"Fair Use," Al Green and President Obamaâs Reelection Campaign

A few years ago, filmmaker and conceptual artist Pierre Bennu produced a video treatment for Imani Uzuri’s song “SunMoonChild” from her 2008 recording Her Holy Water.  Using archival footage of Black performers, Bennu’s video brilliant explored the connection between the traditions of Black dance, movement and musical culture.  A year after the video appeared on YouTube, the site abruptly removed the video charging the filmmaker with copyright infringement. After some legal wrangling, Bennu re-uploaded the video citing the principle of “Fair Use.”

“Fair Use” has recently been bandied about in this year’s presidential campaign.  When the Romney campaign started running an ad (“Political Payoffs and Middle-Class Layoffs”), mocking President Obama’s performance of the song “Let’s Stay Together,” BMG Rights Management, the company that controls the publishing rights to Green’s recording, which was written by Green, Al Jackson, Jr. and Willie Mitchell, demanded that the video be taken down by YouTube, citing, of course copyright infringement and the 1998 Digital Millennium Copyright Act, which was designed to protect corporate interest in the digital era.

BMG’s decision is curious, in that, there was initially little concern about President Obama’s original performance of the song.  In truth, the President’s performance at a January fundraiser of the led to a 490% increase in the song’s digital sales—more than 16,000 downloads—in the weeks after the widely circulated clip was released.  

The President’s performance of the song highlights some of the major inconsistencies regarding copyright law and the recording industry.  An artist can record a previously recorded song, by only having to pay a nominal publishing fee, as was the case when Tina Turner rebooted her career nearly 30-years ago with her cover of Green’s “Let’s Stay Together.”  But had an artists simply sampled any part of the Green’s song, not only would they have had to seek permission for the right, but in most cases might have to pay a royalty rate that would make the use of the sample prohibitive for most artists.

This is where Fair Use comes into play, as artists and others, are given some latitude in terms of the ways in which they can borrow, repurpose, remix and parody existing artistic expression. In Parodies of Ownership: Hip-Hop Aesthetics  and Intellectual Property Law, scholar Richard Schur details four factors that govern Fair Use: 1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;  2) the nature of the copyrighted work;  2) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and 4) the effect of the use upon the potential market for or value of the copyrighted work.  

There was initially little concern about President Obama’s original performance of the song...the President’s performance at a January fundraiser of the led to a 490% increase in the song’s digital sales in the weeks after the clip was released.

In short, if someone’s use of existing “intellectual property” doesn’t impact the value of the original (in many cases it actually does the opposite) one can claim Fair Use.  

The principles of Fair Use have become particularly relevant in the digital age, as many will appropriate existing forms of artistic expression, simply out of a desire to make political or social commentary, with little concern for commercial value.

Four years ago, for example, when an Obama speech in North Carolina was mashed with Jay Z’s “Dirt Off Your Shoulder” during the 2008 Democratic primary season, his reference to the song and the mashup were heralded as exemplars of how digital technology and social media were leveling the political process. There was little pushback from Jay Z or the song’s publisher EMI Music Publishing, particularly given Jay Z’s role as an Obama surrogate.

No doubt the Reverend Al Green also felt some pride in President Obama’s initial use of “Let’s Stay Together,” if only because the leader of the so-called “free world” gave him the best press possible.  When BMG Rights Management pulled the Romney ad, I suspect that Green was not far away, given his own affinity for the president’s campaign.  Indeed the publishing company, might have had its own interest in not trying to tarnish its “intellectual property” by having it serve as a  pawn in a political spectacle.

Nevertheless, as Duke University Law Professor James Boyle, an expert on Intellectual Property explains, the Romney campaign was well within its rights to use the footage of President Obama.  As Professor Boyle explains, “This sounds like a fair use no-brainer. If the reports of the length of the clip and the context are correct, then you have the use of an insubstantial amount, in a transformative manner, of a clip being used as commentary on a political event in a non commercial context, that has no impact on the market for the original.” Boyle adds, “If you don't think that is a fair use, you get a 'D' or possibly an 'F' on your copyright law exam. Sure, media companies might like to