circuit’s 2013 decision in Cariou v. Prince offers a different focus
on transformative content, which is perhaps a better fit with the kind of music
borrowing discussed herein2.44 In applying fair use to music cases, courts
would have to confront these different approaches to transformative use.
Take, for example, the “Blurred Lines” case. The court or jury would
have had to consider whether the song adds new expression to whatever it
has borrowed from Marvin Gaye’s “Got to Give It U24p5.”Pharrell and
Thicke could argue it does so in the form of both music and lyrics that give
the new song a distinct twenty-first century dance vibe.
Although the lyrics of the two songs are different in words, they both
involve a man’s sexual pursuit of a woman2.46 Marvin Gaye uses the
metaphor of dancing in the beginning of the song, but it soon becomes clear the
pursuit is (also) about sex: “But if you see me spread out and let me in/Baby
just party high and low/Let me step into your erotic zone/Move it up/Turn it
’round/Shake it down/OOWWWW.”247 The title “Got to Give It Up” thus
has double meaning, relating to both dnacing and having sex. By contrast,
in Pharrell’s song, the woman is already attached to another man, but the
narrator of the song wants to “liberate” he2r4.8 There’s no dance involved.
Though she is “a good girl,” she “[m]ust wanna get nasty” (presumably
meaning having sex) with him in the narrator’s view2.49 Although Pharrell’s
fair use. I use feedback loop more broadly herteo encompass the entire range of alternatives to
fair use that courts and litigants may choose instead of fair use.
242 Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994).
243 See Reese, supra note 45, at 486.
244 See Cariou v. Prince, 714 F.3d 694, 706 (2d Cir. 2013).
245 See Williams v. Gaye, 885 F.3d 1150, 1183 (9th Cir. 2018).
246 See Marvin Gaye Lyrics, “Got To Give It UpA,”ZLYRICS, https://www.azlyrics.com/
lyrics/marvingaye/gottogiveitup.html [https://perma.cc/C473-YZUP]; see Robin Thicke Lyric,s
“Blurred Lines,” AZLYRICS, https://www.azlyrics.com/lyrics/robinthicke/blurredlines.html [https://
247 See Marvin Gaye Lyrics, “Got To Give It Up,” supra note 246.
248 See Robin Thicke Lyrics, “Blurred Lines,” supra note 246.
music bears some similarity to the ebat of Marvin Gaye’s song, there’s no
mistaking that Pharrell’s music sounds like a contemporary pop song, while
Gaye’s song sounds like an older groove or funk song from the 70s. A
reasonable observer arguably can perceive that whatever beat or music Pharrell
copied from Marvin Gaye has been altered with new, contemporary
expression and meaning for the twenty-first century. There is arguably, in other
words, a transformative character to Pharrell’s use.
But is there a transformative purpose as well? And should a showing
of such a purpose be required for Pharrell and Thicke to prevail on fair use?
The answer to both questions is unclear. It is easier to discuss “purpose”
when referring to a novel than it is to musical notes or a song. After all,
what’s the meaning or purpose of sounds or musical notes? In one respect,
all music is meant to entertain. But the U.S. Supreme Court’s 1994 decision
in Campbell v. Acuff-Rose Music instructs that a parody song, even if
entertaining, has a legitimate fair usepurpose to comment on the work
parodied.250 Perhaps one purpose of “Blurred Lines” might be historical
transformation, to recall an older work but to spin out a new work that is fresh
and modern. Joseph Liu and Justin Hughes have each argued that as a work
gets older, it should be subject to a more generous scope fair use2.51
Applying that approach here would mean that it should be easier for a songwriter
to make a fair use of an older songthan a contemporary one. For example,
the passage of time—over 35 years—from Marvin Gaye’s 1977 work
should perhaps weigh in favor of fair use. Arguably, Pharrell borrowed
some elements of Gaye’s song in 2014, but added new meaning and
expression to the old vibe of Gaye’s song. But, if Pharrell andThicke were
unsuccessful in articulating a new purpose in borrowing elements of Gaye’s song,
should that count against their fair use defense?
Courts have thus far avoided this difficult question of how
transformative purpose and character can be apipeld to music borrowing outside of
parodies. Although the defendants appear to be largely responsible for not
pursuing fair use defenses in music cases, the historical treatment of
musical borrowing by courts before the 1976 Act and the lack of clear precedent
recognizing non-parody fair use in music probably contribute to the
defendants’ avoidance of fair use.252
IV. TRADEOFFS OF FAIR USE AVOIDANCE
This Part considers the tradeoffsof fair use avoidance in music
cases.253 Avoidance is not without some advantages, at least from the
perspective of courts in handling music cases. Ultimately, however, the lack of a
clear fair use precedent for non-parody music cases may have the
deleterious effects of chilling creativity and producing “copyright clutter” by which
bits of music in older copyrighted works are subject to property rights and
viewed as off-limits to what would otherwise be transformative uses by
From the standpoint of courts, fairuse avoidance offers several
advantages. As discussed later, howev,erit is not clear whether these
advantages outweigh the potential harms to music creation. This section
focuses on the chief advantages that fair use avoidance offers to courts.255
1. Alternatives Simpler for Courts to Apply Than Fair Use
One potential advantage of fair use avoidance is that the alternative
doctrines courts have applied in the majority of music cases (typically
finding in favor of defendanst and against infringement) are easier to apply.
These alternative doctrines operate like an on-off switch—the factor is
present or not. No balancing of multiple factors is needed. Although simplicity
is not necessarily a virtue in the legal system if it leads to the wrong result,
simplicity at least enables courts to tarin their focus on a single factor—for
example, no access to the work, lack of similarity, only unprotected
elements copied, or de minimis copying—instead of the four-factor balancing
test of the fair use doctrine. The open-endedness of fair use’s balancing test,
which must be applied on a case-by-case basis, is both a virtue and a vice. It
offers flexibility but at the price of predictability.256 This complex inquiry is
harder to determine and predict than a single-factor test.257 As one
commentator notes, “fair use is vague and unpredictable in application, particularly
when it intersects with the derivative works right.”258
253 See infra notes 253–313 and accompanying text.
254 See infra notes 301–313 and accompanying text.
255 See infra notes 256–292 and accompanying text.
256 Christina Bohannan, Taming the Derivative Works Right: A Modest Proposal for Reducing
Overbreadth and Vagueness in Copyright, 12 VAND. J. ENT. & TECH. L. 669, 685 (2010).
257 See id.
258 Id. at 670.
2. Courts Avoid the Difficult Question About Transformative Works Versus
Another advantage of fair use avoidance in music cases is avoiding the
difficult doctrinal question about atnrsformative works versus derivative
works, discussed above in Part I, thawtould be raised by such a fair use
defense. The use of a portion of a musical work to create another musical
work, such as in the “Blurred Lines” case, would enmesh a court in this
difficult question. Although a few courts have touched upon the issue, the case
law is far from settled. Indeed, the Second Circuit’s own case law
discussing transformative use in 2015 inAuthors Guild, Inc. v. Google, Inc. and in
2013 in Cariou emphasize two different approaches to the
transformative purpose and transformative content, respectively.259 In 2018,
in Oracle America, Inc. v. Google LLC, the Federal Circuit, while conceding
the possibility that a use of a copyrighted work to create new expression in a
new context could be transformati,vefocused instead on finding a
transformative purpose, an approach that mirrors the competing strands of the
doctrine found in prior decisions, without providing clarity to the issue.260
Thus, to borrow Cass Sunstein’s theory of judicial minimalism, fair
use avoidance in music cases may be a convenient way for the courts to
reach the desired outcome of the castehrough an incompletely theorized
agreement.261 A fair use decision in one of the music cases would likely
require greater theorization of the whole concept of transformative works and
its relationship with and distinctionfrom an infringing derivative work.
Instead of getting mired in such a doctrinal thicket, courts can reach the same
desired outcome in a copyright case by resting on simpler reasons.
Substantial similarity, lack of protection for uncopyrightable elements, and the de
minimis defense are relatively simple, straightforward inquiries based on a
relatively “low-level” theory, if any theory at all.262
3. Courts Avoid Possible Pandora’s Box of Music Appropriation
Relatedly, fair use avoidance in music cases permits courts to avoid
opening a potential Pandora’s box of music appropriation. Perhaps this
criticism is a straw man, given that theCariou decision recognized fair use for
many of Richard Prince’s appropriation artwork, apparently without
disas259 See supra notes 46–76 and accompanying text.
260 Oracle America, Inc. v. Google LLC (Oracle II), 886 F.3d 1179, 1201–02 (Fed. Cir. 2018).
261 See Cass R. Sunstein, Incompletely Theorized Agreements, 108 HARV. L. REV. 1733, 1739
262 Id. at 1740 (discussing “low-level” principles versus “high-level” principles in the context
of incompletely theorized agreements).
trous effect on the art community.263 One difference, though, is that Richard
Prince is well-recognized among the art community as an appropriation
artist, and appropriation art is accepted by many in the art world as a form of
art.264 Indeed, prominent museums, including the Metropolitan Museum of
Art, the Museum of Modern Art, and the Art Institute of Chicago, filed an
amicus brief supporting Prince’s argument of fair use in theCariou case.265
By contrast, the recording industry and music publishers have not publicly
embraced music appropriation as an accepted practice, notwithstanding the
history of borrowing in music.266 Parody songs are one thing. But non-parody
songs strike at the core of the music industry. Although artists do borrow from
other works and some openly admit it, neither the recording nor publishing
industry has openly embraced appropriation or borrowing in music, not even
in the creation of new (potentially money-generating) songs.267
Fair use in music could operate like a Pandora’s box to music
appropriation because it might potentially allowgreater copying than the test of
infringement or de minimis doctrine. Indeed, the determination of the
affirmative defense of fair use often follows a finding of infringement, and
the de minimis doctrine, as its name implies, is meant to deal with trivial
copying. By contrast, fair use hasno hard-and-fast limit on the amount of
copying. When a defendant’s use of awork is transformative, courts
recognize that fair use permits a defendant to copy an amount that is reasonable
for the transformative use.268
Of course, allowing greater music borrowing under the fair use
doctrine may be, in the end, good for music creation and society. A court,
however, might be more cautious about such a ruling if it feared disrupting the
music industry in a significant way.
4. Judicial Economy
Fair use avoidance also may result injudicial economy. The alternative
bases courts have used in music casesare more amenable to summary
disposition than fair use, thereby reducing litigation and administrative costs.269
Take, for example, Guy Hobbs’s complaint against Elton John for
allegedly copying Hobbs’s love song titled “Natasha.”270 Seeking a publisher,
Hobbs had sent his work to Big Pig Music in 1983 but was unsuccessful in
landing a publisher.271 Then, in 1985, Elton John and Bernard Taupin
composed a song “Nikita” that was pulibshed by the same Big Pig Musi2c72.
Hobbs sued John, Taupin, and Big Pig Music for copyright infringement
based largely on similarities in the lyrics, as well as the theme of a doomed
love story involving women named “Natasha” and “Nikita,” respectively2.73
The district court, however, dismissed the complaint upon a motion to
dismiss for failure to state a copyright claim, and the Seventh Circuit
affirmed.274 The Seventh Circuit held that the two works were not
substantially similar.275 The court discounted the key similarities proffered by Hobbs,
namely, that his song used the phrase “to hold you” three times and John’s
song used the phrase four times; that Hobbs’s song used the phrase “you’ll
never know” six times and John’s song used the same phrase three times;
and that “Natasha” and “Nikita” were similar Russian-sounding female
names.276 For a court to grant a motion to dismiss and to decide the case
merely on the allegations, where some similarities in the two songs existed,
is questionable. Yet the test of infringement has been interpreted by courts
to afford such judicial economy.277 Although acknowledging the two songs
had similar expression, the Seventh Circuit found the similarities were
unprotected and “rudimentary, commonplace, standard, or unavoidable in
popular love songs.”278
In the backdrop of the case is the question whether a successful artist
like Elton John would have even been aware of Hobbs’s work in the first
place. On the motion to dismiss, the court did not have an opportunity to
consider evidence regarding Big Pig Music’s receipt of and possible use of
Hobbs’s work.279 Under the Second Circuit’s substantial similarity test, set
forth in its 1946 decision inArnstein v. Porter, a defendant’s reasonable
access to a work is circumstantial evidence of copying if probative
similari270 Hobbs v. John, 722 F.3d 1089, 1091 (7th Cir. 2013).
276 Id. at 1096.
277 See id. (comparing two musical works that hadsome common elements, but concluding
that “as a matter of law” they are not substantilaly similar) (citing Peters v. West, 692 F.3d 629,
633-34 (7th Cir. 2012)).
279 Hobbs, 722 F.3d at 1094.
ties between the two works can be shown2.80 Such access can be shown by
evidence that an intermediary of the defendant’s had a copy of the work, so
if Hobbs’s allegation of Big Pig Music’s receipt of his work was true, it
might be enough, with further fact development, to establish a prima facie
case that Elton John had access to the wor2k8.1 In some cases, the lack of
sufficient allegation or evidence of access can provide a basis for a court to
dispose of the case.282 But, here, the allegation might be sufficient to survive
a motion to dismiss, so the court instead rested on the lack of substantial
similarity between the two songs by holding that the key portions of
Hobbs’s song allegedly copied were simply not copyrightable.283
Of course, one might question whether fair use even Hfiotsbbs v.
John. As discussed in Part III, where the case involves a well-known
defendant who is established in the music industry and an unestablished
plaintiff, the facts may be such that the defendant never knew the plaintiff, much
less his work.284 The fact scenario of an unesatblished plaintiff suing an
established defendant does raise the possibility, if not worry, of a plaintiff
seeking a deep pocket on a trumped-up calim. In such case, fair use simply
does not fit.285
We cannot automatically assume, however, that every case involving
an unestablished plaintiff suing an established artist involves a trumped-up
claim. Arguably, Hobbs presented a plausible basis in his allegations to
suggest his claim was not frivolous. Likewise, in the Seventh Circuit’s 2012
case Peters v. West, Vince Peters, an aspiring hip-hop artist, alleged that the
defendant, Kanye West, had access to Peters’s work “Stronger” through an
intermediary of Kanye West2.86 West eventually came out with a mega-hit
“Stronger” that allegedly contained smo e of the same elements as in
Peters’s “Stronger,” including the refreence to Nietzsche’s quote “what does
not kill me, makes me stronger;” use of the rhymes “longer” and “wronger”
(a slang term); and a line in both songs expressing desire for a woman like
280 Arnstein v. Porter, 154 F.2d 465, 468–69 (1946);see Loomis v. Cornish, 836 F.3d 991,
994–95 (9th Cir. 2016).
281 See Jorgensen v. Epic/Sony Records, 351 F.3d 46, 54 (2d Cir. 2003) (requiring a showing
that defendant had “reasonable possibility of access,”such as through intermediaries in contact or
connected with defendant).
282 See, e.g., Arnett v. Jackson, No. 5:16-CV-872-D, 2017 WL 3493606, at *4 (E.D.N.C. Aug.
14, 2017) (granting defendants’ motion to dismiss because “Arnett fails to plausibly allege access
as required to state a claim for copyright infringement”).
283 Hobbs, 722 F.3d at 1091.
284 See supra notes 209–211 and accompanying text.
285 See id.
286 Peters v. West, 692 F.3d 629, 631 (7th Cir. 2012). The alleged intermediary was a business
manager and close friend of Kanye West, who aglledly met with Vince Peters, listened to his
song, and said he would produce the recording if Peters found a record label. Id.
“Kate Moss.”287 The allegations of both access and copying do seem
stronger (pun intended) than in the case against Elton John28.8 But even on
these allegations, the Seventh Circuit affirmed the district court’s dismissal
of the case for failure to state a copyright claim.289
By contrast, fair use, as an affirmative defense often involving the
need for discovery, is rarely decided on a motion to dismiss.290 As one court
It is easy to see why a fair use defense typically cannot be analyzed
upon a Rule 12(b)(
) motion. “Fair use is a mixed question of law
and fact.” . . . The court’s determination involves weighing at least
four statutory factors,which usually requires making factual
findings or relying on undisputed or admitted material facts.291
Although one might disagree with the courts’ dismissals in Peters and Hobbs
before discovery, they do exemplify how courts can use the test of substantial
similarity to dispose of music cases on a motion to dismiss2.92 Fair use would
not typically afford courts such a possibility, early in the litigation.
Fair use avoidance has its disadvantages as well. Of greatest concern is
the possible harm the lack of clear precedent recognizing non-parody music
fair use has on the creation of music.
1. Possible Chilling Effect
It is hard to quantify what, if anye,ffect the lack of a clear precedent
has on a particular activity or industry. Lack of a clear fair use precedent
can cut both ways, given the uncertainty in what the law actually is. Some
artists may take advantage of the lackof a clear precedent, viewing it as a
blank check or at least a gray area to borrow other music in the creation of
287 Id. at 635–36.
288 See Hobbs, 722 F.3d at 1093–96.
289 Peters, 692 F.3d at 631.
290 See, e.g., BWP Media USA, Inc. v. Gossip Cop Media, LLC, 87 F. Supp. 3d 499, 505
(S.D.N.Y. 2015) (“The Court thus finds that it is possible to resolve the fair use inquiry on a
motion to dismiss under certain circumstances, but observes that there is a dearth of cases granting
such a motion.”); Katz v. Chevaldina, 900 FS.upp. 2d 1314, 1315–17 (S.D. Fla. 2012) (court
holding that whether the use of a photograph was fairuse could not be resolved at the motion to
dismiss stage). But see Brownmark Films, LLC. v. Comedy Partners, 682 F.3d 687, 690 (7th Cir.
2012) (upholding the district court’s dismissal based on a parody fair use defense).
291 Katz, 900 F. Supp. 2d at 1315–16 (internal citations omitted).
292 See, e.g., Hobbs, 722 F.3d at 1096 (affirming district court’s grant of defendant’s motion
to dismiss); Peters, 692 F.3d at 636 (affirming dismissal of suit for copyright infringement)
their own, especially if such borrowing is a widespread practice among
other artists.293 To take an extreme example of borrowing, Girl Talk, who
samples, manipulates, and mashes up other artists’ recordings into his songs,
presumably operates under the general authority of fair us2e9.4 So far, Girl
Talk has not been sued for copyright infringement.295
By contrast, the lack of a clear fair use precedent in music might chill
other artists from borrowing or building on the works of others.
Independent and unestablished artists might be particularly susceptible to such a
chilling effect out of fear of either being sued or not being accepted as a true
artist in the music industry. To the extent a new artist like Sam Smith
becomes successful with a hit song thatis later accused of being plagiarized
from an older song, the lack of a clear fair use precedent militates toward
the artist’s conceding to a license and the payment of royalties to deal with
claims of copyright infringement.
In the appeal of the verdict against Pharrell and Thicke, 212 musicians
and songwriters submitted an amici curiae brief to the Ninth Circuit
expressing great concern about the decision and its possible effect on music.296
The artists included members of successful bands including Train; Linkin
Park; Earth, Wind & Fire; The Black Crowes; Three 6 Mafia; Great White;
Poison; Fall Out Boy; Tool; The Go-Go’s; Weezer; and Tears for Fears, as
well as individual artists R. Kelly; John Oates of Hall & Oates; Hans
Zimmer; Jennifer Hudson; Jean Baptist;e Evan Bogart; and Danger Mouse29.7
According to the brief, Pharrell and Thicke’s song was a creation “inspired
by” a prior work, which, the musicians argued, is how all music is created:
Amici are concerned about the peont tial adverse impact on their
own creativity, on the creativity offuture artists, and on the music
industry in general, if the judgment in this case is allowed to stand.
The verdict in this case threatens to punish songwriters for creating
new music that is inspired by prior works. All music shares
tion from prior musical works, especially within a particular
musical genre. By eliminating any meaningful standard for drawing the
line between permissibleinspiration and unlawfulcopying, the
judgment is certain to stifle creativity and impede the creative
process. The law should provide clearre rules so that songwriters can
know when the line is crossed, or at least where the line is.298
2. Copyright Clutter
Another possible harm exacerbated, if not created, by the lack of a clear
fair use precedent in music is what I wlli characterize as “copyright clutter.”
The concept of “clutter” has been used in other areas of intellectual property,
including patent301 and trademark,302 and thus is not unique to copyright.
Obtaining a copyright for an original work is easy because it happens upon
fixation of the work automatically, by operation of la3w03. Given the relatively
long term of copyright (e.g., life of the author plus seventy years), works
dating back to 1923 are still under copyright toda30y4. Many of these musical
works have a limited commercial shelf lfie, both in terms of sales and public
performances. Even the biggest hits of yesterday are not as popular as they
once were. Because copyrights do not needto be registered or renewed by
299 Id. at 9.
300 Complaint for Declaratory Relief at 5, Williams v. Bridgeport Music, Inc., No. LA
CV1306004 JAK (AGRx), 2015 WL 13648068 (C.D. Cal. Ag.u 15, 2013) [hereinafter Pharrell
301 See Arti K. Rai,Patent Validity Across the Executive Branch: Ex Ante Foundations for
Policy Development, 61 DUKE L.J. 1237, 1250 (2012). “Patent clutter” describes a situation in
which many patents (some of which are dormanotr not exploited through the manufacturing of
the invention) overlap over the same area of technology, making it difficult to conduct research or
further innovation in the area. Id.
302 See Graeme B. Dinwoodie,Territorial Overlaps in Trademark Law: The Evolving
European Model, 92 NOTRE DAME L. REV. 1669, 1687 (2017). “Trademark clutter” refers to many
registrations of trademarks (some of which perahps are not being used in commerce), making it
difficult to find a new trademark to register. Id.
303 See 17 U.S.C. § 102(a) (2012).
304 See id. § 302(a) (“Copyright in a work created on or after January 1, 1978, . . . endures for
a term consisting of the life of the author and 70 years after the author’s death.”).
payment of maintenance fees, many older works that are not being utilized or
exploited are still protected by copyrigh.t As a result, they have the potential
to create “copyright clutter,” with many older musical works—including
certain combinations of notes containde therein—becoming off-limits to
songwriters who might otherwise build upon those works if they operated under a
clear, non-parody music fair use precedent.
Copyright clutter might not have been a big concern in the past.
Laches used to be a defense against copyright claims that could have been
brought long ago.305 But after 2014, when the Supreme Court, inPetrella v.
Metro-Goldywn-Mayer, Inc., reversed lower court precedent that had
recognized laches as a defense to copyright claim30s6, copyright clutter is now
more real. There has already been a slight uptick in lawsuits involving older
musical works, including Taurus’s lawsuit against Led Zeppelin for its 1971
hit song “Stairway to Heaven.”307 Although Led Zeppelin was found not to
have infringed, the band still had to fight the claim of copyright
infringement at trial and any subsequent appeal3.08 The Supreme Court’s laches
decision in Petrella has given new life to many lawsuits involving older
musical works that were allegedlyinfringed by more recent music30.9 As one
commentator described, “[f]ederal courts were awash last year in copyright
infringement lawsuits claiming popular songs stole key elements from
earlier tunes.310 Those targeted included the biggest names in contemporary
music—Justin Bieber, Kanye West,Ed Sheeran—as well as musical
legends, like Notorious B.I.G. and Eric Clapton.”311
C. Overall Assessment
A greater need exists today for a clear, non-parody music fair use
ruling as the U.S. Supreme Court’s 1994 decision iCnampbell v. Acuff-Rose
Music established for parodies. Although the music sector has survived and
seemingly flourished without such a fair use ruling for many years, the
recent spate of music lawsuits followingPetrella will likely test the limits of
305 See Petrella v. Metro-Goldwyn-Mayer, Inc., 695 F.3d 946, 951 (9th Cir. 2012) (holding
that the plaintiff’s copyright infringement claim was barred by the doctrine of laches),rev’d, 134
S. Ct. 1962 (2014).
306 See Petrella v. Metro-Goldwyn-Mayer, Inc., 134 S. Ct. 1962, 1972–77 (holding that laches
cannot be asserted to preclude plaintiff’s damages claim).
307 Bill Donahue, 2016: The Year the Music Sued, LAW360 (Jan. 13, 2017), https://www.law
308 See Skidmore v. Led Zeppelin, No. CV 15-03462 RGK (AGRx), 2016 WL 6674985, at *1
(C.D. Cal. Aug. 8, 2016).
309 Donahue, supra note 307.
the single-factor doctrines (for example, access, similarity, stock elements,
de minimis doctrine) that courts haveused in the past toresolve such
disputes.312 Even Bruno Mars’s smash hit “Uptown Funk,” which is one of
only thirteen songs in history to earn the RIAA’s highest award of diamond
status for sales of over 10 million copies, has been the subject of no fewer
than three different copyright lawsuits: two by 1970s musicians the Gap
Band and the Sequence, respectively, and one by 1980s musicians Zapp and
Collage, all of whom allege that Burno Mars and the other composers of
“Uptown Funk” copied elements of the plaintiffs’ songs and committed
infringement.313 Regardless of the outcome of these lawsuits, it is striking that
one of the top-selling songs in history written and performed by one of the
top-selling artists in history is not immune from multiple allegations of
plagiarism by artists from the 1970s and 9180s. It could be that Bruno Mars
borrowed elements from prior songs as alleged in the lawsuits, but whether
such borrowing constitutes infringement cannot be fully answered with
consideration of fair use. Given the pervasiveness of borrowing in music
among even the most successful and esatblished artists in both modern and
classical times, a clear precedent atht recognizes that some borrowing of
music to create another musical work is a fair use in some cases might
strike the right chord for music creativity.
This Article provides the first comprehensive study of fair use in music
cases. The result of the empirical studyis puzzling. Despite the relatively
high number of music cases decided under the 1976 Copyright Act, no
decision recognizes non-parody fair use of a musical work to create another
musical work except a recent decision whose applicability is marginal because
it only involved the copying of wordsof a rap that contained no
accompanying music. Few music cases have even considered a fair use defense.
Although this Article posited several hypotheses to explain this fair use
avoidance, it remains inconclusive whetherthe lack of a clear precedent
recognizing music fair use has harmed the creation of music. The potential
problem of “copyright clutter,” however,and the resulting quarantine of note
combinations from older, unutilized, and underutilized musical works may
make the need for a clear fair use precedent more pressing today.
312 See id. (compiling recent music lawsuits).
313 See Michelle Fabio,Bruno Mars and Mark Ronson’s ‘Uptown Funk’ Faces (Yet Another)
Copyright Infringement Suit, FORBES, (Dec. 30, 2017), https://www.forbes.com/sites/michellefabio/
2 Compare 17 U.S.C. § 107 ( 2012 ) (“[T]he fair use of a copyrightewdork . . . is not an infringement of copyright.”) (emphasis added),with id . § 110 ( 3) (limiting exclusive rights of copyholders to permit, among other things, “performance of a nondramatic literary or musical work or of a dramatico-musical work of a religious nature . . in the course of services at a place of worship”).
3 See Authors Guild v . Google, Inc., 804F.3d 202 , 220 ( 2d Cir . 2015 ) (citing WILLIAM F . PATRY, PATRY ON FAIR USE § 4.1 ( 2015 )).
4 Authors Guild , 804 F.3d at 220; Barton Beebe , An Empirical Study of U.S. Copyright Fair Use Opinions , 1978 - 2005 , 156 U. PA. L. REV . 549 , 610 - 12 ( 2008 ) (suggesting “that the outcome of factor two typically hasno significant effect on the overall outcome of the fair use test,” but also finding greater success of fair use for factual works versus creative works) (emphasis added).
5 See Williams v . Bridgeport Music, IncN.,o. LA CV13-06004 JAK (AGRx) , 2015 WL 4479500, at *1 ( C.D. Cal . July 14 , 2015 ), aff'd in part, rev'd in part sub nom . Williams v. Gaye , 885 F.3d 1150 ( 9th Cir . 2018 ).
6 Stelios Phili , Robin Thicke on That Banned Video, Colalborating with 2 Chainz and Kendrick Lamar, and His New Fil, mGQ (May 6 , 2013 ), http://www.gq.com/story/robin-thicke -interviewblurred-lines-music-video-collaborating-with-2-chainz-and-kendrick-lamar-mercy [https://perma . cc/A6BY-4JRV].
7 See, e.g., Suntrust Bank v . Houghton Mifflin Co.,268 F.3d 1257 , 1267 - 69 ( 11th Cir . 2001 ) (discussing the importance of transformative use in the context of a parody);see also Samuelson, accompanying words. Music is a succession of pitches or rhythms, or both, usually in some definite pattern .”). The Copyright Act does not define “musical work .”
16 See infra notes 147-148 and accompanying text; see also Music Copyright Infringement Resource: Case Lis,t USC GOULD SCH . L., http://mcir.usc.edu/cases/Pages/ [https://perma.cc/2VGVXKZP] (setting out a comprehensive list of music disputes heard in federal court since 1844 ).
17 See VMG Salsoul, LLC v . Ciccone, 824 F.3d 871 , 877 - 80 ( 9th Cir . 2016 ); Answer of Defendants Madonna Louise Ciccone and Webo Girl uPblishing, Inc . to theComplaint at 5, VMG Salsoul , LLC v . Ciccone, No. CV 12-5967 -SVW(FMOx) (C.D. Cal . Feb. 12 , 2013 ).
18 See Skidmore v. Led Zeppelin, No. CV 15-03462 RGK (AGRx) , 2016 WL 6674985, at *1 ( C.D. Cal . Aug. 8 , 2016 ); Answer of DefendantsJames Patrick Page, Robert Anthony Plant and John Paul Jones at 28, Skidmore v. Led Zeppelin , No. 2 : 15 -cv-03462 RGK (AGR) (C.D. Cal . 2016 May 20 , 2015 ).
19 See, e.g., Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539 , 564 - 66 ( 1985 ) (discussing fair use for quotations in the context of literary works).
20 See Kenneth D. Crews , The Law of Fair Use and the Illusion of Fair-Use Guideline,s62 OHIO ST . L.J. 599 , 605 ( 2001 ).
21 See, e.g., Campbell , 510 U.S. at 579 ( finding that parody is clearly fair use).
30 17 U.S.C. § 107 .
31 See Campbell, 510 U.S. at 577 ( noting that because the statute defining fair use calls for a case-by-case approach, the task of evaluating a given fair use cannot be reduced to simple brightline rules).
32 See 17 U.S.C. § 107 . Perhaps Lloyd Weinreb encapsulated fair use the best when he stated that “fair use has historically been and ought to remain what its name suggests: an exemption from copyright infringement for uses that arefair .” Lloyd L. Weinreb , Fair's Fair: A Comment on the Fair Use Doctrine , 103 HARV. L. REV. 1137 , 1138 ( 1990 ). Of course, fair use is often justified as serving utilitarian goals to spur criticism, the creation of new works, and other purpoSsees . Frank P. Darr, Testing an Economic Theory of Copyrigh:t Historical Materials and Fair Use , 32 B.C. L. REV . 1027 , 1028 - 30 ( 1991 ).
33 Campbell, 510 U.S. at 579.
34 Id. (emphasis added) (internal citations omitted).
43 See infra notes 241-252 and accompanying text.
44 See, e.g., Castle Rock Entm't, Inc . v. Carol Publ'g Grp., 150 F.3d 132 , 143 ( 2d Cir . 1998 ) (“Although derivative works that are subject to theauthor's copyright transform an original work into a new mode of presentation, such works-unlike works of fair use-take expression for purposes that are not 'transformative .'”).
45 R. Anthony Reese , Transformativeness and the Derivative Work Righ ,t 31 COLUM. J.L. & ARTS 467 , 485 ( 2008 ) ;see also Michael D. Murray,What Is Transformative? An Explanatory Synthesis of the Convergence of Transformation and Predominant Purpose in Copyright Fair Use Law , 11 CHI.- KENT J. INTELL. PROP . 260 , 273 - 92 ( 2012 ) (concluding, on the basis of a survey of federal appellate decisions, that with respect to ethtransformative factor of the test, the courts focus on transformative purpose because each and every approved fair use involved a change in the predominant purpose for the use of the work and not simply a change in the character (the form or contents) of the work ).
83 Folsom v. Marsh , 9 F. Cas . 342 , 344 -45 (C.C.D. Mass . 1841 ) (No. 4901 ).
84 See Ty , Inc. v. Publ'ns Int'l Ltd., 292 F.3d 512 , 517 ( 7th Cir . 2002 ) (noting the harm that would result for book reviews generally if quotations were deemed to be copyright infringement).
85 See Folsom , 9 F. Cas . at 344-45.
86 Harper & Row Publishers, 471 U.S. at 562.
87 Id. at 569.
88 See Folsom , 9 F. Cas . 344 - 45 .
89 See infra notes 91-98 and accompanying text.
90 See infra notes 107-138 and accompanying text.
91 See ROBERT W. WEISBERG , CREATIVITY: BEYOND THE MYTH OF GENIUS 199-209 ( 1993 ) ; Timothy Anglin Burgard , Picasso and Appropriation , 73 ART BULL . 479 , 479 ( 1991 ) ; Rachel Isabelle Butt, Appropriation Art and Fair U,se25 OHIO ST . J. ON DISP. RESOL . 1055 , 1060 ( 2010 ) ; Stephen Bevan, Picasso 'Stole the Work of African Artists,'TELEGRAPH (Mar . 12, 2006 ), http://www.telegraph.co.uk/news/worldnews/africaandindianocean/southafrica/1512804/ Picassostole-the-work-of-African-artists .html [https://perma.cc/TWL8-V5HH]; Andrew Meldrum, Stealing Beauty, GUARDIAN (Mar. 15 , 2006 ), https://www.theguardian.com/artanddesign/2006/mar/15/ art [https://perma.cc/F4D3-4J83].
92 See generally SEBASTIAN SMEE, THE ART OF RIVALRY: FOUR FRIENDSHIPS, BETRAYALS, AND BREAKTHROUGHS IN MODERN ART ( 2016 ) (describing the fierce competition between four pairs of famous artists that drove each to new heights).
93 See Jason D. Sanders , Appropriating Artists Face Uncertainty in Interplay Between First Sale and Fair Use Doctrines , N.Y. ST. B.J. , July-Aug . 2005 , at 18-19.
94 Cariou, 714 F. 3d at 712 (court finding Prince's artworks were fair use of Cariou's photographs); Blanch v . Koons , 467 F.3d 244 , 259 ( 2dCir . 2006 ) (court finding Koons' use of “Silk Sandals” to be fair use and therefore non-infringing) .
95 See Rogers v. Koons , 960 F.2d 301 , 310 - 12 ( 2Cdir . 1992 ) (court rejecting fair use after finding each of the statutory four factosr militated against it ); Campbell v. KoonsN,o. 91 Civ. 6055(RO) , 1993 WL 97381, at *1, *3 ( S.D.N.Y. Apr1 ., 1993 ) (court finding Koons liable for copyright infringement based on Koons' copying of Campbell's photograph) .
96 Butt, supra note 91, at 1061.
97 Id. at 1062.
104 Oracle II , 886 F. 3d at 1198 (quoting Worldwide Chucrh of God v . Phila. Church of God , Inc., 227 F.3d 1110 , 1117 ( 9th Cir . 2000 )).
105 Id. at 1200.
106 Id. at 1201-02.
107 Musical Borrowing & Reworking, IND . UNIV. JACOBS SCH . MUSIC CTR. FOR HIST . MUSIC THEORY & LITERATURE , http://chmtl.indiana.edu/borrowing/ [https://perma.cc/XW7K-7H6P].
108 See J. Michael Keyes , Musical Musings: The Case of Rethinking Music Copyright Protection , 10 MICH. TELECOMM. & TECH. L. REV . 407 , 426 - 30 ( 2004 ).
109 Olufunmilayo B. Arewa , From J.C. Bach to Hip Hop: Musical Borrowing, Copyright and Cultural Context, 84 N.C. L. REV. 547 , 615 - 18 ( 2006 ); Keyes, supra note 108, at 426-30.
110 See J. Peter Burkholder , The Uses of Existing Music: Musical Borrowing as a Fie , ld50 NOTES 851 , 851 ( 1994 ); E. DeMatt Henderson, The Law of Copyright Especially Musical , 1 COPYRIGHT L. SYMP . 125 , 150 ( 1938 ); Keyes, supra note 108, at 427; see also ALFRED M. SHAFTER , MUSICAL COPYRIGHT 187 ( 1932 ).
111 See Musical Borrowing & Reworking, supra note 107; supra note 110.
112 See generally Olufunmilayo B. Arewa , Blues Lives: Promise and Perils of Musical Copyright, 27 CARDOZO ARTS & ENT. L .J. 573 ( 2010 ); Olufunmilayo B . Arewa ,Copyright on Catfish Row: Musical Borrowing, Porgy and Bess, and Unfair Us,e 37 RUTGERS L.J. 277 , 351 ( 2006 ); Arewa, supra note 109; Olufunmilayo B. Arewa , The Freedom to Copy: Copyright, Creation, and Context, 41 U.C. DAVIS L. REV. 477 ( 2007 ).
113 See Arewa , supra note 109 , at 612-19; Keyes, supra note 108, at 427-30.
114 SHAFTER, supra note 110, at 148-49.
115 This graphic is also available at http://www.bc.edu/content/dam/bc1/schools/law/pdf/lawreview-content/BCLR/59-6/lee-graphics.pdf [https://perma.cc/D876-7ZVU].
208 See Music Survey Data , supra note 157.
209 Woods v. Carter, No. 15 C 9877 , 2016 WL 640526, at *1 ( N.D. Ill . Feb. 18 , 2016 ).
211 Id. at *3 (characterizing the similarities as minor and cosmetic and finding that Woods has failed to state a claim of copyright infringement).
212 See, e.g., Hobbs v . John, 722 F.3d 1089 , 1091 ( 7th Cir . 2013 ) P; eters v . West , 692 F.3d 629 , 631 ( 7th Cir . 2012 ). These two cases are discussed further belowS . ee infra notes 270-292 and accompanying text.
213 See Music Survey Data , supra note 157.
214 See Phili , supra note 6.
215 Austin Siegemund-Broka , 'Blurred Lines' Trial: Pharrell Says His Song Channels “That Late '70s Feeling,” HOLLYWOOD REP. (Mar. 4 , 2015 ), http://www.hollywoodreporter.com/thr-esq/ blurred-lines-trial- pharrell- says- 779355 [https://perma.cc/2UFE-AEG8] ; see supra notes 6-9, 121 and accompanying text .
216 See supra notes 194-196 and accompanying text.
250 See Campbell, 510 U.S. at 579.
251 Justin Hughes , Fair Use Across Time , 50 UCLA L. REV. 775 , 799 ( 2003 ); Joseph P. Liu, Copyright and Time: A Proposal , 101 MICH. L. REV. 409 , 412 ( 2002 ).
252 See supra notes 220-251 and accompanying text.
263 See Cariou v. Prince , 714 F.3d 694 , 706 ( 2d Cir . 2013 ).
264 See supra notes 91-98 and accompanying text.
265 See Abigail Rubenstein ,Museums, Google Back Richard Prince Fair Use Appea,l LAW360 (Nov. 3 , 2011 ), https://www.law36 0.com/articles/283044/museums-google -back-richard-prince-fairuse-appeal [https://perma .cc/7N9B-X576].
266 See supra notes 108-128 , 217 and accompanying text.
267 See supra notes 121-128 , 217 and accompanying text.
268 See Cariou , 714 F.3d at 710.
269 See Ty , Inc. v. Publ'ns Int'l Ltd., 292 F.3d 512 , 516 ( 7th Cir . 2002 ) (quoting Narell v . Freeman , 872 F.2d 907 , 910 ( 9th Cir . 1989 ) (stating that fair use “'may be resolved on summary judgment if a reasonable trier of fact could reach only one conclusion'-but not otherwise ”)).
293 See Edward Lee , Warming Up to User-Generated Conten ,t 2008 U. ILL. L. REV . 1459 , 1544 - 45 (discussing “warming,” a phenomenon in which users take from copyrighted works while operating under the assumption that such use is warranted given the widespread practice by others ).
294 See Alex Mayyasi , The Economics of Girl Talk , PRICEONOMICS (Apr. 11 , 2013 ), https:// priceonomics.com/post/47719281228/the-economics -of-girl-talk [https://perma .cc/ATS8-42U3].
295 See Mike Masnick , Why Hasn't the Recording Industry Sued Girl Talk? , TECHDIRT (July 8 , 2009 ), https://www.techdirt.com/articles/20090707/0237205466.shtml [https://perma.cc/6B2ASBT8].
296 See generally Brief of Amici Curiae 212 Songwriters , Composers, Musicians, and Producers in Support of Appellants, Williams v . Gaye , 885 F.3d 1150 ( 9th Cir . 2018 ) (No. 16 - 56880 , 16 - 55089 , 16 - 55626 ), 2016 WL 4592129.
297 Id. at 2.