Originally published at: https://boingboing.net/2024/07/18/beastie-boys-sue-chilis.html
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Thom, you should know better. Sabotage is on Ill Communication (1994), not License to Ill (1986).
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Came here for this.
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You’re right, I should know better, and I have no excuse other than being sloppy for the sake of a terrible pun.
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Just rewatch Sabotage and make your day better
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I’m going to use a quote from your first link to explain a common misconception about fair use:
One might expect samplers to argue fair use. After all, sampling seems like just the type of transformative quotation that fair use is designed for. That issue has never been successfully litigated, however, according to McLeod.
The thing is, sampling bits of music to use in other music is decidedly not transformative. Transformative, in terms of fair use, doesn’t mean changed or altered. Well…it does, but it a specific way. The transformative analysis part of fair use is under one of four factors used in determining whether fair use applies. That factor is “the purpose and character” of the infringing use. So when they say it has to be transformative, they mean that “the purpose and character” of the infringing use has to be transformative, or different. Using a clip of a movie in a critique of that movie is the classic example. The purpose and character of the movie is, to oversimplify, to entertain audiences and to make money for the producers of the movie. If a movie reviewer includes a clip of that movie in a review of that movie, the purpose and character has now changed. It’s not not meant to entertain, but to criticize and inform. The purpose and character of the infringing clip has been transformed. When someone samples a bit of music to use in making more music, the purpose and character hasn’t changed at all. Or not much, anyway. You’re still making music to be enjoyed by the general public, and presumably to make money. There has been no transformative use.
Now…Chili’s could argue that their use is transformative. They’re using the music to sell food. That’s pretty clearly transformative. Of course, Chili’s would fail on two of the other factors, so it’s still not fair use, but their use is transformative.
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Sometimes copyright law gives me headaches. It is something that scares me a lot!
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Copyright law is a PITA. The other problem with fair use is that it’s a defense to a claim of copyright infringement. In other words, if someone sues you, it’s a defense you can use in court. It’s not something you can claim or declare ahead of time to avoid a lawsuit. It’s not a status you can apply for. The only time you ever know for certain if your use is fair use is if someone sues you, you use the fair use defense, and the court and/or jury finds in your favor. So in practical terms, it’s not all that helpful. Most people would prefer to avoid a lawsuit.
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Surely it is the case that a sample used in a completely different, new song is transformative?
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No. Because the purpose and character of the use is the same. It’s still a song. It’s still a piece of music.
Now…there is one way in which it would be different, and that is if the infringing music is a parody or satire. But in that case, the purpose and character is different: it’s now satire or parody, not just musical entertainment.
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A piece of death metal sampled into a lullaby? Seems pretty transformative to me, but if the law says otherwise…
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You could try to argue that, but that gets to the other point I made. You’d have to convince a judge or jury that that’s transformative. And so far, as it said in that article, courts haven’t been inclined to find that sufficiently transformative. The genre of music may be different, but it’s still music. Even with my satire/parody example, it’s not 100% certain. That’s why Weird Al gets permission, even though he doesn’t strictly speaking have to. And he’s not even sampling anything. His use is clearly within the limits of fair use, but he still won’t do a song without permission.
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It’s one of their best song and a great video.
I do want to see the Chili’s ad just to say I did.
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Ah, reminds me of the last time I walked into a Chili’s back in the day.
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