If we need further evidence of how social media makes a story viral and then forgets about it five seconds later, let’s think way back to last week when Dr. Dre took on Rep. Marjorie Taylor Greene, R-Ga., for using his music on social media without his permission.
As Vanity Fair aptly described it, MTG’s video was “cringey,” which is probably the understatement of this new year. The video, which has since been taken down because of Dre’s legal team initiating a copyright claim — though the tweet remains in infamy — was a perfect example of taking of an artist’s intellectual property.
As Dre said to TMZ, in no way had he licensed his music to MTG: “The mega-producer tells us … ‘I don’t license my music to politicians, especially someone as divisive and hateful as this one.’”
There is a way to use an artist’s intellectual property without their permission, which is to sufficiently transform it so as to change its nature. This legal concept is known as transformative fair use, and it was used in a battle between Andy Warhol’s estate and a photographer.
This case was about Warhol believing that he could use images taken by a photographer of Prince because Warhol’s own art based on those photographs transformed the original work.
The concept of transformative fair use is based on the principle that copyright law should promote creativity and the free flow of information while also protecting the rights of copyright holders.
As New Jersey attorney Mark Davis says: “In the case involving Andy Warhol’s estate that the Supreme Court heard in October, the key issue is whether the Warhol photos gave the original photos a new message or meaning. If the justices believe Warhol’s photos did, then the court will find in favor of his estate.”
The courts have developed a four-factor test to determine whether a particular use of a copyrighted work is fair use:
1. The purpose and character of the use: This factor looks at whether the use of the copyrighted material is for a commercial or non-commercial purpose and whether it is transformative or simply a reproduction of the original work. Transformative uses are more likely to be considered fair use because they add new expression, meaning or insight to the original work.
2. The nature of the copyrighted work: This factor looks at the type of work being used (such as a novel or a song) and whether it is considered to be more or less deserving of copyright protection. Generally, works that are more creative and original (like a novel) are considered to be more deserving of protection than more factual or functional works (like a telephone directory).
3. The amount and substantiality of the portion used: This factor looks at how much of the copyrighted work was used in relation to the entire work and whether the part used is the “heart” of the work. In general, the more of the work used, the less likely it is to be considered fair use.
4. The effect of the use on the market for or value of the copyrighted work: This factor looks at whether the use of the copyrighted work is likely to harm the market for or value of the original work. If the use is likely to harm the market for the original work, it is less likely to be considered fair use.
When it comes to transformative fair use in the music industry, courts generally look at whether the new work adds something original, whether it changes the purpose or context of the original work and if it creates a new market to compensate the copyright holder.
Regarding the war between Dre and MTG, how could a politician transform the use of a popular song to avoid a cease and desist in the future?
It would have to be such a small use of the original copyrighted work, used for a different purpose (perhaps a different medium), and it couldn’t affect the value of the original.
Instead of a politician being as uncreative as they usually are and just stealing a song, maybe they take a lyric (without the music) and use it for a campaign tagline — “Southern Woman,” for example — for MTG’s next campaign, based on the title of a Neil Young song.
Even that is going to be a borderline use case. It would indeed cross the line if it used the song’s tune, referenced any of its lyrics, or even came out and said that the tagline was based on the song. This shows how difficult transformative fair use can be, especially in the context of what we saw with Dre’s intellectual property.
Of course, this won’t be the last time a politician uses an artist’s work without permission. Cease-and-desist notices are one thing, but if politicians need to eventually pay for the illegal use of IP, that will have the chilling effect artists seek.