Girl Talk: An Exploration of Copyrights and Fair Use

posted Sep 10, 2010, 9:16 AM by Calan McConkey   [ updated Sep 10, 2010, 11:03 AM ]
I felt the need to write a blog post that was a little more substantive than usual -- more than just posting an interesting link and making a short comment. With that in mind, I couldn't think of a more appropriate topic than that of Girl Talk as he is in Kansas City tonight for one of his amazing shows. I've been to two of his shows and there is no way I would ever miss one that came to my area. That being the case, I will obviously be there tonight. For those of you that are not aware of Girl Talk, I would advise you to take a minute and check THIS out...and then maybe stay for a few other videos on YouTube.

Essentially, Girl Talk (Gregg Gillis) is a mashup artist -- NOT a DJ, mind you -- who makes his living by mixing together snippets of many different songs to make entire albums of [arguably] new music. From a black and white legal perspective, what Girl Talk does is copyright infringement. It is copyright infringement because he is using the creative works of others -- their songs -- without their permission. So how can he continue to sell albums and perform live shows in front of thousands of people? The answer is the fair use doctrine.

As a basic explanation, the fair use doctrine allows an excuse (or "affirmative defense") for people that are infringing on copyrights (and trademarks, but we will save that for a different day). The doctrine is codified in 17 USC 107 and explains the four factors that must be examined when determining if a fair use defense is appropriate. The four factors are:

    1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
    2. The nature of the copyrighted work
    3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
    4. The effect of the use upon the potential market for, or value of, the copyrighted work

I've highlighted the portions above that I feel are relevant to the Girl Talk situation. Here goes my bare-bones legal analysis:

Factor #1: This weighs heavily against the defense of fair use for Girl Talk. He is not producing his music for "nonprofit educational purposes." Even though some might argue that his music is educational (stretch), he is ultimately making the music as a way to make money. Maybe in the past before he got big he was making music just for fun, but once you start selling albums and holding concerts across the nation and charging for tickets, you are now squarely within the "commercial nature" of factor #1.

  • "Transformative Use": This idea goes into factor #1 and it essentially states that the more you creative "transform" the copyright you are taking, the stronger case you have for fair use. Although the creative input and transformation by Girl Talk is quite substantial, I'm not sure it outweighs the fact he is making a good amount of money from his infringement.

Factor #2: I don't think there is much here for either side. The Supreme Court has said that "copying a news broadcast may have a stronger claim to fair use than copying a motion picture." That being the case, I would put this slightly against Girl Talk, but I feel that the other three factors are more determinative.

Factor #3: This cuts in favor of Girl Talk. For the most part, Girl Talk rarely samples more than a few seconds of each song he uses. For example: on his track "Play Your Part (Pt. 1)", Girl Talk samples somewhere around 25 different songs to make his one song that is 4:45 in length. This is on par with all of his songs. What this boils down to is that Girl Talk is using a very small portion of each song/copyright that he taking, which, accordingly, helps him with Factor #3.

Factor #4: This factor seems to be fairly subjective for the Girl Talk situation. In the music arena, a plaintiff claiming copyright infringement would argue that the illegal use of their work has damaged their sales, etc. Here, with Girl Talk, some would argue -- and I would agree -- that the use of the copyrights has not had much of an adverse effect, if any, on the potential market for those artists because the music that Girl Talk makes is usually a polar opposite of the music that he samples (i.e., layering Elton John with Notorious B.I.G.). Someone who likes Elton John is not going to go buy the new Girl Talk album instead of the new/old Elton John album. I would further argue that by using the songs in his mashups, Girl Talk is actually helping the market of the copyrighted songs. What I mean by this is that someone who listens to a Girl Talk track may hear a sample of a song they like, that they never knew of or had forgotten about, and then go purchase that song from the artist. Personally, I have had this happen to me on more than one occasion. So, although I may be slightly biased, I would count factor #4 in favor of Girl Talk.

So, for those of you still following along, what are we left with? What we are left with is a standard copyright infringement-fair use analysis, with an answer of...maybe. Yep, that's about all I have. Maybe Girl Talk has a winning fair use argument but, then again, maybe he doesn't. The problem is, we will never know until there is a lawsuit. Because fair use is an affirmative defense, Girl Talk will have to be sued before we can ever see how this law school-type hypothetical will actually play out. Personally, as a huge fan of his, I would hope Girl Talk would win so he could keep making music. Even more so, I hope that we never have to worry about the answer because he is never sued. As of right now, that is looking to be the case, interestingly enough. I assume that he is still lawsuit-free due to the increased relevance he brings to the songs that he uses (and the he doesn't cut into their market, like in Factor #4). While we are all waiting to see what happens, I will plan on heading out to his concert tonight to enjoy some copyright infringement at its finest.


Afterthought: I recently watched a documentary that deals with copyrights and litigation here in the United States. The film also heavily features Girl Talk. It is called R!P: A Remix Manifesto. I believe it can be viewed for free, without infringement, on Hulu. Check it out if you enjoy Girl Talk and/or copyright law.



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