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What gets the green light for ‘Fair Use’? (Photo credit: katerha)

When should you be allowed to use someone else’s intellectual property?

To some extent that’s what “fair use” in U.S. copyright law is there to answer, but in reality it rarely provides a concrete justification, only more uncertainty.

A House Judiciary IP Subcommittee will attempt to put some meat on the bone of the subject today. A panel of expert witnesses including singer-songwriter/academic David Lowery and Professor June Besek of Columbia Law School will offer their insight on ‘The Scope of Fair Use‘ from 1:30pm. Sizing up this deceptively simple title has long been an important matter for creators, whether they are the ones creating works inspired by others or the one whose creations are being used.

Deciding when someone has crossed the line in their use of a work under copyright lies at the heart of the law, balancing the rights of the individual creator to profit from their work with the wider public benefit of allowing criticism, commentary, education and derivative works to flow. It’s a complex element of the creative ecosystem and one that almost every artist and writer will come up against at some point in their career. For a fresh example of this, look no further than the recent legal tussle over the 2013 summer hit ‘Blurred Lines’, between Robin Thicke and the family of Marvin Gaye.

The case over the song’s similarities to Gaye’s ‘Got to Give It Up’ was recently settled on the record label side, which answers few questions on the topic but does at least show us that Sony/ATV believed that Gaye’s representatives had some higher ground. Thicke’s ongoing defense, and the fact that commentary around the similarities is often equally divided down the original vs. derivative work line, shows just how careful musicians need to be when channeling inspiration from other artists.

Another pillar of the fair use shelter is the context in which another musician’s work is used. Parody, for example, is widely covered and has built the career of niche artists like ‘Weird’ Al Yankovic and Richard Cheese. The former calls it “pop satire,” but it’s the parody allowance that means his work goes unchallenged.

Educational and non-profit uses also stand a better chance of qualifying, where as any commercial context is likely to have lawyers on high alert, as in the Goldieblox case late last year. Interestingly that company decided to pursue a convoluted justification that was two-parts parody, one part inspiration, but the end result was still that they pulled their take of a Beastie Boys song from public view. If there’s a feeling that the party channeling an original works is profiting from it without compensating the copyright holder, there will almost always be a case to answer.

Going back to Robin Thicke for a second, his song title ‘Blurred Lines’ is a perfect summation of the current state of fair use. Those at the subcommittee hearing will be hoping that they can sharpen up some of the guidelines around this uncertain-yet-vital nuance of copyright law.

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