Comments on: Why can Girl Talk license his work, and why can’t I?

By: laurenhenry

laurenhenry — Sat, 21 Feb 2009 22:06:16 +0000

Your question at the end seems to be about what the law should allow, and not about what the law does allow. (If you’re talking about what the law allows, if I understand the process correctly, one can license anything, procedurally. The real question is whether the license will stand up if contested. Assuming those artists have traditional copyrights on those works, they’d be able to make a strong argument that your creation was not fair use.)

We should not be so quick to say that licensing a mashup of a certain type “should” be allowed, independent of context, use and who has consented to it. To play devil’s advocate, people being hesitant to post/license/promote highly derivative mash-ups has some positive effects. For example, I suspect that the unacceptability of mashups that are too similar to the original may be desirable for less famous artists. Some artists might want their work to have a chance to penetrate a market in its original form, and would not appreciate a slightly altered version being distributed and promoted by another.

I think this experiment illustrates the rationality of Creative Commons and similar licenses, though. Considering how readily people can make derivative works, it makes sense for authors to explicitly address the relationship they want to have with people who make derivative works. Ideally, the norm will be for creators to think of each work as a potential parent work, and consciously determine, in licensing that work, how they want to relate to daughter works. Staking the widest claim possible on your copyrighted work is not really the most practical or profitable model anymore.

By: Grace A

Grace A — Tue, 17 Feb 2009 03:43:51 +0000

“Fair Use basically says that, under certain circumstances, people can sometimes use some of another person’s copyrighted work sometimes. Sometimes. Depending. On stuff. This is why lawyers get paid a lot.”

It’s also why lawyers usually tell their clients to get a license to use even small portions of copyrighted works rather than taking their chances in court.

On another note, I’m pretty sure your definition of fair use is at least as coherent as the one in my IP textbook…

By: Elizabeth Stark

Elizabeth Stark — Mon, 09 Feb 2009 19:27:49 +0000

Girl Talk’s work is surely highly transformative, and this should weigh positively for factor #1.

As for factor #2, the nature of the copyrighted work, the works sampled from are creative in nature instead of factual. While this factor may slightly weigh against him, it is not dispositive.

For factor #3, do you think Girl Talk is sampling the “heart of the work?” As discussed in class, under Harper & Row, even the use of a short portion of the work may not be fair if it is considered to be the “heart” of the work. I think this may be Girl Talk’s greatest challenge.

By: Bonanza C

Bonanza C — Wed, 04 Feb 2009 20:41:01 +0000

In response to the nature of the work, I think that refers to whether it is mainly factual or creative. Something like an encyclopedia or a telephone book would be considered more factual than a song. The more factual it is, the more it helps the defendant, and the more creative, the more it helps the copyright owner. In the article we read by Carroll, it mentions that in general this guideline helps copyright owners since most works have some level of creativity in them. This would most likely hurt Girl Talk since all the copyright work he takes is completely creative in nature.