Is Fair Use Regaining Its Mojo?

Many musicians cower at actually using the “fair use doctrine” of copyright law because they know that Big Media has the legal firepower to impose its own definition of the law. Rather than get tagged as a “pirate” and endure huge legal expenses fighting to vindicate their rights, most musicians are inclined to play it safe and keep a low profile when borrowing from a previous artist.

So it is refreshing to encounter an artist who is courageously and opening using fair use to build an unusual career. D.J. Girl Talk (aka Gregg Gillis, who only recently quite his day job as a biomedical engineer) has become a hot performer by sampling dozens of music snippets and blending them into his distinctive sound collages. He doesn’t ask permission; he doesn’t make any payments. Girl Talk just takes whatever samples he finds interesting — more than 300 on his latest album, “Feed the Animals” — and claims protection under the fair use doctrine.

At one time, bands like the Beastie Boys and Public Enemy freely sampled other artists and became sensations. In fact, sampling was a key element enabling hip-hop to be invented in the first place. But then the record labels and attorneys got into the act, each trying to claim broad protections for “its” musical property.

The big blow came in 2004 when George Clinton’s group, Funkadelic, won a lawsuit against the rap group N.W.A. for using a nearly inaudible sample of a three-note, two-second clip from “Get Off Your Ass and Jam” — the notorious Bridgeport v. Dimension Films case. Now — fair use be damned — it is generally illegal to sample any identifiable sound snippet without first obtaining permission and making a payment to the artist’s record label and/or publisher.

This sweeping legal standard has had a profoundly negative effect on creativity, say culture scholars like Siva Vaidhyanathan, Donna Demers and Kembrew McLeod. Excessive copyright protection has made hip-hop and other musical genres less innovative and robust. The sample-heavy recordings that made the Beastie Boys and Public Enemy so popular are all but impossible today.

Which is why Girl Talk deserves kudos for defiantly claiming fair use as his artistic right. Far from just “ripping off” the sounds, Girl Talk spends months working out ideas during his live performances, and an estimated day of work for every minute of his sound collages. His sampling and sound collages may use other people’s works, but the new songs are truly “creative transformations” within the scope of fair use jurisprudence.

Just because a sound is identifiable as someone else’s does not mean that there is no new creativity going on. In any case, how can future musicians create if they are constantly fearful of stepping on someone else’s guitar riff or melody? Not so long ago, Beatle George Harrison actually lost a lawsuit because his song “My Sweet Lord” was judged to be a ripoff of “He’s So Fine.” The spectacle of some culturally clueless judge making these determinations is at once scary and hilarious. In a recent profile of Girl Talk, The New York Times gave this evaluation of his music: “At times [Girl Talk’s] album sounds like a cleverly programmed K-tel compilation that presents catchy riffs instead of full songs, and part of the fun is recognizing familiar sounds in a new context.”

Could Girl Talk’s brave invocation of fair use signal a turn of the tide for that beleaguered legal doctrine? Perhaps. Not only is fair use being thrown back at copyright industries with increasing frequency and success — evidenced by cases brought by fair use legal clinics at Stanford Law School and American University — Girl Talk actually has the public support of his Pennsylvania congressman, Mike Doyle. Also amazing is the fact that Girl Talk has not yet been sued. Apparently the record labels are fearful of the bad publicity that any litigation would bring as well as a potentially adverse judgment that could set a lasting precedent.

It’s been a long time coming — years of civil disobedience by artists; a number of lawsuits upholding fair use; the publication of new “best practices” norms for fair use in certain creative sectors; the growing use of Creative Commons licenses as a workaround — but if only as a cultural matter, I think fair use may be regaining its mojo.