Fair Use Avoidance in Music Cases

Boston College Law Review, Jul 2018

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. Moreover, very few music cases have even considered fair use. This Article attempts 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 after 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 pressing.

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Fair Use Avoidance in Music Cases

Fair Use Avoidance in Music Cases Edward Lee 0 Chicago-Kent College of Law 0 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 Article 2 Commons A. Study Design ....................................................................................................................1897   A. Advantages................................................................................................................. ......1922   B. Disadvantages.............................................................................................................. ....1927 EDWARD LEE* 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 pressing. INTRODUCTION 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). 2018] 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 analysis. 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, paint[Vol. 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 the work.15 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 Williams Complaint]. 9 August Brown, Robin Thicke on ‘Blurred Lines’: ‘I Was High on Vicodin and Alcohol,L’.A. TIMES (Sept. 15, 2014), http://wwwti.mlaes.com/entertainment/music/posts/la-et-ms-robin-thickeblurred-lines-deposition-high-vicodin-alcohol-20140915-story.html [https://perma.cc/LY8A-FCXG]. 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. [Vol. 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 weigh 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) but ( 2 ) 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 work. 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 from Cariou’s.”61 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. 74 Id. 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. 2018] 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 ( 2 ) 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 Car2018] 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). 102 Id. 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 2018] 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 2018] 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 deblack-eyed-peas-settle-song-suit-2012may18-story.html [https://perma.cc/F6YX-W3VR] (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), http://www.huffingtonpost.co.uk/entry/ed-sheeranlawsuit-photograph-matt-cardle-amazing_uk_58edd961e4b0c89f91229aeb [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 374. 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 and ( 2 ) 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 own music. 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, ( 2 ) wrote, performed, or was credited on a song listed on the Billboard chart, ( 3 ) wrote, performed, or was credited on a gold or platinum record, or ( 4 ) 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/ Wikipedia:Autobiography#Creating_an_article_about_yourself [https://perma.cc/SG9H-U2JR]. 2018] 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 2018] 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/ ascap_bmi_cmpa_nsai_nmpa_riaa_sesac_post-meeting_comments.pdf 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. doc.gov/files/ntia/national_music_publishers_association_et._al._comments.pdf [https://perma.cc/ 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), http://www.newsweek.com/meet-beyonces-protegeeswhat-we-know-about-her-first-record-label-signings-444522 [https://perma.cc/U3YD-PJM7]. 220 See supra notes 17–18 and accompanying text. 2018] 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 work.”). 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 work). Benjamin Kaplan’s 1967 account of music copyrights espouses this view:228 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 audience,” ( 2 ) “the proclivities of music critics,” and ( 3 ) “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). 229 Id. 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. 233 Id. 234 ALFRED M. SHAFTER, MUSICAL COPYRIGHT 184 (1932). 2018] 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.241 235 Id. 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:// perma.cc/N2XR-KPV4]. 247 See Marvin Gaye Lyrics, “Got To Give It Up,” supra note 246. 248 See Robin Thicke Lyrics, “Blurred Lines,” supra note 246. 249 Id. 2018] 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 other songwriters.254 A. Advantages 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. 2018] 2. Courts Avoid the Difficult Question About Transformative Works Versus Derivative Works 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 issue— 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 (1995). 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 2018] 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). 271 Id. 272 Id. 273 Id. 274 Id. 275 Id. 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)). 278 Id. 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. 2018] “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 explained: It is easy to see why a fair use defense typically cannot be analyzed upon a Rule 12(b)( 6 ) 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. B. Disadvantages 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 inspira2018] 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 298 Id. 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 Williams Complaint]. 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 360.com/articles/880127/2016-the-year-the-music-sued [https://perma.cc/HRA6-BMHT]. 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. 310 Id. 311 Id. 2018] 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. CONCLUSION 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/ 2017/12/30/bruno-mars-and-mark-ronsons-uptown-funk-faces-yet-another-copyright-infringementsuit/#35e1e18c70c0 [https://perma.cc/2ECE-UT5Q]. 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). 41 Id. 42 Id. 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 ). 210 Id. 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.


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Edward Lee. Fair Use Avoidance in Music Cases, Boston College Law Review, 2018,