Can I make an intermediate copy of an entire work for the purpose of enabling me to criticize it?

Question

A recent question asked about the practice of transcribing music for hire.

Say I would like to publish a critical analysis of a song. In the process of preparing this analysis I need to actually analyze the song.

That is is going to be much easier if I have a version of it on paper to look at, so I can see the underlying structure and compare different time points against each other. It might even be impractical to do the critical analysis I want to do without a transcript of the entire song; visually overlaying different parts throughout the work to find and then discuss correspondences might be my entire schtick.

If I restrict what I publish to a normal number of small excerpts, am I allowed to transcribe an entire song (or hire someone else to do so) in order to prepare a fair-use-protected work of commentary or criticism that could not otherwise be acccomplished?

I'm looking for someone to apply the fair use factors from this answer to this sort of situation, where the use in question is during the preparation of a work. More use might be reasonable than in the final published product, but how much more?

Answer 1

I will answer your question at a more general level, in the hopes that it can apply to many more future questions.

You are asking whether an intermediate copy can be fair use where the publication of that intermediate copy itself would likely not be fair use.

Courts have found such intermediate copies to be fair use. As always, this is a case-by-case analysis, but in Sega v. Accolade, 977 F.2d 1510 (9th Cir. 1992), the Ninth Circuit held that it was a fair use to fully copy and disassemble the object code as an intermediate step in developing other games compatible with the Sega system. That was full copying of a game's object code, even in order to produce a competing product. The court still held that it was fair use.

Some points of emphasis that you might apply in the hypothetical in your question:

To over-simplify, the record establishes that Accolade, a commercial competitor of Sega, engaged in wholesale copying of Sega's copyrighted code as a preliminary step in the development of a competing product.

The fact that an entire work was copied does not, however, preclude a finding a fair use. ... In fact, where the ultimate (as opposed to direct) use is as limited as it was here, the factor is of very little weight.

I hope that can fill the gap so that you feel better suited to apply the fair use analysis to the situation in your hypothetical.

Answer 2

The case Sega v. Accolade, 977 F.2d 1510 is relevant but is not entirely parallel to your hypothetical. The section in intermediate copying cites Walker v. University Books, 602 F.2d 859, which stated that

[T]he fact that an allegedly infringing copy of a protected work may itself be only an inchoate representation of some final product to be marketed commercially does not in itself negate the possibility of infringement

Defendants Accolade cite myriad cases which "establish the lawfulness of intermediate copying. Most of the cases involved the alleged copying of books, scripts, or literary characters". What weakens the power of Accolades citations is that "the eventual lawsuit alleged infringement only as to the final work of the defendants", therefore the position in Walker is not invalidated. There are other cases, more similar to Accolade, which "involved intermediate copying of computer code as an initial step in the development of a competing product", and it turns out that "in none of them was the legality of the intermediate copying at issue". Sega then cites "an equal number of cases involving intermediate copying of copyrighted computer code to support its assertion that such copying is prohibited", but again "the lawfulness of intermediate copying was not raised in any of those cases". So the court declines to overturn Walker. The court lays the ground for a fair use defense based on unique properties of computer code (you can't read and make sense of it). Furthermore, § 117 of the copyright act has special provisions applicable to copying of computer programs, which do not apply to songs.

The court does however conclude that

Where there is good reason for studying or examining the unprotected aspects of a copyrighted computer program, disassembly for purposes of such study or examination constitutes a fair use.

You should therefore not leap to any strong conclusions about whole-work copying as an intermediate step to fair use of a song.

Assume that you have a legal recording of Arghane Manine and want to comment on the structure of the lyrics. You probably have to transcribe them yourself, creating a derivative work. I assume that the portion of the lyrics actually published (a half-dozen words) is within the scope of fair use, the question is what would whole copying as a step towards fair use change. The court would have to engage in minute scrutiny of all of the factors. The difference between your published work and the intermediate copy resides in the third factor, "amount and substantiality". The bulk of the expressive content and value is the audio component, so it is unlikely that the court would find your intermediate copy to have engaged in "substantial copying" by writing down the words. The other factors strongly favor a fair use defense.