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Leaving the Best of Artists and Authors Helpless, Lin Manuel-Miranda's Hamilton Illustrates How the Fair Use Test Is Too Gray, 20 Chi.-Kent J Chicago-Kent Journal of Intellectual Property Volume 20 Issue 2 Article 2 8-26-2021 Leaving the Best of Artists and Authors Helpless, Lin Manuel- Miranda's Hamilton Illustrates How the Fair Use Test Is Too Gray Lauren M. Hausman Follow this and additional works at: https://scholarship.kentlaw.iit.edu/ckjip Part of the Intellectual Property Law Commons Recommended Citation Lauren M. Hausman, Leaving the Best of Artists and Authors Helpless, Lin Manuel-Miranda's Hamilton Illustrates How the Fair Use Test Is Too Gray, 20 Chi.-Kent J. Intell. Prop. 270 (). Available at: https://scholarship.kentlaw.iit.edu/ckjip/vol20/iss2/2 This Article is brought to you for free and open access by Scholarly Commons @ IIT Chicago-Kent College of Law. It has been accepted for inclusion in Chicago-Kent Journal of Intellectual Property by an authorized editor of Scholarly Commons @ IIT Chicago-Kent College of Law. For more information, please contact [email protected], [email protected]. Leaving the Best of Artists and Authors Helpless, Lin Manuel-Miranda’s Hamilton Illustrates How the Fair Use Test Is Too Gray BY LAUREN M. HAUSMAN * * Lauren M. Hausman is a Juris Doctor Candidate at The Elon University School of Law (Dec. 2021). She received her Master of International Business from the University of Florida. She also received her Bachelor of Science in Business Administration, Management from the University of Florida. She expresses her most sincere gratitude to and thanks Professor David S. Levine, Elon University School of Law, who without his guidance and support this article would not have been possible. 270 2021 LEAVING THE BEST OF ARTISTS AND AUTHORS HELPLESS 271 TABLE OF CONTENTS INTRODUCTION .......................................................................................... 272 I.FAIR USE OVERVIEW ............................................................................... 273 A. The Fair Use Factors................................................................ 273 1. Warner Bros. Entm’t, Inc. v. RDR Books, 575 F. Supp. 2d 513 (S.D.N.Y. 2008) .......................................................... 275 2. Campbell v. Acuff- Rose Music, 510 U.S. 569 (1994)...... 276 3. Analysis of Cases ............................................................... 277 II.LICENSING OVERVIEW ........................................................................... 278 III.HAMILTON THE MUSICAL: WAS LICENSING NECESSARY OR WOULD FAIR USE BE ENOUGH? ............................................................................ 279 A. Fair Use Factor Analysis ......................................................... 282 1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes .......................................................... 283 2. The nature of the copyrighted work ................................... 284 3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole ................................... 284 4. The effect of the use upon the potential market for or value of the copyrighted work ..................................................... 284 B. Uncopyrightable Works ........................................................... 285 1. Public Domain ................................................................... 285 2. Generic or Non-Creative Work ............................................... 286 IV.FAIR USE IN TRADEMARK LAW ............................................................ 287 V.FAIR USE AND THE UTILITARIAN THEORY ............................................ 289 VI.IMPLICATIONS & SUGGESTIONS ........................................................... 291 272 CHI.-KENT J. INTELL. PROP. Vol. 20:2 INTRODUCTION Fair use has permeated our legal system since the nineteenth century.1 Congress codified the judge-created doctrine in the 1976 Copyright Act. 2 Fair use focuses on fostering creativity and expression.3 However, “[f]or all its acknowledged importance, . ., the fair use doctrine is difficult – some say impossible – to define.” 4 Fair use is determined through the application of a four factor test that courts apply in a copyright infringement case where fair use has been asserted as a defense.5 Warner Bros. Entm’t, Inc. v. RDR Books 6 and Campbell v. Acuff-Rose Music 7 illustrate how uncertain the fair use test is, as the cases have opposite holdings, where one court found fair use and the other did not. A copyright owner has the right to license their copyright protected work. 8 An artist essentially has two options when using copyright protected works: to license or not. Fair use can protect an artist or author in a copyright infringement suit where they did not license the copyright protected work.9 However, the fair use test is too gray to allow an artist or author to know when they will find a safe harbor in fair use. This paper discusses fair use and the utilitarian theory. The utilitarian question in copyright is “what is a fair return for authors? And when does control over subsequent use harm creativity, technological progress, or freedom of expression?” 10 Providing a fair return for authors, while promoting creativity is embedded in the issue of whether an artist will be protected under fair use, or if there is a need to license the copied work. In the first act of Lin Manuel Miranda’s Hamilton the Musical (Hamilton), Aaron Burr, originally portrayed by Leslie Odom Jr., sings “Wait for It.”11 Aaron Burr sings, “I am inimitable I am an original.”12 1. U.S. Copyright Office Fair Use Index, copyright.gov, https://www.copyright.gov/fls/fl102.html (last updated Dec. 2016). 2. Id. 3. More Information on Fair Use, copyright.gov, https://www.copyright.gov/fair-use/more- info.html (last updated Oct. 2020). 4. Matthew Sag, The Prehistory of Fair Use, 76 BROOK. L. REV. 1371, 1371 (2011) (referencing Paul Goldstein, Fair Use in Context, 31 COLUM. J.L. & ARTS 433 (2008)). 5. More Information on Fair Use, supra note 3. 6. Warner Bros. Entm’t, Inc. v. RDR Books, 575 F. Supp. 2d 513 (S.D.N.Y. 2008) (holding that RDR Books’ infringement was not fair use). 7. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994) (holding that 2 Live Crew’s parody was fair use). 8. 17 U.S.C. § 106(3) (2018). 9. More Information on Fair Use, supra note 3. 10. Id. 11. Leslie Odom Jr., Wait for It, in HAMILTON THE MUSICAL (2015). 12. Id. 2021 LEAVING THE BEST OF ARTISTS AND AUTHORS HELPLESS 273 Inimitable is an adjective used to describe a unique, uncopiable thing.13 Miranda specifically chose the word “inimitable,” 14 yet he chose to license the works he drew his inspiration from. His choice to license leads to a few questions: Was Miranda’s work really original? Was the music in Hamilton transformative enough that Miranda could have chosen not to license the musical compositions and lyrics he sampled? Would he have been protected under the fair use doctrine? This paper explores whether the fair use doctrine is too gray, and if there is a need for a better test to allow an artist or author to determine whether their work is transformative enough to permit the unlicensed use of copyright protected work. I. FAIR USE OVERVIEW A. The Fair Use Factors Fair use is a legal doctrine that permits “the unlicensed use of copyright-protected works in certain circumstances.” 15 To determine if the unlicensed use of a copyright protected work is permissible under the fair use doctrine, a court will consider four factors: 16 Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work . is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include— (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.17 3 1 . Inimitable, MERRIAM-WEBSTER, https://www.merriam-webster.com/dictionary/inimitable (last visited Oct. 4, 2020). 14. Id. 15. More Information on Fair Use, supra note 3. 16. Id. 17. 17 U.S.C. § 107 (2018); see also 17 U.S.C. § 106 (2018) (“Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies or phonorecords of the copyrighted 274 CHI.-KENT J. INTELL. PROP. Vol. 20:2 Fair use is an affirmative defense a defendant may assert in a copyright infringement claim. 18 A fair use claim before the court is determined on a “case-by-case basis”19 and the outcome is dependent upon “fact-specific inquiry.” 20 Due to each claim being fact-specific, “there is no formula to ensure that a predetermined percentage or amount of a work—or specific number of words, lines, pages, copies—may be used without permission.”21 When the Copyright Act of 1976 was drafted, the fair use doctrine was explicitly noted to serve “only as a guideline.”22 The drafters were broad in the explanation of fair use, leaving the discretion
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