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At 08:13 PM 8/27/98 -0500, Mikell D. Nelson wrote:
>> An example of fair use is right in front of you. Stephen used a portion
>of a
>> published work of Motley's, verbatim, for the purpose of commenting on
>it.
>> Motley had used another's published work before that, in his post, also
>> verbatim. I'm now "sampling" both of you and reusing your work in this
>piece
>> that I am about to publish. Somebody will undoubtedly reuse my creative
>work
>> as a part of subsequent comments. In no case did anyone seek permission
>from
>> the publisher of the various pieces before doing this. And they don't
>have
>> to, because of Fair Use.
>
> There is one important difference in this example and the sampling of
>music for production of other music: an artist is trying to make a
>living from the original music and the person doing the sampling
>(copying) is also trying to make money. If the copier doesn't make any
>money or doesn't reduce the amount of money the originator can make from
>his creation, then I have no beef.
>
>Motley
Well, from the "10 Big Myths about copyright explained" webpage, helpfully
provided by Sean:
2) "If I don't charge for it, it's not a violation."
False. Whether you charge can affect the damages awarded
in court, but that's essentially the only difference. It's
still a violation if you give it away -- and there can
still be heavy damages if you hurt the commercial value
of the property.
Like I said before, money is not necessarily an issue in a copyright
violation.
However, with Fair Use, one of the legal requirements for something to
qualify as fair use has to do with whether the usage infringes on the
author's ability to earn from their work. The specific clause for a fair
use
determination is:
(4) the effect of the use upon the potential market for or
value of the copyrighted work.
So if the person using the sample is operating in a completely different
market, they are more likely to win a fair use defense. By necessity,
someone getting Fair Use would not be interfering with the original
author's
market. The only available case about sampling dealt with this. 2 Live Crew
was sued for using Roy Orbison's Pretty Woman. They won a fair use defense
partly because their song was considered a parody, and partly because
nobody
in their right mind would ever confuse a 2 Live Crew album with a Roy
Orbison album! 2 Live Crew's use did not have any effect on the sales of
the
song by Roy, so Roy's publishing company didn't have much of a case.
It doesn't matter if you put a lot of work into creating something and feel
you are owed compensation for work done. Copyright (and intellectual
property in general) don't work that way. It's all about sales and market
size, not sweat.
kim
________________________________________________________
Kim Flint, MTS 408-752-9284
Chromatic Research kflint@chromatic.com
http://www.chromatic.com