Robin had an idea for a post about “Fair Use” in the copyright law. There are many ways that people do not want to pay for the music that we create and this is one of them. Some of the fair use exceptions make sense but the definition gets stretched beyond it’s original intent. I do take exception to “news reporting”. It’s a for profit activity so how do they get a free pass?
Here’s an extreme example: A YouTube video of some idiot an ill-informed individual trying to use “Fair Use” to get around copyright infringement claims from the YouTube Content ID program.
I do realize it’s a very complex issue with no easy answers and I’m sure most of us have benefited from Fair Use in many ways. Just wondering about your thoughts on the subject.
Here’s more information on Fair Use from Wikipedia:
Fair use is a limitation and exception to the exclusive right granted by copyright law to the author of a creative work. In United States copyright law, fair use is a doctrine that permits limited use of copyrighted material without acquiring permission from the rights holders. Examples of fair use include commentary, criticism, news reporting, research, teaching, library archiving and scholarship. It provides for the legal, unlicensed citation or incorporation of copyrighted material in another author’s work under a four-factor balancing test. The term fair use originated in the United States. A similar principle, fair dealing, exists in some other common law jurisdictions. Civil law jurisdictions have other limitations and exceptions to copyright.
Contents
[hide]
- 1 Fair use under United States law
- 2 Practical effect of fair use defense
- 3 Fair use as a defense
- 4 The economic benefit of fair use
- 5 Fair use and parody
- 6 Fair use on the Internet
- 7 Common misunderstandings
- 8 Influence internationally
- 9 See also
- 10 References
- 11 Further reading
- 12 External links
Thank you guys for the kind words.
Law, like music, is filled with subtle distinctions. Some composers can hear the difference between good and bad samples and some simply cannot. Sometimes it’s a matter of how you use the sample, for example how you use controllers, that make the difference. It’s the same in law. Cases turn on the perception of subtle differences. It’s not all black and white.
In the US, legislators create law….they write it. The courts and judges interpret it. Very few laws are not subject to interpretation — and those are mostly regulations — like speed limits. If the sign says the speed limit is 35 mph or KPH, that’s what it means. There’s no debate.
When you get into areas, like copyright law, it’s a lot more fluid, and subject to interpretation. For example, I mentioned
soundalikes above. When is a soundalike OK? The courts have ruled that parody falls under the the Fair Use exceptions. But the issue becomes, what qualifies as a parody?
About 15 years ago a library asked me to do a CD of movie theme knock-offs. I was really hesitant, but the library owner said it was OK, “they are parodies.” I didn’t know it at the time, but he was wrong.
One of the famous cases that dealt with this issue was Campbell v. Acuff-Rose Music. In that case, 2 Live Crew was sued for its parody of Roy Orbison’s “Pretty Woman.” The US Supreme court found in favor of 2Live Crew. In doing so, the court found that 2Live Crew’s version of Pretty Woman “commented” upon and “criticized” the original. 2Live Crew made a social statement about the original that was “transformative.”
When we, as library composers, do soundalikes, it would be very difficult, in my opinion, to convince a court that we are commenting upon or criticizing the original work in a transformative way — that benefits society.
What Weird Al does is parody, even though he is not criticizing or commenting on the original work. He does change the lyrics of the original work for the purpose of social commentary. To my knowledge Weird Al get’s permission from the artists whose songs he parodies. (2Live Crew sought permission, but Acuff-Rose refused).
The classic answer to any legal question is “it depends.”
Cheers,
Michael
Fair Use, under US law is a complicated doctrine that cannot be summed up in as simple a manner as the producer of the video has attempted. It is by no means a “slam dunk” defense to copyright infringement.
In the context of the type of youtube video to which the video’s producer refers we are talking about violating the copyright owner’s right to control public performances of their work. Taking someone’s song and using it as background music for a youtube video, or in a film, etc., without the copyright owner’s permission is a violation of their right to control the public performance of that song. Fair Use is a possible exception or “defense” to that law.
There are, as the video states, four factors that courts look at to determine fair use:
1) The purpose and character of the use; 2) the nature of the copyrighted work; 3) the substantiality of the portion used in relation to the copyrighted work as a whole; 4) the effect on the market for the copyrighted work.
In each instance of alleged infringement courts will apply all four factors to determine if there is Fair Use.
1)What is the purpose and character of the use? Is the primary purpose to make money? In other words is it commercial, or is it for non-profit EDUCATIONAL purposes. The producer of the video, left out the “educational” component of the “test” and assumes, incorrectly that just because he’s not making any money from his video it is Fair Use. Even the word “educational” is subject to definition. A corporate video about high blood pressure might be considered educational. But, if its underlying purpose is to sell you medication, is it really?
2) The nature and character of the work. News is generally considered information or facts that cannot be copyrighted. BUT, how you present those facts may be. We all know a certain number of facts surrounding the death John F. Kennedy. You cannot copyright the information that he was shot in Dallas TX, on November 22, 1963. That is a fact. But, if you comment upon, or interpret those facts, as Oliver Stone did in “JFK” that is copyrightable.
3) The substantiality of the portion does not mean simply how much was used, but also how important was the portion used. In Harper v. Nation, The Nation published only a few hundred words out of about 500,000, but the court held that they were really the heart of Gerald Ford’s biography, dealing with the Nixon pardon. In the context of what library composers do copying just two notes from John Williams score to Jaws, would arguably be sufficient to fund infringement, because of the importance — the substantiality, of those two notes.
4) The effect on the market refers to the impact that the infringing work has on the potential market for or value of the copyrighted work. Does the alleged infringer’s use of the work harm the market or value of the original? There are many other factors here like derivative works..too many to discuss.
Art raised the issue of the news reporting exception. That does not mean the someone can use a piece of your library music, claim that it’s being used in a news story and is therefore Fair Use. That is a misinterpretation of the doctrine. My interpretation is that the copyrighted work itself needs to be an integral part of the news story. For example, a news program or documentary film maker does a story on violent lyrics in rap and uses examples of music from famous rap artists in their program. That is the new reporting exception because the music IS the story.
Sadly, think of how many times we’ve heard “I Will Always Love You” played this week following Whitney Houston’s death. Does Dolly Parton have a case for infringement if they didn’t ask her permission? Does the news exception apply? Arguably the song was part of the story, but it wasn’t THE story. You could apply the four part test. What about number 4…the effect on the market for the? It is one of the most downloaded songs on itunes this week.
The point of this lengthy post is that the Fair Use Doctrine is far more complicated than the producer of the video, is apparently aware. AND we are swinging a double-edged sword. Library music by nature is a commercial endeavor. The end use may fall within an exception, but we do not know that when we put music into the market place. So, while we are concerned that people may use our music without paying for it, we need to be mindful of what we are doing when we create “soundalikes” and the reality of why people buy soundalikes. Isn’t it because they don’t want to pay for the original? Food for thought.
Cheers,
Michael
PS:
I would have a very difficult time conceiving of a situation in which someone could legitimately use a piece of library music without compensation under the Fair Use Doctrine, unless they were doing a story ABOUT library music. Even then, I would argue that the use would have to be very specific, like a story about “Art Munson: Session Guitarist Turned Library Writer,” and the music was used as examples Art’s work.
Michael
PSS:
With respect to the video producer’s suggestion that youtube posters who receive copyright notices could and/or should sue WMG for “emotional distress and damages…DON’T try this one at home kids.
Intentional Infliction of Emotional distress has four elements 1) the defendant must act intentionally or recklessly; 2) the defendant’s conduct must be EXTREME AND OUTRAGEOUS* (emphasis added); 3) the conduct must be the cause of SEVERE (emphasis added) distress. (were talking in need of medical treatment with physical symptoms).
Negligent infliction of emotional distress is as whole different ball of wax — like when a loved one is seriously injured or killed in front of you.
Either way there is very little, like zero, basis for any such claim against WMG.
The young man’s “advice” will result in more harm than good for anyone who takes
it seriously.
OK. I’m done. Just had to dust off the legal brain. Over that now…ahhh 🙂
Michael
* taking down a video is NOT extreme and outrageous.
Wow Michael, great stuff. I always learn so much from you! I can’t thank you enough for your generosity and willingness to share. You have my deepest gratitude!
Brilliant stuff Michael
Yes, very informative, thank you.
Ditto
Not the brightest chap that. I love quote about Warner music ” I am not even sure what they are”. It sorta of reminds me of “Bill and Teds Excellent adventure”
Hi Art,
I just read your post and watched the video regarding “fair use.” I noticed that the comments are closed. But, I will state that the young man who produced the video does not have a clear understanding of the Fair Use Doctrine and how it may, to may not apply to youtube videos.
I’d be happy to elaborate.
Cheers,
Michael
BTW, the “news reporting” exception is discussed in the case of Harper & Row et al v. Nation Enterprises, which involved unauthorized publication of excerpts from Gerald Ford’s autobiography by The Nation Magazine, prior to publication of the book, which could have a negative impact on the sale of the book.
Thanks for the comment MichaelL. I moved your comment to the correct post and opened up the comments. Not sure how that got closed.