I attended Public Knowledge's World's Fair Use Day last week - an entertaining and informative day-long exploration of the state of fair use and how technology is pushing people to invoke it for new purposes.
Fair use is a principle of copyright law that entitles the public to freely use copyrighted work for commentary or criticism without needing permission from the copyright owner - full definition with examples here and here. In order to determine whether a work is fair use, a judge weighs four factors: 1) the purpose and character of the work, i.e. is the use of the work transformative or educational; 2) the nature of the work, i.e. is it fiction or non-fiction, published or not; 3) how much of the copyrighted word is used and is it the heart of the work; and 4) what does the use do to the value of the original work.
Stay with me here, because I know it sounds like a pretty opaque concept at first, but it's used easily and without mishap often. Basically, a song parody or a book review that includes a quote takes advantage of the fair use principle to use the original song or the quoted material, respectively. (Notable exception: Weird Al Yankovic gets permission from recording artists and licenses every song he parodies rather than claiming his songs as fair uses. Check out artist reactions to Weird Al's requests to parody. Kurt Cobain's reaction is priceless.)
What I find so compelling about fair use is that it sits exactly at the place where the law and popular culture and digital culture are colliding. As has been noted umpteen times in the last few years, we live in a remix culture, and remixed work relies upon source material, and source material requires money to create. So the law struggles to untangle the need for creators to make a living from the need for the rest of the public to inform, criticize, comment, and mashup. And that's what fair use deals with.
Most of the programming I saw at World's Fair Use Day dealt with multimedia uses of copyrighted work that were critiques/commentaries that were clearly transformative to me. For example, Jonathan McIntosh's So You Think You Can Be President is an overt critique of the political process but it's an even more inciseful commentary once you read about what he's trying to accomplish below the comedic surface. The same holds true for his Buffy vs. Edward from Twilight (accompanying explanation here).
Fair use in multimedia can be a murky proposition, but seems to be an easier case to make once guidelines are established. That may be wishful thinking on my part, but it's still a far easier argument to make than fair use in music.
After all, practically speaking, how do you recognize a critique or commentary of a song that's being sampled? How do you delineate a non-transformative use of a sample from one that is transformative? I consider Girl Talk, for example, to be transformative in how he juxtaposes and recontextualizes samples, but is that fair use? Cardozo Law Review writes two fictitious opposing opinions, Idolator stands firm, and the New York Times even weighs in.
The existence of that gray area is exactly why I find the topic of fair use so fascinating: sampling in music today creates art that's valid, valued, and culturally relevant but the law has no standardized way to recognize it - imagine it as music in its own private Guantanamo Bay.
All that's not to say there aren't ways to deal with sampling in music. There are, but unfortunately, they're clunky and expensive and not conducive to the creative process. There are also creative remedies to improve the current sample clearance process. But those remedies are almost beside the point if musicians have to circumvent fair use - the system set in place by copyright law for precisely this purpose - to create music that doesn't flout copyright law and and allows them a chance to make a living from their art.