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© 2003, Gallagher & Dawsey Co., LPA
November 2003
In the courts of the Southern District of New York, rap recording
artist Dennis Coles, better known as "Ghostface Killah," won the right
to use parts of a copyrighted work as part of a rap creation. In his
song "The Forest," Coles uses parts of the song "What a Wonderful
World," made famous by Louis Armstrong, under the "fair use" doctrine.
Noting that Coles' version of a dark, drugged world stood in marked
contrast to the optimistic and positive nature of "Wonderful World,"
the court reviewed the standards for fair use, particularly examining
the exception for parody. The court dismissed the plaintiff's argument
that "The Forest" did not use enough of the underlying work to be a
true and full parody, finding that no minimum or maximum amount of
work copied was required to define the "fair use" exception, and that
to require a minimal amount of work to qualify for either parody or
infringement would defeat the purpose of the doctrine. The court's
decision highlighted two critical factors in every "fair use"
determination.
The first is the so-called transformative nature of the alleged
infringement. Coles' use of "Wonderful World" in his rap was a near
reversal of the entire tone and meaning of the underlying work. In
other words, the allegedly infringing use had become essentially a new
work. There was virtually no chance of mistaking one work for the
other.
The second is consideration of what effect the alleged infringement
will have on the marketability of the underlying work. The court found
that there would be no effect on any non-parody version of "Wonderful
World," even going so far as to hypothesize a commercially successful
non-parody rap version of the song, and therefore found that the
copyright holder was not injured in his or her sales of the music.
In addressing, and dismissing, plaintiff's arguments as to amount of
work copied, the court drew attention to the common myth that a
certain amount of work must be copied in order to find infringement,
or, conversely, that copying below a certain amount can grant immunity
to infringement under the "fair use" doctrine. There is no absolute
length or content test for infringement! Key questions remain: (a) a
substantial similarity to the work in question, (b) the purpose of
copying, (c) any transformative nature of copying, and (d) any risk of
confusion to the public or of economic loss to the original copyright
holder. |
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