April 26, 2017 Musicology, Opinion No Comments

Fight fire with fire, I suppose. We wrote a post about this action a few months ago, when we first heard that Messy Mya’s estate was suing Beyoncé for twenty million dollars over a little blurb she may or may not have used without permission to kick off her track “Formation.”
This video, which has 3 million hits on youtube, contains the “what happened at the new orleans” line that begins the recording and video of Formation, and that according to the plaintiffs is used along with other sampled bits throughout Beyoncé’s concerts.

(note: this video is not suitable for most situations. Once the gentleman says, “what happened at the n’awlins,” I suggest you just hit stop.)

The sample is in the track. That’s not being disputed. So why did Musicologize call the suit “stupid? Musicologize said the idea that the damages could ever be worth 20 million dollars was stupid. And so it remains.

But the idea that this is “fair use” seems at least as crazy if not crazier. “Fair use,” simply put, allows the use of copyrighted material without copyright holder’s permission. But, simply put, it’s a narrow standard, with four basic factors:

  • The Purpose and Character of the Use
  • The Nature of the Copyrighted Work
  • The Amount or Substantiality of the Portion Used
  • The Effect of the Use on the Potential Market for or Value of the Work

In general it’s gotta have checks in all those four columns. The use should be for the purpose of criticism, education, news reporting, or research; it shouldn’t too much of the thing; and it shouldn’t affect the market for the original thing.

There’s nothing transformative about playing Mya’s voice as the intro to your track. It wasn’t transformed in the least. She’s not commenting on his work, just using it and she’s making a commercial record, not for educational purposes. It doesn’t matter that she’s making a political or social statement, nor should it matter that her use has raised the awareness of his video.

I can’t be in the mind of Beyoncé or her producers, but it’s baffling to me that anyone might’ve taken a “let’s see if we get sued” approach, rather than the “let’s get permission in the first place” approach. But if one were to have taken that position, this is right where they might have anticipated finding themselves, claiming fair use as the first step toward an eventual but I’m guessing pretty much inevitable settlement.

Written by Brian McBrearty