Three little words make a fair use

Oyewole v. Ora, 291 F.Supp.3d 422 (S.D.N.Y. 2018)
This case grants a motion to dismiss on fair use grounds,
though it should have been on lack of substantial similarity in protected
Oyewole is a founding member of the spoken-word group The
Last Poets who created the song “When the Revolution Comes” in 1968. The song
warns of a coming revolution when “guns and rifles will be taking the place of
poems and essays,” with a back track of a drum beat and chants. Also: “When the
revolution comes/ Transit cops will be crushed by the trains after losing their
guns and blood will run through the streets of Harlem drowning anything without
substance.” At the end of the song, the performers chant, “When the revolution
comes (3x)/But until then you know and I know n*****s will party and bullshit
and party and bullshit and party and bullshit and party and bullshit and
party… Some might even die before the revolution comes” (ellipsis in
original). Oyewole indicated that the “sole purpose” of the lyrics is to
“challenge[ ] and encourage[ ] people to NOT waste time with ‘party and
bullshit,’ but to move towards success.”
In 1993, The Notorious B.I.G. released the song “Party and
Bullshit” celebrating his “hip hop lifestyle.” It begins: “I was a terror since
the public school era / Bathroom passes, cuttin’ classes, squeezing asses / …”
The chorus is: “Dumbing out, just me and my crew / Cause all we want to do
is… / Party… and bullshit, and… (9x)” (ellipses in original). In 2012,
Rita Ora released the pop song “How We Do (Party),” which begins, “And party
and bullshit / And party and bullshit / And party and bullshit / And party, and
party.” Further lyrics include “I get that drunk sex feeling/Yeah, when I’m
with you/So put your arms around me, baby/We’re tearing up the town/‘Cause
that’s just how we do.”  The opening
lines recur several times throughout the song. 
Oyewole alleged that the uses here “contrravened” the original purpose of
the phrase as used in “When the Revolution Comes,” which was to discourage
people from partaking in “party and bullshit.”
Understandably, the defendants maintained that “party and bullshit”
was not protectable, but, following a pattern I find somewhat depressing, the
court assumed otherwise and instead resolved the infringement issue as a matter
of fair use.  Both songs transformed the
purpose of the phrase “party and bullshit” “from one of condemnation to one of
glorification,” … “in neither secondary work does it evince criticism or
foreboding.” The Poets suggest that, as a result of the partying and bullshit,
“[s]ome might even die before the revolution comes.” The phrase is “an
expression of disgust and disappointment in those who are not readying
themselves for the revolution.”  Not so
for the accused songs, which embrace and exalt “party and bullshit” culture.
Even the complaint recognized this by accusing the songs of contradicting Oyewole’s
original purpose, which was to “encourage[e] people to NOT waste time with ‘party
and bullshit.’ ”
Nature of the work: creative, which weighs against fair use,
also published, which favors fair use.
Amount and substantiality of the portion used: one phrase. As
for substantiality, “although the background track’s cutting out when the Last
Poets chant ‘party and bullshit’ adds a level of gravity and importance to the
phrase, the expression is not critically important to the song’s message.
Instead, the song focuses on the upcoming revolution.”  [This seems like a pretty good reading, by
the way; I just think it’s detrimental to the robust analysis of copyrightability/substantial
similarity to do this as a matter of fair use.]
Market effect: transformativeness made market effect
unlikely. Given the character and purpose from the original work, the target
audiences were unlikely to be the same, and even if they were, the songs wouldn’t
substitute for the original. [Note no explicit consideration of derivative
markets, implicitly encompassed in the transformativeness discussion.]

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