The ongoing battle over the Obama HOPE poster makes for a perfect lesson on what "fair use" is. And now Minority Whip Eric Cantor (R-VA) is getting a lesson on what "fair use" isn't: his chest-beating, stimulus-opposing, victory-proclaiming video set to the tune of Aerosmith's "Back in the Saddle."
Aerosmith didn't approve of the GOP using the song, and YouTube has already taken the video down. While that doesn't mean there was copyright infringement -- YouTube is just getting out of the way -- Cantor would have a very hard time pushing back.
Without delving too deeply into the "fair use" test, which I explain in more detail here, Cantor didn't physically change the song at all -- it's an exact copy. Not a cover, not a remix, not a sample; a copy. He could try to argue that his video transforms the song's "purpose," but by that logic anyone could take any song, completely intact, as long as they attached it to some visuals. Cantor might claim that the video transforms the song into political speech, and is therefore worthy of First Amendment protection. But that can't be right, because it would allow a politician to appropriate any piece of music or work of art just by claiming it as his or her "message."
So unlike Shepard Fairey's preemtive strike, don't expect Cantor to take this loser of a case any further. Then again, if you believe Cantor's video, House Republicans think losing together is the same thing as winning.
Jonathan Melber is an attorney and co-author, with Heather Darcy Bhandari, of ART/WORK: Everything You Need to Know (And Do) As You Pursue Your Art Career (Free Press), a professional-development guide for visual artists. He and Heather twitter here.