A Fair Use Defense in Grey Album and Biz Markie Cases
The motifs and melodies, as well as the rhythm of music and the beat in the “Grey Album,” were taken from Beatles’ songs. When someone hears a song from it, the first thing that draws attention is the distinct sound of the Beatles. It is difficult to say what is more important in the song, the lyrics, or the music, as both can be equally important and overwhelming of one another.
A definite fact is that the new artist used the absolutely same melody that another person came up with. Thus, it is no longer original. If it is used, it should only be with the permission of the Beatles. If they ask for a reasonable percentage/profits or allow the usage of their work free of charge, then it is fair use. But, if the artist who copied the famous melody which has become a part of the culture and millions of people know and like it, then it would be unfair for the new work to be a “gold mine” because the main melody was copied from someone else.
It is possible to assume that had the case with Biz Markie taken a different turn, a lot of modern hip-hop/ sampling genres would be filled with the work of previous artists. Even with Biz Markie being found guilty, there are songs that sound very much alike “oldies” or extremely similar to them, which in reality, limits human imagination. There is no denying that there are many beats and melodies that are created by hip-hop and rap artists who gain world fame, and they are 99 percent original. All music should, at least mostly, sound original and draw attention not because it sounds like something heard before but because it is pleasing to the ear due to its originality and uniqueness.