802 Legal Corner: How Someone Can “Steal” Your Song…Legally

Gangsta Rap, Copyright Infringement and Fair Use

Volume CIII, No. 12December, 2003

Harvey S. Mars, Esq.
Local 802 Counsel
Leibowitz & Mars LLP

By virtue of the Copyright Act, creators of original artistic or literary works are granted a limited monopoly in the use of their works. Through this limited monopoly, the author has the sole right for a period to time to publish, copy and distribute their work. This statutory right was meant to provide an incentive to authors of original works to release to the public the products of their creative genius and by so doing promote the “progress of science and useful arts.” After a period of time has elapsed, however, the author’s period of exclusive control lapses and the work is released to the general public.

There is an interesting exception to the protection afforded under the Copyright Act. I recently encountered this exception while researching case law for a copyright infringement law suit I initiated. Any musician who composes original works of music ought to know about this exception.

The exception is found in Section 107 of the Copyright Act and is known as the “fair use doctrine.” Fair use permits the general public to use not only facts and ideas contained in a copyrighted work, but also the actual expression itself, under certain circumstances.

Section 107, in relevant part states: “The fair use of a copyrighted work, including such by reproduction in copies…for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”

Courts, especially the United States Supreme Court, have granted considerable latitude for use of copyrighted material when it involves “scholarship and comment.”

In 1994, the United States Supreme Court decided Campbell a/k/a Luke Skyywalker v. Acuff-Rose Music, Inc., 114 S. Ct. 1164 (1994). This is the landmark decision in which the high court paved the way for the legitimacy of “gangsta rap.”

In Campbell, the Court held that 2 Live Crew’s parody of the song “Pretty Woman” did not infringe upon the copyright of Roy Orbison’s rock classic “Oh, Pretty Woman” because parody is a form of criticism which is a permitted fair use under Section 107.

Justice David Hackett Souter, probably one of the court’s more conservative justices, held that parody “can provide social benefit, by shedding light on an earlier work, and in the process, create a new one.”

It was the transformative value of parody, as well as other less humorous forms of criticism, which Justice Souter believed warranted protection under Section 107.

Of course, to be entitled to fair use protection, the parodic nature of the work has to be obvious. In 2 Live Crew’s case, it was. The fact that the parody value of the song was severely limited – unfortunately, some might say – was not relevant to the determination whether it was a protected fair use.

Justice Souter concluded, “First Amendment protections do not apply only to those who speak clearly, whose jobs are funny, and whose parodies succeed.”

While there is no way one can legally ward off parodic use of copyrighted material, the fact is, such use is not common. That is, unless you have made your career as a gangsta rapper. However, in that case, ironically, your greatest ally just happens to be one of this country’s more conservative jurists…and there really is nothing gangsta about that.

Nothing in this article should be construed as formal legal advice given in the context of an attorney-client relationship.