The doctrine of “fair use” places modern users of technology and culture between two pulls, a “participatory, collaborative culture” and “the culture of fear and doubt” (Aufderheide and Jaszi 5,7). Many are afraid to work with copyrighted material because they are unsure whether their work will fall into the vague language of the fair use doctrine. According to Aufderheide and Jaszi’s book Reclaiming Fair Use, “knowledge unlocks the door to action, which lets you join the culture of creativity” (5). It is important to be knowledgeable about the fair use doctrine if one expects to claim it for their work. Apparently, Frans Peter Bull Enger, better known as Norwegian Recycling, a famous mash up artist, is well versed in the nuances of fair use: his popular YouTube video “How Six Songs Colilde” has been left on YouTube, untouched by takedown notices, for five years. When evaluating Enger’s video using the “four factors,” as they are often called, one can see why Enger’s video falls squarely within the fair use category.
First, we examine the “transformativeness” or character of Norwegian Recycling’s video, “the most critical element of the fair-use analysis” (Aufderheide and Jaszi 83). This criteria means the new remixed version of the work must be inherently different than the original. What Norwegian Recycling did to transform his work was take audio and visual components of six different music videos and blend them into one seamless mash up. The need for “transformativeness” in a remixed piece is what makes the new work unique, and also different enough from the original to ensure it will not “affect the market because they serve the same purpose as Plaintiffs’ original works” (Aufderheide and Jaszi 87). In the case of “How Six Songs Collide,” another factor of fair use, the market value of the original musician’s work remains unaffected by Norwegian Recycling’s video. Norwegian Recycling has his three full albums available for free download on his website, along with a “donate” button, which appears to be the only place he is accepting money. However, the donations he may receive from his large fan following are not taking revenues from the artists whose work he remixes. In fact, Norwegian Recycling has arguably created an entirely new song by borrowing sound and video clips. Therefore, users still need to purchase these individual songs from the original artists if they want original work. Enger has also considered amount, the third factor, and only takes anywhere form thirty seconds to two minutes, divided out among a five-minute video of each song with which he works. This does not rip off the original artists’ work nor does it compromise the integrity of their work. The fourth factor, which involves taking into account the nature of the original work, is considered to make sure the remixed work does not serve the same purpose as the original. While both the originals and Enger’s video are for entertainment purposes, Enger lacks the ambitions to make money, go on tour, and further his career the way the original artists do. These differing influences behind music-making create a necessary divide in the nature of the original works and Enger’s work.
While it appears Norwegian Recycling has effectively used fair use as “a crucial safety valve in the copyright system,” the fair use doctrine remains vague and is subject to interpretation on a case-by-case basis (Aufderheide and Jaszi 80). Some may argue that Enger used the central part of the songs, a clear focus on the beginnings and choruses of every song he mashed together to show “How Six Songs Collide.” These are often the parts of songs that get stuck in peoples’ heads and can be used as identifiers for those particular songs. However, this argument alone would most likely not support a takedown notice for Norwegian Recycling. Fair use is one of those grey areas where one only needs to be able to articulate why they are more “in” than “out” to be safe from litigation.
Aufderheide, Patricia, and Peter Jaszi. Reclaiming Fair Use. London: The University of Chicago Press, 2011. 1-33, 70-93. Print.
Enger, Frans Peter Bull, prod. How Six Songs Collide. 2007. Web. 26 Sep 2012. <http://www.youtube.com/watch?v=3JKKl95Ttrc>.
Enger, Frans Peter Bull. 2012. Norwegian Recycling. 26 September 2012 <Norwegianrecycling.net>.