Lady Gaga (or at least her manager) hates fair use, the First Amendment, America, etc.

Posted by Charles Colman

The attorney behind LAW OF FASHION is going to try to post more often, which means (for his clients' sake) that not every post can be an in-depth review of some aspect of IP law.

With that disclaimer out of the way, LOF wishes to draw your attention to the latest episode in the gradual erosion of fair use rights.  The white knights of the Stanford Fair Use Project explain the basic contours of fair use here, but for the the link-averse, "fair use" is a legal doctrine that allows one to use another's copyrighted material without permission (and thus, without providing compensation) under certain circumstances.  LOF can go on (and occasionally has gone on) about fair use for hours, but the doctrine, at its most basic level, reflects the recognition that certain uses of copyrighted material -- like criticism or parody of another's copyrighted work, fleeting uses for which no market exists, or some transformative uses that incorporate the original work into something new -- should not require a user to seek the permission of the copyright owner.  (Indeed, the U.S. Supreme Court has gone so far as to recognize that fair use is a critical "safeguard" that -- at least theoretically -- helps to ensure that copyright law and the First Amendment are not in conflict.  The copyright/First Amendment interface is an important and active area of the law.)

Thus, LOF, as a strong fair use advocate, was alarmed by Above The Law's recap of a brouhaha that flared up this week after fashion icon Lady Gaga, or as all (perhaps at the urging of frantic PR teams) now appear to agree, Gaga's manager, refused to grant Weird Al permission to parody Gaga's "Born This Way."  (In reality, the licensing decision -- assuming this weren't a clear case of fair use -- wouldn't be up to the manager or even, necessarily, Gaga herself, but rather the owner of the copyright to the composition, which is often a publishing company.)

Why is this such clear case of fair use?  According to Above The Law, Weird Al's cover "mocks the Gaga marketing machine with such gems as 'got my straight jacket today / it's made of gold lamé / no I'm not crazy, I perform this way."  Of the concentric circles that emanate from the core of fair use, parody is really, really close to the doctrine's heart.  This makes sense; after all, how many copyright owners would freely give their blessing to others to use their work in order to criticize it?

Fair use determinations aren't always easy to make, in part because the U.S. Supreme Court has only ruled on the doctrine a handful of times.  But as any law student halfway through Copyright can tell you, less than two decades ago, the Supreme Court happened to rule in favor of an alleged fair user in a case with rather similar facts to those in the Gaga debacle. In Campbell v. Acuff-Rose Music, the Court stated, among other things, that a parody's commercial nature did not preclude a finding of fair use.  (Reportedly, Weird Al is concerned about precisely this issue -- hence his practice of clearing the "rights" to all songs that he parodies, always successfully until now... with one hiccup.)  The Acuff-Rose Court continued its analysis, finding that 2 Live Crew's version of the Roy Orbison song, "Oh Pretty Woman," was at least arguably a parody of the original:

"[W]e think it fair to say that 2 Live Crew's song reasonably could be perceived as commenting on the original or criticizing it, to some degree. 2 Live Crew juxtaposes the romantic musings of a man whose fantasy comes true with degrading taunts, a bawdy demand for sex, and a sigh of relief from paternal responsibility. The later words can be taken as a comment on the naivete of the original of an earlier day, as a rejection of its sentiment that ignores the ugliness of street life and the debasement that it signifies."

Some have argued that the Court was "reaching" a bit here, but we needn't do any physical activity at all to conclude that the lyrics of the Weird Al song (at least, as recounted by ATL -- LOF is not a fan and would prefer to avoid listening to, as ATL calls him, "The Great Poodle-haired One") criticize the artist who created the original copyright work, if not the work itself.

Further, LOF submits that the industry custom of clearing "rights" to works in clear-cut fair use scenarios is damaging the fair use doctrine, not only because people are paying for "rights" that may be guaranteed to them under the First Amendment, but also because these payments create a market for such uses.  (The existence of a market -- usually, a licensing market -- is one of the factors in the four-factor statutory fair use test.)

Incidentally, Weird Al, who after receiving the bad news, proceeded to drop the track from his album only to promptly post it on YouTube, appears to suffer from a common misconception: that by not using a copyrighted work commercially, one is insulated from an infringement lawsuit.  But as countless "peer 2 peer file sharers" can tell you... WRONG.  (In any event, query whether a YouTube video is actually non-commercial, if it serves to generate publicity for a commercial artist and/or his upcoming commercial project, like, say, an album release.)

But to get (back) to the point, LOF encourages fair users to wo/man up and refuse to pay for "rights" that already belong to them.  Sure, the risk/reward calculus may sometimes seem to justify clearing "rights" to avoid even the remote prospect of expensive litigation.  (And, unfortunately, excessive rights clearance is sometimes required in order to get one's work distributed through certain channels.)  But remember that the risk in the risk/reward formula is not just about you: it's about the future of fair use, and by extension, the health of the First Amendment.  (One or two words of caution, though: not every country has an equivalent of our fair use doctrine, so where a work will be distributed internationally, the picture gets much more complicated.  Also, please don't make fair use calls yourself -- consult an attorney who practices copyright lawDo, at the very least, be aware that you may already have rights that others are demanding you pay for.)

[This post is for entertainment and informational purposes only, and does not constitute legal advice or create an attorney-client relationship among any individuals or entities.  Needless to say, this writer does not know Lady Gaga, or her manager's, true feelings about fair use, the First Amendment, or America.  Let's hope LOF's attempts at humor are protected by the Constitution, too.]