Copyrights and their role in Creativity

By Charles Hwang

Reviewed by Jennifer Williams

The first time I heard Weird Al Yankovic, I was 13 years old. The song was ‘Amish Paradise.’ To this day it remains one of my favorite songs. I remember thinking to myself, “I’ve heard this song before.” In fact I was right. Weird Al had appropriated the melody to Coolio’s ‘Gangsta’s Paradise’ and changed the lyrics. I don’t know if Weird Al asked for Coolio’s permission, but the creativity of Weird Al’s work was stunning.

Weird Al didn’t invent the art of parody (anytime you took the melody of a song and changed the lyrics you were involved in the creation of a parody), but he certainly made it mainstream. Prior to Weird Al’s release of ‘Amish Paradise,’ the Supreme Court decided the landmark case of Campbell v. Acuff-Rose Music, Inc. (510 U.S. 569 [1994]) (see 2Live Crew’s ‘Pretty Woman’) where it decided that commercial parody can qualify as fair use. This ruling, in my opinion, has led to the principle that laws governing copyright can bend in order to foster greater creativity.

However, a statement by The British Recorded Music Industry’s (“BPI”) CEO Geoff Taylor argues that fair use actually hurts copyright and seems at odds with what copyright is all about. He further argues that licensing of copyrighted material will in fact further innovation and economic growth. This argument may hold water if economic growth is your only focus, but how does limiting avenues of creativity and limiting creative uses of the work of others further innovation?

Innovation and creative growth aren’t always born out of a single creative spark. Often innovation and creative growth is built upon the works of innovators and creators of the past. For example, one of most popular ways to increase creative output in the music industry is the remix. The remix essentially allows an artist to create a new song using the melody of an old song. The remix might contain the original lyrics with new lyrics or new artists on the song, or it might just contain a new musical feature layered over the original. This new song is only made possible because of the old work. Each and every time a song is remixed there is a new work made possible only through the doctrine of fair use.

Though copyright protection is an incentive to owners to register their works, its function isn’t to improve the monetization of their work. It seems that fair use strengthens copyright because it recognizes and fosters creativity. If you include an economic element to the analysis of fair use and it’s effect on copyright then Mr. Taylor is probably right. Unfortunately for him the dollar is not and should not be the compass that guides the shaping of matters of policy like this one.


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