IV. factors one, two and three of fair use
(1) The purpose and character of the use.
American commentary regarding the purpose of use tends to dwell upon the language of “tranformative”. Entering fair use dialogue in 1994 via the Supreme Court decision Campbell v. Acuff-Rose, Inc., “transformative” was defined as “altering the original with new expression, meaning, or message.” The scope of the definition has grown; now one may also probe whether the copy “served a different function from the original.”
But the situation at hand does not lend itself to a claim of transformative. The use of the copy was for the same function as the original: the enjoyment of listening to the music. AL (despite being a budding filmmaker) did not have any pretensions to greater utility or message when she chose to include music with her conversation.
Fortunately, the lack of a transformative quality does not diminish the fairness of the purpose of this use. To engage in play is worthy of protection under fair use. If adults are to properly utilize the system of copyright to achieve its Constitutional imperative of “promoting the progress of science and the useful arts,” as detailed in Part III (of play and progress), it is vital to foster the spirit of play in our youth.
Thus, play is a suitable purpose and, in this instance, was undertaken with noncommercial motives.
(2) The nature of the copyrighted work.
Conventional wisdom has been that the more creative the copied work, the more this factor will not favour fair use. Returning again to Campbell (1994) the Supreme Court stated, “this factor calls for recognition that some works are closer to the core of intended copyright protection than others, with the consequence that fair use is more difficult to establish when the former works are copied.” Yet, in that same case, where the Court was evaluating a parodic-creative work, against its input-creative work, the Court also stated that the question of “nature” was of little help and declined to pronounce any assessment for this factor: “This fact, however, is not much help in this case, or ever likely to help much in separating the fair use sheep from the infringing goats in a parody case, since parodies almost invariably copy publicly known, expressive works.”
Subsequently, various Appeals’ courts have emphasized that this factor neither assists with, nor detracts from, an argument of fair use. The same should be said in this situation of play.
(3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
It is taken as a matter of logic that the less one copies, the more likely the copying will be assessed as fair. Would-be fair users are instructed to examine the copied work from both a qualitative and quantitative perspective. Dire warnings are cast about taking the heart of a work, that one should avoid replicating the most distinctive aspects of a work. Yet for the use employed here, incorporating a recognizable song is the purpose, much like in the instance of parody as established in Campbell.
The recording industry goes to great lengths to penetrate individual consciousness with lyrics and music (the goal being to embed a desire for purchases of singles, albums, and concert tickets). But when cultural artifacts penetrate lives, those artifacts will show themselves in the personality of those lives. Sometimes the display is purely passive; for instance, the act of listening to music. But for others, the creative among us, passivity eventually gives rise to new production.
Replication and imitation are the foundations upon which future creativity is built. Judge Richard Posner of the United States Court of Appeals for the Seventh Circuit makes this point forcefully:
The pervasiveness of borrowing in literature is captured in Northrop Frye’s dictum that “poetry can only be made out of other poems; novels out of other novels.” Frye had some tart words about copyright. He notes the challenge to the assumptions underlying the copyright law posed by “a literature which includes Chaucer, much of whose poetry is translated or paraphrased from others, Shakespeare, whose plays sometimes follow their sources almost verbatim; and Milton, who asked for nothing better than to steal as much as possible out of the Bible.”
The instinct to replicate and imitate needs to be nurtured early in life if those individuals are to become creative adults.
For the purposes of a conventional four-factor analysis of AL’s situation, the quantitative/qualitative aspects illustrate a minimal taking of Wildest Dreams. Only 36 seconds of the song were copied, and of that only 17 seconds were clearly audible. Of those 17 seconds, the first 12 seconds were purely instrumental. In the remaining five seconds of clarity, a listener would have heard the following lyrics: “He said let’s get out of this town – Drive out of the city.”
At best, those lyrics would be described as one complete sentence and one sentence fragment. The audible quantity of music and lyrics represent a negligible portion of the song and thus ought to be considered fair. And even if one must consider the entire 36 seconds, such a snippet should comfortably be considered fair in light of both the purpose of play (above) and consideration of the effect upon the market as per the fourth statutory factor, to be covered in tomorrow’s concluding installment.
Canadian readers may be relieved to know that our courts acknowledge that evaluation of quantity should be considered in light of the prevailing purpose and the work under consideration. For instance, it is implausible that using a partial quantity of an image would serve any purpose; one either takes all of it or none of it. Copying an entire work for parody or private study may be reasonable, given the nature of the use. Whereas copying an entire work for the purpose of published criticism, may not be appropriate. Our Supreme Court has emphasized many, many times that an evaluation of fair dealing (or other exceptions) is always a contextual investigation. Of course, “play” in Canada is well protected by a number of avenues; see Part I.
 In the wake of the Ninth Circuit’s instruction to copyright owners to consider fair use before issuing a takedown notice, Jeff Roberts writes: “ … for practical purposes, the deciding factors are usually whether the new work is transformative and if it will impact the market for the original work.” See “Mom wins huge fair use ruling in Prince “dancing baby” case,” Fortune, 24 September 2015. More recently, see Emily Hong argues that a comparative creation of hers is “transformative and doesn’t necessarily offer a substitutable good.” See “What Beyoncé and Justin Bieber taught me about fair use,” Slate, 25 January 2016. (For any Canadians reading this, our Supreme Court has never required transformative use; see Meera Nair, “no surprise“.)
 See note 2 above.
 For instance, Author’s Guild v. Hathi Trust (2nd Circuit 2013); Sony Computer Entertainment America, Inc., vs. BLEEM LLC, (9th Circuit 2000); and Triangle Publications, Inc. vs. Knight-Rider Newspapers, Inc. (5th Circuit 1980).
 Northrop Frye, Anatomy of Criticism: Four Essays (Princeton: Princeton University Press, 1957) at 95-104, quoted by William M. Landes & Richard A. Posner, The Economic Structure of Intellectual Property Law (Cambridge: Belknap Press, 2003) at 59-60.
 Wildest Dreams is available for viewing and listening at vevo.com, and the lyrics are available from metrolyrics.com.