Copyright Law: Fair Use vs. The Exploitation of Emerging Artists

Are new and upcoming artists protected from established artists copyrighting their music without credit, therefore devaluing their derivative works and hindering their career trajectory?

Copyright protection, derived from Article 1, Section 8, Clause 8 of the United States Constitution, encourages artists to create new works, profit off of these works, and retain exclusive rights, such as the right to control how their work is used or reproduced. [1] Tension arises when an artist wants to create a new work inspired by a produced piece. The courts have heard several cases on this issue, such as Campbell V. Acuff-Rose Music (1994), which determined how the four parameters in the Copyright Act of 1976 can be used to evaluate Fair Use, or if the reuse of original material is legal. [2] However, this is left to the judges' subjectivity as courts rule on a case-by-case basis. Copyright infringement therefore is ruled in some cases, but slips through the cracks in others. Often, exploitation occurs when prominent artists claim that they have fairly transformed an original piece, using legal resources to combat allegations of theft from upcoming artists.

This article contends that the exclusive rights granted in the Copyright Clause are undermined by contradictory rulings, such as VMG Salsoul, LLC v. Ciccone (2016), creating an avenue of exploitation for upcoming artists in the music industry as their derivative works are devalued and they lack legal resources to combat this disparity.

In Campbell v. Acuff-Rose Music, the Sixth Circuit Court of Appeals applied the four standards of Fair Use listed in the Copyright Act of 1976. Petitioner Acuff-Rose Music, Inc. filed suit against music group 2 Live Crew, claiming the respondent’s song “Pretty Woman” infringes upon their artist’s song “Oh, Pretty Woman.” [3] The Court ultimately ruled in favor of the petitioner after reviewing the Copyright Act.

The first criterion consulted to determine if the respondent’s work was fair was Standard 1) The purpose of use, including commercial or nonprofit educational purposes. The court consulted Sony Corp. of America v. Universal City Studios, Inc., deciding that every use of copyrighted material for commercial purposes is unfair. The court heavily weighed this factor but proceeded to review the other standards to be holistic. Standard 2) The nature of the copyrighted work, where the court did not incite a violation, saying every parody will copy a publicly known work. Standard 3) The amount and portion of material used from the copyrighted work, in relation to how much of the material was used in the original work as a whole. The Court determined that the respondent excessively copied the “heart” of the original work, defined as the features that are key to identifying the song, such as a rhythm or beat. By nature, a parody must copy the “heart” to provoke a connection with the original piece. [4] The court clarified that in this case, the copying was excessive. The respondent used a large portion of the “heart,” the opening lyrics, and the opening bass, comparing the ratio of how much the “heart” was used in comparison to the entire original work. Therefore, calling the parody a transformative work was deemed problematic. Standard 4) The effect the use has on the copyrighted work’s market value. Again referencing Sony v. Universal City Studios, the court found that the respondent’s parody was duplicated into a separate market for a different purpose, therefore not reducing the capacity of revenue the original work could generate. Altogether, the circuit court decided in favor of the petitioner due to the commercial nature of the parody and excessive copying.

The inconsistency in judicial interpretation wass highlighted when the respondent, Campbell, appealed to the Supreme Court, which reconsidered the appellate court's ruling. The Court reversed the circuit court’s decision based on the first and third criterion. Regarding the former, the Court held that the commercial nature does not preclude Fair Use. Regarding the latter, it was found that significant copying still constituted a transformative work because the “heart” was being used for a new purpose – to comment on and critique the previous work. [5] So, while it appeared that the Circuit Court re-interpreted the Copyright Act in a manner that would protect artists’ intellectual property from copyright infringement, at its root, the case established the subjective nature of copyright law. Specifically, judges must evaluate how integral the "heart" was to the original work, determine how much of the "heart" was necessary to provoke a connection to the original, and assess how attention-grabbing the "heart" was in the parody. However, the concept of the "heart" is inherently artistic and lacks universal standards for measurement. These evaluations relied on individual perceptions of artistic importance and audience impact. This subjectivity led to disagreements about whether 2 Live Crew's parody constitutes infringement and reflects a broader issue of inconsistent rulings across courts, complicating the enforcement of copyright protections.

The judicial system’s intent to reduce copyright infringement and inability to avoid subjectivity extends beyond the application of fair use standards. It is demonstrated in cases such as Bridgeport Music, Inc. v. Dimension Films (2005), where the petitioner appealed to the Sixth Circuit Court to discuss illegal sampling. Before this case, the de-minimis doctrine was used for minor sampling cases. The de-minimis doctrine stated that any musical sampling that was too insubstantial, or does not cause harm or affect the original work’s value or market, to consider could not concur with legal consequences. However, no objective standards were in place to define the line between an insubstantial and substantial sample, leading to subjectivity. Instead, a substantial similarity test was used to determine if a reasonable person would detect that the new work was derived from the copyrighted work. [6] However, the petitioner sought to create a new precedent – any sampling without prior approval, insubstantial or not, is copyright infringement.

 The petitioner brought forth Bridgeport Music, Inc. v. Dimension Films because they owned copyrights to a song called “Get off Your Ass and Jam.” Another company acquired licensing to sample “Get off your Ass” in their artist’s song “100 Miles and Running.” To obtain licensing means to obtain legal permission to use a musical composition or sound under agreed-upon terms that do not violate the copyright owner’s exclusive rights. [7] The infringement occurred when the respondent, Dimension Films, used a portion of the song “100 Miles” in the soundtrack of their movie “I Got the Hook-Up.” Since “I Got the Hook-Up” inevitably contained a sample of “Get off Your Ass and Jam,” that was only licensed for use in the song “100 Miles,” Dimension Films’ use instituted copyright infringement.  On a larger scale, the court held that copying is the only condition necessary to prove infringement since every sample takes something from the original work. [8]

This ruling highlights two ideas: one must have explicit clearance to sample a song, and if a copyright owner wants to prove infringement, theft is the only criterion necessary to detect. Therefore, it is irrelevant whether a reasonable person can decipher if the original work was used in the alleged infringement, making the de-minimis doctrine also irrelevant. This ruling seemingly protects copyright holders by enforcing a zero-tolerance rule for sampling, but it raises concerns about fairness and flexibility. Therefore, the court must set an objective standard that protects emerging artists from being taken advantage of due to their lack of legal resources, understanding how unauthorized sampling affects derivative works.

VMG Salsoul v. Ciccone (2016) reintroduced the de minimis doctrine, again demonstrating how courts rule inconsistently. This case was brought before the Ninth Circuit court when petitioner VMG sued Ciccone, the respondent, more popularly known as Madonna. The petitioner claimed that Madonna’s song “Vogue’ illegally sampled horns embedded in their track “Ooh I Love It.” [9] Based on the Sixth Court’s decision, this should have been an infringement because the petitioner did not provide licensing.

However, the Ninth Court did not rule this way for two reasons. Firstly, for horn to qualify as copyright, it must be an original product. Original products require a minimal level of creativity and independent creation. The petitioner could not claim complete copyright because the horn was deemed as basic, further diluted considering their producer, Shep Pettibone, worked on both the petitioner and respondents' production team. This blurred the line between who owns the created horn sound. Secondly, even if the horn was original, its sampling was not substantial because it only appears twice in “Vogue,” lasting for 0.23 seconds with some modifications to the notes. Further, an average audience could not detect that Madonna’s song was derived from the petitioner’s track, “Ooh I Love It.” [10] A direct contradiction appears.

Bridgeport Music, Inc. v. Dimension Films stated that any unauthorized sampling constitutes infringement. Still, VMG Salsoul v. Ciccone considered the substantiality of unauthorized sampling before deciding if it constitutes infringement. The court’s decision that the horn was not a meaningful element of the original composition nor in Madonna’s piece is subjective. While the average person may not discern the difference between the two tracks, the notes of the horn, when added to the rendition of other instruments, could add tenfold value to a track that engages a listener. Therefore, the court violated the artist’s exclusive right to determine how their work is reproduced when it subjectively valued an element of the song, a horn, as minor and ruled in favor of Ciccone. Moreover, it reinforced a power dynamic that exploits emerging artists: Madonna is an internationally acclaimed pop star who has got away with unfairly sampling a smaller artist’s song.

This unfavorable power dynamic discourages emerging artists from pursuing legal discourse when their works are used without authorization because it increases doubt that the verdict will be in their favor, especially if their lawyers are not of the stature of Madonna’s legal team. A rising artist may not see the complete cost-benefit analysis at stake. If they lose to an artist like Madonna, they could pay tens of thousands in fees. Still, if they win, they could save derivative losses from future works if a more prominent artist uses their sampled materials without proper licensing. Even so, lawyer fees will likely outweigh the profit curated from the work. [11] Emerging artists must look beyond the immediate profits generated from their original work and consider the potential value of derivative works. Additionally, many emerging artists lack a clear understanding of derivative works and often do not seek legal assistance as a result. This lack of knowledge leaves them vulnerable to exploitation, particularly under the subjective nature of Fair Use, which introduces unpredictability and creates a legal grey area. Therefore, although the Copyright Clause aims to protect artists' rights, judicial inconsistency in interpreting Fair Use undermines this goal.

Integral to the exploitation of lesser-known artists is that larger musicians illegally sample and often devalue derivative works (any recreation, translation, or new media created from an original work). Copyrights have become monopolized, allowing larger artists to thrive financially on the backs of lesser-known artists. Additionally, digital sampling infringes an owner’s exclusive right to produce derivative works. Whole original artists may be entitled to remuneration, they will lose their rights to allow sampling and choose pricing. [12] Two exploitative factors occur. Firstly, more prominent artists may sample a song and devalue the original composition’s value since the first time hearing certain elements was not the original work, also known as familiarity bias. Secondly, beyond the larger artists and labels gaining creative credit, they also gain financially, setting prices that disproportionately benefit them. Emerging artists do not have the legal resources to negotiate fair remuneration and terms that profit, even if the music is appropriately licensed. This is further exemplified by unfair dynamics set in cases like VMG Salsoul v. Ciccone, where the courts are too subjective to be fair. Less-known artists miss out on the opportunity for their success to compound.

Court rulings, such as Campbell v. Acuff-Rose Music, Bridgeport Music, Inc. v. Nealy, and VMG Salsoul, LLC v. Ciccone, show how inconsistent rulings undermine the exclusive rights granted to creators by the Copyright Clause. Particularly in VMG Salsoul, LLC v. Ciccone, the court reintroduced the de minimis doctrine and ruled that unauthorized sampling is legal. [13] This directly contradicted precedent established in Bridgeport Music, Inc. v. Dimension Films, which declared that any sampling without permission is an infringement. [14]  This causes emerging artists to struggle to receive fair remuneration and control over how their work is used in industry negotiations. But, the courts can and should be a proper source of reconciliation, regardless of an artist’s status or resources with acknowledgment of the law’s nuances, recognition that judges decide cases on their merits, and reinforcement of accountability for consistent application of the law across courts. Additionally, smaller artists with the means to pursue legal action should bring their cases to their state court. For example, the Supreme Court recently decided Warner Chappell Music, Inc. v. Nealy ruling that lesser-known artists can recover damages beyond the previous statute of limitations: three years. [15] This proves change can happen with means, and appeals to the Supreme Court level could establish a superior precedent that prevents unjust exploitation rampant in the music industry.

Edited by Ashley Zhou

[1] Library of Congress, "Article I, Section 8, Clause 8: Intellectual Property Clause," Constitution Annotated, accessed December 5, 2024, https://constitution.congress.gov/browse/essay/artI-S8-C8-1/ALDE_00013060/.

[2] Legal Information Institute, "17 U.S. Code § 107 - Limitations on Exclusive Rights: Fair Use," Cornell Law School, accessed December 5, 2024, https://www.law.cornell.edu/uscode/text/17/107.

[3] Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994), Justia, accessed December 5, 2024, https://supreme.justia.com/cases/federal/us/510/569/.

[4] Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994), Justia, accessed December 5, 2024, https://supreme.justia.com/cases/federal/us/510/569/.

[5] Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994), Justia, accessed December 5, 2024, https://supreme.justia.com/cases/federal/us/510/569/.

[6] Bridgeport Music, Inc. v. Dimension Films, 230 F. Supp. 2d 830 (S.D. Ind. 2002), accessed December 5, 2024.

[7] Bridgeport Music, Inc. v. Dimension Films, 230 F. Supp. 2d 830 (S.D. Ind. 2002), accessed December 5, 2024.

[8] Bridgeport Music, Inc. v. Dimension Films, 230 F. Supp. 2d 830 (S.D. Ind. 2002), accessed December 5, 2024.

[9] Salsoul v. Ciccone, No. 13-57104 (9th Cir. June 2, 2016), Justia, accessed December 5, 2024, https://law.justia.com/cases/federal/appellate-courts/ca9/13-57104/13-57104-2016-06-02.html.

[10] Salsoul v. Ciccone, No. 13-57104 (9th Cir. June 2, 2016), Justia, accessed December 5, 2024, https://law.justia.com/cases/federal/appellate-courts/ca9/13-57104/13-57104-2016-06-02.html.

[11] Stanford University Libraries, "Disagreements Over Fair Use: When Are You Likely to Get Sued?" Fair Use, Stanford University, accessed December 5, 2024, https://fairuse.stanford.edu/overview/fair-use/disagreements-over-fair-use-when-are-you-likely-to-get-sued/.

[12] University of Miami, "Derivative Works and Copyright Law," UMESLR, University of Miami School of Law, accessed December 5, 2024, https://repository.law.miami.edu/cgi/viewcontent.cgi?article=1009&context=umeslr.

[13] Salsoul v. Ciccone, No. 13-57104 (9th Cir. June 2, 2016), Justia, accessed December 5, 2024, https://law.justia.com/cases/federal/appellate-courts/ca9/13-57104/13-57104-2016-06-02.html.

[14] Bridgeport Music, Inc. v. Dimension Films, 230 F. Supp. 2d 830 (S.D. Ind. 2002), accessed December 5, 2024, https://law.justia.com/cases/federal/district-courts/FSupp2/230/830/2425964/.

[15] Warner Chappell Music, Inc. v. Nealy, 601 U.S. ___ (2024), Justia, accessed December 5, 2024, https://www.justia.com/cases/federal/supreme-court/601/___/.