The Brunch Table

Here’s another rundown on the Grey Album and its adventures in copyright law. Two things make it especially useful, though. First off, at the end of the article, they recap the four criteria that support a claim of fair use:

1. The new work is for a non-commercial purpose.
2. The new work doesn’t substitute for a purchase of the original work.
3. The new work tranforms the material that it borrows in some way.
4. The new work has a critical perspective on the old work.

(I recently read Clearance and Copyright, by Michael Donaldson; his opinion is that if a work meets enough of those criteria, the claim of fair use will–theoretically–hold up in court. He uses the metaphor of a “shield.” The more criteria that apply to you, the stronger your shield is. It’s especially important which state hears the case, he says–New York state has the country’s best track record of upholding valid fair use claims.)

But the real surprise in the article is this–due to a quirk in federal law, there is no federal copyright protection for sound recordings published prior to 1972! Only state laws protect their use, and the state laws at present are more lenient than the draconian 1976 federal revisions, the first of the Mickey Mouse laws.

So I guess the moral of the story is, if you must sample, use old stuff and do it in New York.