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Copyright Law & Fair Use: Who's Stealing?

ckosarek's picture

          In 1981, Soft Cell, a British musical duo, released “Tainted Love,” which quickly climbed to number one on the Billboard charts (Billboard). Twenty-five years later, pop signer Rhianna released “S.O.S,” which featured the musical arrangement originally produced by Soft Cell as its background track. Before you read, listen to the tracks ( and and think about whether Rhianna had the right to reproduce Soft Cell’s composition – is her form ‘novel’ enough to be considered separate and new from Soft Cell’s hit?


In his work, Reality Hunger, David Shields makes an argument for the abolition of copyright law, asserting that all creative works, discoveries, and ideas belong to the collective knowledge of the public. Indeed, his text is filled with quotes and paraphrases (not cited, except for the reluctant reference list at the end of the volume that Shields encourages his readers to destroy) purposefully placed so that the line between Shields’ own writing and the writing of the ‘community’ blend together. Though Shields certainly makes his case against copyright within the pages of his volume – using everyone from James Frey to John D’Agata as his evidence –, he fails to acknowledge the pragmatic implications – for example, the economic consequences – that the abolition of copyright law would entail. Before I analyze why Shields’ argument is invalid within our cultural context, however, it is necessary to explore and define copyright law as it stands in the United States, giving careful attention to the concept of ‘fair use.’ Thus, this initial paper will examine copyright law and its development, while my following paper will critically analyze Shields’ argument and expand upon why copyright law remains necessary for contemporary creators of original works.


In its most basic definition, the owner of a copyright has “the exclusive right to reproduce, distribute, and, in the case of certain works, publicly perform or display the work; to prepare derivative works; in the case of sound recordings, to perform the work publicly by means of a digital audio transmission. . . [and] to license others to engage in the same acts under specific terms and conditions” (U.S. Copyright Office). The copyright of a work applies only to the work itself – meaning how an idea is represented – rather than the idea behind the work, as“[c]opyright protection does not extend to any idea, procedure, process, system, method of operation, concept, principle or discovery” (U.S. Copyright Law, Section 102). The allusion to Tolstoy’s Anna Karenina on page three of Alison Bechdel’s Fun Home, for example, would not fall under copyright infringement of Tolstoy’s original work (if Tolstoy was still alive, that is) because though Bechdel replicates Tolstoy’s idea, she does so through a novel medium. (I say “if Tolstoy was alive” because an author’s copyright of his material expires fifty years after his death (Guinan 73-74).


Having stated this basic definition of copyright ownership and scope, let us turn to the origins and history of copyright law in an effort to further understand its purpose. The original model for United States copyright law was passed down during the British colonial occupation. In 1709, the British passed the “Act of 8 Anne,” which gave book authors a few vague rights over their work for a short period of time (Duke University School of Law 74). Because the act was imprecise in delineating which works it protected (did it cover unpublished works as well as published ones?) and for what length of time the works were protected, several judicial decisions came to better define the boundaries of the act (establishing, for example, that although an author had “perpetual literary property” over his unpublished works, his published works were protected only during the time period specified in 8 Anne) (Duke University 74).


Using the model of the British, the newly formed United States enacted the first copyright law on May 13, 1790 under Article I, Section 8 of the constitution (U.S. Copyright Office). It protected “books, maps, and charts” for fourteen years, at which time the copyright would have to be renewed (U.S. Copyright Office). Several subsequent revisions expanded the law to protect artwork, translations, dramatic performances, musical compositions, computer programs, and motion pictures (U.S. Copyright Office). As technology developed, copyright law was pressed to redefine not only the types of creations it protects, but the ways in which the public may use those creations.


By 1911, the British Parliament had updated their 1709 Act of 8 Anne with the principle of “fair dealing,” an effort to “reward the author [of an original work], and to stimulate other authors to produce for the benefit of society” (Duke University 75). Fair dealing ensured that creators would be able to obtain royalties from their work, but also opened their work to inclusion in subsequent works of other creators (provided that, of course, the entirety of the original work was not copied). There were no quantitative guidelines as to how much of an original work could legally be used by another creator (Duke University 102). When the United States adopted the concept of “fair use” based upon the British’s “fair dealing,” it was decided that using a copyrighted work “fairly” meant that the subsequent creator’s work was not “substantially similar” to the original work and did not affect the royalties that the original creator might make from his work (Duke University 80-81).


“Fair use” brought the complexity of copyright infringement to the forefront of copyright law issues. Sections 602 and 122 of the United States copyright law defines infringement as the importation, transmission, or exportation of copyrighted works that violates the copyright holder’s exclusive right to “distribute copies or phonorecords” (U.S. Copyright Law, Section 602). That being said, “fair use” is defined “as a privilege in others than the owner of a copyright to use the copyrighted material in a reasonable manner without . . . consent” (Duke University 87). What constitutes a “reasonable manner” has been the subject of many judicial cases, however. As stated in the Duke University Law Review, the United States courts “recognized that overzealous restrictions on paraphrasing could hinder the free use and dissemination of ideas . . . in short, the ideas [of a work] could be used, but employment of the same mode of expression would be deemed infringement” (Duke University 77). Thus, the line between infringement and “reasonable” use became blurred. Take again, for example, Shields’ Reality Hunger. Had his list of references not been present in the text, is it “reasonable” to say that Shields’ compilation of sources is different enough from the medium in which the sources were first presented that the original authors of his quotes do not need to consent to Shields’ inclusion of their work? Did James Shapiro’s presentation of his own original text differ substantially from Shields’ presentation of the same words in section 475 of Reality Hunger?


The goal of copyright law is twofold: it seeks to “[encourage] individual effort by personal gain” and to further the body of artistic and scientific knowledge within our culture (Duke University 89). The law hinges on economic gain as motivation for creators, acknowledging that our society is one sustained by economic trade and that creative efforts are done not solely for moral, intellectual, or artistic reasons, but for practical, economic reasons as well. In light of the information I have presented on copyright law and fair use, I ask you to again consider the two music tracks with which I opened this paper. Was Rhianna using Soft Cell’s composition fairly? Or was Rhianna infringing upon the monetary reward Soft Cell might have gained from their original work? Were the two songs “substantially” different? Further, where does Shields’ argument lie within these questions of artistic theft? In this digital age, in which media can be posted, torn apart, and reassembled in minutes, is copyright law still achieving its goal as stated by Article I, Section 8 of the Constitution – is it “[promoting] the Progress of Science and useful Arts” by protecting the exclusive rights of copyright owners?


Works Cited

Bechdel, Alison. Fun Home. New York City: Houghton Mifflin Company, 2007. Print.

Copyright Law of the United States. 17 USC. Sec. 101, 102, 122, 501, 602. United States

      Copyright Office, n.d. Web. 17 Sept. 2010. <>.

Duke University School of Law. "Copyright Fair Use: Case Law and Legislation." Duke Law

      Journal 1969.1 (1969): 73-109. JSTOR. Web. 17 Sept. 2010.


Guinan, James J., Jr. "Study of No. 30." United States Copyright Law History (Jan. 1957): 73-74.

     US Government . Web. 17 Sept. 2010. <


Rhianna. "S.O.S." A Girl Like Me. The Island Def Jam Music Group, 2006. YouTube. Web. 17

     Sept. 2010. <>.

Shields, David. Reality Hunger. New York City: Random House, Inc. , 2010. Print.

Soft Cell. "Tainted Love." Where the Heart Is. 1981. YouTube. Web. 17 Sept. 2010.


Trust, Gary. "Taking Peeks - Nos. 100-1." Billboard Top 100. N.p., 29 Jan. 2010. Web. 17 Sept.

     2010. <

     1004063735.story#/ column-chartbeat/ask-billboard-taking-peaks-nos-100-1-


"United States Copyright Office: A Brief Introduction and History." U.S. Copyright Office.

     United States Government , 2010. Web. 17 Sept. 2010. <




ckosarek's picture

Fair use?

I think most people are under the impression that the law is clear cut, black and white. Perhaps in some cases it is, but regarding 'fair use,' the law has historically left it to individual judges to decide how to quantify infringement. In the Duke Law Review article that I referenced, fair use is defined as whatever the judge deems fair. The fair use policy, therefore, somewhat models on the policies regarding pornography - it cannot be quantitatively defined, but you know it when you see it. (Of course, the argument can be made that 'outright' pornography is 'art'; in a similar war, it can be argued that 'outright' infringement is 'art' as well.)

In the face of how fair use has historically been regarded in case law, it is going to be difficult to pinpoint where, exactly, the line between fair use and infringement lies. The Duke article mentions three tests for determining fair use, one of which - the policy of asking a 'fair and reasonable man'  if the work before him is too much like another work  - is the crux of fair use case law. However, with this test we run into the problem of who is 'fair and reasonable' and, further, what to do in cases where some kind of expertise on a subject is needed to determine fair use.

Ultimately, to defend copyright law (as I intend to do in my next paper) will mean, possibly, suggesting alterations by which the law can be better defined in our own technological day and age. It is no secret that technology and creative innovation moves faster than law. What remains is a question of how to continue serving the greater populace (as the Constitution intended) while still rewarding individual efforts.


Anne Dalke's picture

Artistic Theft

it's very handy to have this historical review of copyright law, as a background to our thinking more together about its contemporary use-value; thanks for doing such a power of research. Of particular note, to me, is that copyright law was originally written (as you report) "to stimulate other authors to produce for the benefit of society," to "further the body of artistic and scientific knowledge within our culture," to promote "the Progress of Science and useful Arts.”

In other words, it attended primarily, and firstly, to the needs of the community: attending to the question of whether the group as a whole would benefit, and thinking about the difference between  near and far term advantages. Lewis Hyde makes these points, too, that "a patent is a contract between the inventor and the public," and that "copyright can be described as a grant whose true purpose is not so much to reward creators as to enrich the cultural commons.")

Of course I'm on the edge of my seat now, wondering how, against this background, you yourself will define controversial terms like "fair use." How will you answer your own questions? Do YOU think that "is it 'reasonable' to say that Shields’ compilation of sources is different enough from the medium in which the sources were first presented that the original authors of his quotes do not need to consent to Shields’ inclusion of their work?" Do YOU think that "Rhianna used Soft Cell’s composition fairly? Or was she infringing upon the monetary reward Soft Cell might have gained from their original work? Were the two songs 'substantially' different?" Setting up your next paper this-a-way is a sure way to guarantee yourself a readership!

Since I actually think I know where you will come down on these questions, though, I'd suggest that your further reading involve spending some serious time hanging out w/ the "opposite" point of view. What do you make of the work of Creative Commons (see a couple of recent student essays about this on Serendip: rmeyers' You Say Copywright, I Say Creative Commons, as well as ShaynaS's Steal This Essay). What do you think of Lewis Hyde's newly published argument advocating a cultural commons, Common as Air: Revolution, Art and Ownership? Since your first test case involves music, you should also be sure to check out the 2010 film, RiP! A Remix Manifesto, which Brett Gaylor directed. A paper's only worth writing if it pursues a real question (not if it just traces what you already think you know), so don't close the door on other possibilities before you get to work on the next stage of this process!

Kudos, too, for using the resources of the internet: beginning your essay w/ two sound tracks is a GREAT way to hook your readers on the questions you are posing.