Fair(ish) Use

Have you ever heard a song and thought, “Man, that sounds so familiar!” After racking your brain (or a google search), the songs sound almost (if not completely) alike?

This happens a lot in music. Artists these days are no strangers to using samples. Samples are the reuse of a section of a sound recording in another sound recording. Which sounds like stealing another person’s work / art, but it is not if you go the legal route. In order to sample, you need to obtain written permission from the owner of the song / recording.

Sampling is a beast of it’s own, but in some circumstances can be considered fair use. Most of the time you need permission to use a sample, but if it falls in a few of the fair use categories, then it is fair game.

You can use sampling as fair use, if you use a small amount in a song and it doesn’t hit a mass audience.

This checklist says, “no significant effect on the market or potential market for copyrighted work”.

If a small, indie band uses a small sample that they completely transform in a song, and they put it on a cd to sell at shows. It probably won’t reach a mass audience, and only a handful of people will buy cds.

Reading through fair use and music articles, in some cases you can use samples if you use a small chunk for educational purposes.

I don’t have an account with this company, so I can’t listen to a lot of examples, but I would imagine that the K-12 educational music website, Flocublary, would work under this premise. If they were to sample music, used a small chunk, it would be fair use given the transformative nature and educational purpose.

Check out Flocabulary here

I don’t know of many samples / songs transformed for education purposes. I would go on a limb, and say the most well-known fair use in music is a.. parody.

A parody is a work that ridicules another, usually well-known, work by imitating it in a comic way.

Which would check the last box on this fair use checklist:

It isn’t very easy to be a parody artist though! They have to make sure that their parody song does not act as a replacement from the original, or take away any profits from the original. In laymen terms, it can’t sound so similar that you would mistake for the actual song.

A comedian could parody a popular song, and use it in their stand-up. This would be considered fair use!

The most well known parody artist has to be Weird Al Yankovic.

“Weird Al Yankovic is one of the most successful artists who have utilized the aspects outlined under The Fair Use Doctrine. He earns a living by modifying hit songs for the purposes of humor by adding lyrics that are often unrelated to the original.” Source

Though he technically could use the songs without permission, given his fame, he does ask the original artist for their blessing.

“Although Weird Al’s re-recordings are near melodic copies of the original recordings, they do not violate the copyright owner’s rights. Since “Weird Al’s” songs meet the required aspects to define a parody, he is not required by law to get permission. He also does not need to pay the creator of the original song.” Source

Yankovic made a parody of Michael Jackson’s ‘Beat It’ called ‘Eat It’.

Here is a comparison of the original music video with Yankovic’s comedic parody video:

Rule 1: Are You Creating Something New or Just Copying?

With our example above, we can see that Weird Al created something new. The song had a totally different meaning, and had subtle differences to the original. Though it seems like copying, he did not copy verbatim, so he is within the fair use bounds.

Rule 2: Are Your Competing With the Source You’re Copying From?

As mentioned above, the parody can’t be a replacement for the song. It can’t take away from the original artist. “Eat It” is not a replacement for “Beat It”, they are different in lyrics, the voice, etc. The audience for Michael Jackson and Weird Al are different, though they may overlap. This parody would not take away from Michael Jackson.

Rule 3: Giving the Author Credit Does Not Always Let You Off the Hook

Weird Al not only gave Michael Jackson credit, but they signed a document together stating that co-wrote ‘Eat It’ together.

Weird Al talked about that encounter and how Paul McCartney turned down a parody in this video.

Rule 4: The More You Take, the Less Fair Your Use Is Likely to Be

I imagine that if Weird Al took some of the lyrics as well as the melody, then he would be in more fair use controversy.

Source for the Rules.

One of the Four Factors is “the effect of the use upon the potential market.”

Weird Al’s songs do not do better or sell more than the original artist.

Sticking with the Eat It / Beat It

Michael Jackson’s Thriller album (the album Beat It was on) is one of the best selling albums of all time.

It did great on the charts:

Weird Al in 3D (the album with Eat It) did not sell as many copies, and did not chart as well as Michael Jackson’s album.

Leave in the comments some songs you like that are actually samples, parodies, or covers!

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