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Volokh Conspiracy

Last Monday: Second Circuit Fair Use Day (Drake + Sargon of Akkad)

Four Second Circuit judges gave fair use victories (separately) to rapper Drake and blogger Sargon of Akkad, concluding that defendants' uses of plaintiffs' work to comment on it and criticize it were fair use and thus not copyright infringement.


The Feb. 3, 2020 decisions seem to follow well from the logic of the Supreme Court's 1994 Pretty Woman case (Campbell v. Acuff-Rose, or, if you prefer, 2 Live Crew v. Roy Orbison); they seem likely to be influential in the future, though they aren't binding precedent.

[A.] From Estate of Smith v. Graham (2d Cir.) (nonprecedential) (per Judges Guido Calabresi, Rosemary S. Pooler, and Susan L. Carney):

[1.] The first [statutory fair use] factor supports fair use because the use was transformative. A work is transformative when it "uses the copyrighted material itself for a purpose, or imbues it with a character, different from that for which it was created."

"Pound Cake" does just that. The message of the "Jimmy Smith Rap" is one about the supremacy of jazz to the derogation of other types of music, which—unlike jazz—will not last. On the other hand, "Pound Cake" sends a counter message—that it is not jazz music that reigns supreme, but rather all "real music," regardless of genre. Beyond the text of the lyrics themselves, "Pound Cake" situates its sampling of approximately thirty-five seconds of the "Jimmy Smith Rap" at the beginning of an approximately seven-minute-long hip-hop song in which Drake and Shawn Carter, professionally known as Jay-Z, rap about the greatness and authenticity of their work.

Through both the alteration of the "Jimmy Smith Rap" and the rest of the rap's lyrics, "Pound Cake" emphasizes that it is not the genre but the authenticity of the music that matters. In this manner, "Pound Cake" criticizes the jazz-elitism that the "Jimmy Smith Rap" espouses. By doing so, it uses the copyrighted work for "a purpose, or imbues it with a character, different from that for which it was created."

[2.] We need not spend much time on the second factor, the nature of the copyrighted work. This factor "has rarely played a significant role in the determination of a fair use dispute," and when a work is transformative, the factor may nonetheless support fair use. The district court found that the second factor weighs against a finding of fair use here. This factor is of "limited usefulness," however, where, as we have determined applies here, "the creative work of art is being used for a transformative purpose."

[3.] The third factor too supports fair use. This factor looks at "whether the amount and substantiality of the portion used in relation to the copyrighted work as a whole are reasonable in relation to the purpose of the copying." We have been clear, however, that "the law does not require that the secondary artist may take no more than is necessary." Cariou v. Prince, 714 F.3d 694, 710 (2d Cir. 2013). "The secondary use must be permitted to conjure up at least enough of the original to fulfill its transformative purpose." Here, the amount used by Defendants is reasonable. While "Pound Cake" borrows language from the "Jimmy Smith Rap" detailing the production process for Off the Top, this was necessary to emphasize its own message: that the ultimate attribute of music is its authenticity, not the production process that created it.

[4.] Finally, the fourth factor also weighs in favor of fair use. "The final statutory factor considers the effect of the use upon the potential market for or value of the copyrighted work, focusing on whether the secondary use usurps demand for the protected work by serving as a market substitute."

In the case at hand, there is no evidence that "Pound Cake" usurps demand for "Jimmy Smith Rap" or otherwise cause a negative market effect. "Pound Cake," a piece by a hip-hop artist about rap and hip-hop music, appeals to a much different audience than does "Jimmy Smith Rap," which was a piece by a jazz musician on a jazz album about jazz music. Nor is there evidence of the existence of an active market for "Jimmy Smith Rap," which is vital for defeating Defendants' fair use defense.

[B.] The same day, Second Circuit Judge Richard J. Sullivan sitting by designation in District Court issued a fair use opinion in Hughes v. Benjamin (S.D.N.Y.), the Akilah Obviously v. Sargon of Akkad / We Thought She Should Win v. SJW Levels of Awareness case:

[Akilah] Hughes is a popular "content creator" and filmmaker who maintains the YouTube channel "Akilah Obviously." Her work "covers a broad range of topics[,] including comedy, race, social commentary, feminism, beauty, and fashion."

On November 8, 2016, the night of the 2016 presidential election, Hughes filmed Hillary Clinton's campaign party at the Jacob Javitz Convention Center in Manhattan. Ten days later, Hughes posted a nine-minute-and-fifty-second video titled We Thought She Would Win to her YouTube channel. The video contained her campaign party footage, as well as her thoughts on the night's events (both during the night and after the night was over), including commentary on the implications of Secretary Clinton's defeat by now-President Donald Trump. The video begins with Hughes at the Javitz Center, early in the night, stating that she is "really excited to be … a woman in the year 2016 after having … a black president for eight years and now we have Hillary who could potentially be our next president." The video then cuts to Hughes reflecting back on election night after Secretary Clinton's loss, noting that "no one thought she wasn't going to win, so it started out as a very exciting evening and like full of hope" before the mood "just like crept down, until forever." The final five minutes of the video consist of wide-ranging commentary, including Hughes urging her audience to "stand up" before violence is committed against minorities, her negative feelings toward the year 2016, and her gratitude for being "surrounded by like-minded people" in New York City….

[Carl] Benjamin, like Hughes, is a content creator and filmmaker who maintains the YouTube channels "Sargon of Akkad" and "The Thinkery," where he publishes "anti-ideological and anti-identitarian" content focusing on "'the left', racism, feminism, Black Lives Matter]], and Islam." Benjamin is "publicly known for his provocative style and strongly-held beliefs against liberal social and political stances."

The day after publishing We Thought She Would Win, Hughes discovered that Benjamin had posted the video SJW Levels of Awareness, comprised entirely of six clips of We Thought She Would Win totaling one minute and fifty-eight seconds, to one of his YouTube Channels. According to the Complaint, "SJW" is an acronym for "social justice warrior," a term "routinely used by Benjamin in a demeaning context to belittle proponents of perceived liberal social policies and stances." SJW Levels of Awareness begins with Hughes expressing her excitement over the potential election of a female president, followed by a clip depicting her subsequent disappointment over Secretary Clinton's loss. SJW Levels of Awareness then cuts to footage of Hughes stating that Trump supporters mean to divide the country, urging people to speak out against bigotry, and observing that 2016 is the worst year of her life. The video concludes with Hughes declaring her appreciation for living with like-minded people in New York City. SJW Levels of Awareness includes no commentary or video recorded by Benjamin.

[1.] The first factor, "[t]he heart of the fair use inquiry," concerns the purpose and character of the allegedly infringing use.In the preamble to § 107, Congress identified "criticism, comment, news reporting, teaching, scholarship, and research" as illustrative purposes of a fair use. Additionally, the commercial use of the new work "may weigh against a finding of fair use," which favors non-profit educational purposes. But because "nearly all of the illustrative uses listed in the preamble paragraph of § 107 … are generally conducted for profit in this country," courts "do not give much weight to the fact that the secondary use was for commercial gain," Instead, the critical question when applying the first fair use factor is whether the new work is "transformative." Like the overall fair use determination, whether a work is "transformative" is "an open-ended and context-sensitive inquiry," based on "how the work in question appears to the reasonable observer." "[T]he critical inquiry is whether the new work uses the copyrighted material itself for a purpose, or imbues it with a character, different from that for which it was created."

Most relevant here, a new work may be transformative even where it consists entirely of portions of the original work, or indeed even where it is an "exact replication" of the original work. In Baraban v. Time Warner, Inc., for example, the court found that the first statutory fair use factor "weigh[ed] heavily in favor of fair use" where the defendant had "copie[d] the [plaintiff's] photo outright in order to comment on it and on the … advertising campaign in which the photo played an integral part." The court noted that the defendant's use of the photo was not exactly "parody [ ]or satire as those terms have been defined in the case law," but that the defendant's use of the photo in context—as part of a book containing critical commentary—nevertheless "clearly [fell] within the permissible use categories of 'comment' and 'criticism.'"

Here, it is clear from the face of Hughes's Complaint that Benjamin copied portions of We Thought She Would Win for the transformative purposes of criticism and commentary. Beginning with the title of Benjamin's work, SJW Levels of Awareness, Hughes herself acknowledges that "SJW" or "social justice warrior" is a term "routinely used by Benjamin in a demeaning context to belittle proponents of perceived liberal social policies and stances." … And "levels of awareness" is plainly used in a sarcastic manner when combined with "SJW," implying a lack of awareness concerning social or political matters.

Moreover, the critical nature of SJW Levels of Awareness is apparent from the broader context of Benjamin's YouTube channel, where it was posted. See Cariou, 714 F.3d at 705; see also, e.g., BWP Media USA, Inc. v. Gossip Cop Media, LLC, 87 F. Supp. 3d 499, 507 (S.D.N.Y. 2015) (finding the use of copied photographs transformative based on the surrounding context in which they were published). As the Complaint alleges, Benjamin "routinely engages and criticizes viewpoints on various social and political issues" on his YouTube channels, specifically targeting topics such as feminism, "the left," and Black Lives Matter. Thus, whether SJW Levels of Awareness is accessed by searching for "SJW"-related content on YouTube or by going directly to Benjamin's YouTube channel (or in some other way), a reasonable observer who came across the video would quickly grasp its critical purpose.

Furthermore, although courts have found transformative uses even in cases involving exact copying, the Court notes that SJW Levels of Awareness is not an exact copy of We Thought She Would Win. Rather, Benjamin excerpted We Thought She Would Win to depict the specific moments he felt exemplified Hughes's political identity and lack of awareness. For example, Benjamin included Hughes's prediction and hope that Secretary Clinton would win the election, while omitting footage that did not support his message, like Hughes's statement that Secretary Clinton won the popular vote with "record numbers." And he excluded content unrelated to his criticism, like Hughes's commentary on the societal benefits of YouTube. In this way, Benjamin excerpted We Thought She Would Win to maximize his criticism of Hughes's liberal viewpoint. { To the extent Benjamin's selective excerpting was not "fair" to Hughes in the colloquial sense of accurately conveying her level of awareness, courts will not, except in rare circumstances, reject a fair use defense based on the inaccuracy of a critical work.}

Finally, although the commercial nature of an allegedly infringing work is not necessarily a significant factor, the Court notes that the Complaint barely mentions the commercial or non-commercial nature of SJW Levels of Awareness. At most, the Complaint alleges generally that "Defendants have unfairly derived profits from [SJW Levels of Awareness] in the form of advertising revenues generated from its upload to and availability on YouTube," and "from increased popularity of their YouTube channel attributed to [SJW Levels of Awareness]." The Complaint, however, does not specify how the increased popularity of Benjamin's YouTube channel commercially benefited Benjamin himself, nor does the Complaint indicate whether the referenced advertising revenues accrued to Benjamin or to YouTube. In any event, insofar as there is a commercial aspect to SJW Levels of Awareness, it pales in significance to the considerations discussed above. See, e.g., Cariou, 714 F.3d at 708 ("Although there is no question that [the defendant's] artworks are commercial, we do not place much significance on that fact due to the transformative nature of the work.").

Because a reasonable observer would plainly infer from the title of Benjamin's video, the context in which it was posted, and its selective copying, that it was intended to criticize Hughes and comment on her perceived lack of awareness, the first fair use factor favors Benjamin.

[2.] The second fair use factor, the nature of the copyrighted work, "calls for recognition that some works are closer to the core of intended copyright protection than others," like works intended for "creative expression for public dissemination." … [This] factor, however, "may be of limited usefulness where the creative work of art is being used for a transformative purpose." Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605, 612 (2d Cir. 2006); see also Campbell, 510 U.S. at 586 (explaining that the nature of the copyrighted work is "not much help … in separating the fair use sheep from the infringing goats in a parody case, since parodies almost invariably copy publicly known, expressive works"). Here, the second fair use factor is essentially neutral and of little import…

[3.] The third statutory fair use factor turns on "whether 'the amount and substantiality of the portion used in relation to the copyrighted work as a whole' … [is] reasonable in relation to the purpose of the copying." … Here, SJW Levels of Awareness copied 20% of We Thought She Would Win, a percentage which, while greater than that found unreasonable in some cases in this Circuit, see Robinson v. Random House, Inc., 877 F. Supp. 830, 842 (S.D.N.Y. 1995) (collecting cases), was still far less than the entire video, see, e.g., Authors Guild, 755 F.3d at 98. In addition, although the selected excerpts were important to Hughes's video (at least as important as any other part of her video), they were also linked to the critical purpose of SJW Levels of Awareness. As noted above, Benjamin did not copy parts of Hughes's video that undermined or were unrelated to the critical purpose of SJW Levels of Awareness. Notably, Benjamin also did not copy every part of We Thought She Would Win that evinced Hughes's progressive views. Rather, Benjamin copied as much of We Thought She Would Win as was deemed reasonably necessary for him to convey his critical message. In these circumstances, the third factor tips in favor of Benjamin.

[4.] The fourth fair use factor concerns "whether the secondary use usurps the market of the original work." A defendant usurps the original work's market when "the infringer's target audience and the nature of the infringing content is the same as the original." Thus, "[t]he more transformative the secondary use, the less [the] likelihood that the secondary use substitutes for the original."

Here, there is no danger that SJW Levels of Awareness will usurp the market of progressive commentaries such as We Thought She Would Win. Benjamin's target audience (generally political conservatives and libertarians) is obviously not the same as Hughes's target audience (generally political liberals). Moreover, although SJW Levels of Awareness is comprised entirely of portions of We Thought She Would Win, there is no reason to think that Hughes's audience will abandon her progressive YouTube channel to watch the derisively-titled SJW Levels of Awareness on a conservative YouTube channel simply because it contains parts of her work. Thus, the fourth fair use factor, like the first and third factors, favors Benjamin….