Cultural Diversity and Inclusion in the Arts in New York State’s Southern Tier
I know I promised the next post was going to be about the New York Post Obama cartoon controversy. That was really my intention. But now I’m just going to say that it’ll be my next long post. In the meantime, I got to thinking that maybe because I sided with the AP in its dispute with Fairey in the previous post, it might appear that I am against fair use in general. I’m not, but maybe my opinion of what’s fair is a bit more defensive of the rights of copyright owners (who themselves are often not artists or creators).
A few months ago I came across a video that I thought was a downright inspirational example of fair use: DJ Earworm’s United State of Pop 2008, the music video for which is embedded below. DJ Earworm is a mashup artist who decided to combine elements of each of top 25 hit songs for 2008, according to Billboard’s pop charts.
(It looks a lot better if you go to YouTube directly and click the “watch in high quality” link.)
I can’t say I am a fan of most pop music: I think that in may cases, I endure it rather than listen to it. But since these songs got so much airplay, I couldn’t help but recognize most of them. Only some of the obnoxiously pitch-shifted stuff strikes me as an unfortunate artistic choice (but pitch-shifted vocals are popular these days anyway, so maybe that’s just a preference many people my age and older have); the rest of it flows together amazingly well, and the juxtaposition of so many artists’ work creates a whole bunch of new meanings for some of the lyrics. I really dig this mashup. Since I don’t watch a lot of music videos, it was the first time I had seen any of the video before.
So, just for grins, let’s suppose I was a judge arbitrating a hypothetical dispute between record companies and DJ Earworm, using the same Fair Use questioning from the previous post, based on 17 USC 107:
1) The purpose and character of use, including whether it’s commercial or for nonprofit educational purposes: The remix is not for a commercial purpose; it’s also not for a nonprofit educational purpose. Its purpose is to artistically juxtapose the 25 pop songs based on the rather arbitrary criterion that Billboard said they were the most popular in 2008. Such a juxtaposition would not be possible without using the original recordings. One point for DJ Earworm.
2) The nature of the copyrighted work: The 25 songs were extremely popular in 2008, and have a very strong recognition among people that listen to music. It is possible to listen to most of the songs for free, but only because radio, television and cable stations have secured permission to broadcast the songs. For an ordinary person to possess the song or a portion of it, they must ordinarily pay for their copy. By picking up this DJ Earworm track, people end up getting pieces of 25 songs for free. One point for the record companies.
3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole: DJ Earworm didn’t use the entirety of any song; he didn’t even use half of any song. His use of most of the songs was minimal, because he had to cram 25 of them into one track. About the only song that could be heard for most of the piece was Coldplay’s “Viva la Vida,” and that was just the same four bars over and over. One more point for DJ Earworm.
4) The effect of the use upon the potential market for or value of the copyrighted work: Suppose you’re a pop music fan, and you download this track for free. You’ll probably hear a piece of a track you don’t already have, and maybe you’ll want to get that track. Conveniently, DJ Earworm provides a complete source list, with the names of the songs and the artists’ names. It’s a lot more plausible that people’s desire to own the music they don’t already will increase, rather than decrease, because of this track. Also, as time goes on, each of these songs are less likely to be broadcast as frequently, resulting in less exposure. This track promotes those songs whenever it’s played. I think it increases the potential market for the original songs. It also does nothing to change the value of the originals. One more point for DJ Earworm.
Jason says: DJ Earworm would win if this were decided in my courtroom. What scares me, though, is the idea that any of the record companies could try to sue DJ Earworm for infringement, and he’d need to work with a lawyer to defend himself. Since he’s not making money from his mashups, that could end up being pretty expensive. His own website says at the bottom that he honors requests from copyright holders to remove works if they complain about infringement. I just hope nobody complains.
DJ Earworm seems like a person that’s more committed to his art than he is to promoting himself with words. He uses fewer than 60 of them on his “about” page.