7Mar/11Off

Compliments Breed Confidence II

Beneficial, Thun, Versive, Kace, and even Hamza 21 had some interesting takes on the biting dilemma. Everyone has an idea about when mere influence turns into biting. Hamza 21 is a literalist. Hamza 21 feels that “biting is biting.” Versive and Kace feel that there is a difference between “totally jacking a line and re-working it to create something new.” Thun points out that there is an arbitrary standard that the peanut gallery fails to apply to certain artists.

Since this topic is so unsettled I figured we could go through some legal analysis. I know that laws are manmade and that they are not perfect.  I know some laws do not make sense.[1] But let’s give all our opinions a frame a reference by applying intellectual property law to our biting dialectic. Once again, I am not saying the law in this situation is right.[2] But maybe you will agree with it. And in future conversations you’ll have more than your opinion in this now-non-opinion-based conversation.

(BELOW IS NOT LEGAL ADVICE AND IT IS NEVER CERTAIN HOW COURTS WILL COME OUT ON THESE FACTORS)

According to intellectual property law, there are two broad elements of infringement.

Infringement is essentially “biting.” The first element is “actual reproduction,” in other words actual copying. The second element is an inquiry- was the protected material owned by the intellectual property owner? In other words was the bitten material owned by the person asserting biting (infringement)? In this part of the analysis Hamza 21 seems to be on point. Here, according to the law, “biting is biting.” But unlike Hamaza 21 and other “borked out super-conscious underground four Velamints of hop-hip types,”[3] the majority of people and law makers understood that if this were the end of the analysis science, progress, and the arts would be terribly underdeveloped.[4]

So, there is sometimes a defense to biting (infringement). The defense is called Fair Use.  There are 4 factors courts consider in determining whether the accused biter’s use is fair (not biting).

1. The court looks at the purpose and character of the use- Was the use of the work transformative or supplanting? In other words, is the accused biter’s work much different than the original work? Next, was the allegedly bitten work used for commercial use? The most ideal situation for an accused biter is for the work to be transformative and noncommercial, like these mix tapes for example: free, transformative, and really good.[5]

2. The courts look at the nature of the copyrighted work- Are we talking factual works or fictional works? Are they published or unpublished? Factual and published works are the best situation for the accused biter.

3. The courts look at the amount and substantiality of copying- Did the accused biter take more than necessary in terms of quality and quantity? Did the accused biter pay a licensing fee?

4. Effect of use on the potential market for the song (the most important factor) – Will the accused biters act potentially harm the market (present or future) for the original song writer’s work? For example, will fans no longer listen/buy Willie Hutch’s I Choose You, because UGK sampled the beat on the International Player’s Anthem? Probably not.

Quiz-  Now you do the analysis:

ANSWERS HERE!!!

— Droopy


[1] Why property transgressions are treated more severely than bestiality?

[2] But it holds more weight they your opinion.

[3] Thanks Thun!

[4] Article I §8 cl.8 of the Constitution

[5] Honestly, check these boys out, bound to blow up!

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