In the case of "I Got a Woman," it is now about fifty years since the song's release--the same length of time as between Thompson's hymn and Charles's alleged "rewording." If the words and music were properly copyrighted at the time of its publication, and renewed when appropriate, the copyright still has forty-five years to run. No one will be able to "reword" "I Got a Woman" and use it to found a new genre, or take substantial portions of its melody, until the year 2050. The freedoms Ray Charles says he used to create his song are denied to his successors until nearly a century after the song's release. (As we will see in a moment, this put certain constraints on Kanye West.) 41
Would it truly be a violation of copyright for me to quote the middle stanza in a nonfiction book on copyright policy? Not at all. It is a classic "fair use." In a moment I will do so. But it is something that the publisher may well fuss over, because copyright holders are extremely aggressive in asking for payments for the slightest little segment. Copyright holders in music and song lyrics are among the most aggressive of the lot. Year after year academics, critics, and historians pay fairly substantial fees (by our standards) to license tiny fragments of songs even though their incorporation is almost certainly fair use. Many of them do not know the law. Others do, but want to avoid the hassle, the threats, the nasty letters. It is simpler just to pay. 42
Unfortunately, these individual actions have a collective impact. One of the factors used to consider whether something is a fair use is whether or not there is a market for this particular use of a work. If there is, it is less likely to be a fair use to quote or incorporate such a fragment. As several courts have pointed out, there is a powerful element of circularity here. You claim you have a right to stop me from doing x--quoting two lines of your three-verse song in an academic book, say. I say you have no such right and it is a fair use. You say it is not a fair use because it interferes with your market--the market for selling licenses for two- sentence fragments. But when do you have such a market? When you have a right to stop me quoting the two-sentence fragment unless I pay you. Do you have such a right? But that is exactly what we are trying to decide! Is it a fair use or not? The existence of the market depends on it not being a fair use for me to quote it without permission. To say "I would have a market if I could stop you doing it, so it cannot be a fair use, so I can stop you" is perfectly circular. 43