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When I was just ten months old, my father was killed in an accident. (Not to get all morbid on a Thursday morning, but it’s relevant, I promise.) Among other things, he was an amateur filmmaker, and a few years ago I stumbled across a treasure trove of 8mm film he had shot in the 60s and 70s. Most of it was home movie-type stuff (from which I made an ultra-short found footage film, here), but in a shoebox all its own were several reels labeled “Truckin’.” Tucked in between them was a yellowing, typed page of instructions, with references to specific shots and how they should match up to specific lyrics in a song. It was a “paper edit,” as they’re called, of an amateur music video my father had created for one of his favorite songs — “Truckin’” by the Grateful Dead — but never got the opportunity to cut together himself.
I was not myself a fan of the Dead, but I knew what I had to do: use the footage and the paper edit to finish my father’s music video, more than 35 years after he had shot it. So I had the reels digitized, loaded them into Final Cut Pro, and cut it together, second by second, per his instructions. It was no great masterpiece by any standard: shaky and out of focus, most of the shots featured a friend of his thumbing his way down the country roads of then-rural Eastern Maryland. But my mom really appreciated seeing it, as did old friends of my father, who could watch it because I uploaded the video to YouTube and sent them links to it.
But in January, I noticed that the video was no longer on my YouTube page. It had been disabled, with a curt note from YouTube saying that Warner Music Group, Inc had detected a copyright violation in the video and requested that it be pulled. (WMG, of course, owns the rights to much of the Grateful Dead’s catalog.) I was apparently not the only YouTube user to have a seemingly innocuous video pulled down by WMG: in a particularly egregious example, a video of a young woman singing “Winter Wonderland” was yanked for similar reasons.
The reason is this: YouTube has created something called the “content ID system,” which allows copyright owners to use an automated search to find and take down content that appears to match theirs. According to the Electronic Frontier Foundation’s Fred von Lohmann, “These systems are still primitive and unable to distinguish a transformative remix from copyright infringement. So unless they leave lots of breathing room for remixed content, these filters end up sideswiping lots of fair uses.” The same article describes what happened on YouTube in January as a “fair use massacre” —
And that’s exactly what has happened these past few weeks. And while today it’s Warner Music, as more copyright owners start using the Content ID tool, it’ll only get worse. Soon it may be off limits to remix anything with snippets of our shared mass media culture — music, TV, movies, jingles, commercials. That would be a sad irony — copyright being used to stifle an exciting new wellspring of creativity, rather than encourage it.
It’s clear from the Warner Music experience that YouTube’s Content ID tool fails to separate the infringements from the arguable fair uses. And while YouTube offers users the option to dispute a removal (if it’s an automated Content ID removal) or send a formal DMCA counter-notice (if it’s an official DMCA takedown), many YouTube users, lacking legal help, are afraid to wave a red flag in front of Warner Music’s lawyers. That’s a toxic combination for amateur video creators on YouTube.
So what is fair use? It’s been endlessly rehashed and debated, but after my video was taken down, I really wanted to know if it qualified as fair use, or was a legitimate infringement. According to Stanford’s law school, it’s rarely possible to determine whether something is fair use outside of a court of law, but inside a court, there are four factors which judges take into account:
1. the purpose and character of your use
2. the nature of the copyrighted work
3. the amount and substantiality of the portion taken, and
4. the effect of the use upon the potential market.
First and foremost is what they call the “transformative factor,” ie the purpose and character of your work:
• Has the material you have taken from the original work been transformed by adding new expression or meaning?
• Was value added to the original by creating new information, new aesthetics, new insights and understandings?
I’d like to think my father’s music video adds “new aesthetics and insights” to the song, so yeah.
Secondly, the nature of the copyrighted work:
Because the dissemination of facts or information benefits the public, you have more leeway to copy from factual works such as biographies than you do from fictional works such as plays or novels.
In addition, you will have a stronger case of fair use if the material copied is from a published work than an unpublished work. The scope of fair use is narrower for unpublished works because an author has the right to control the first public appearance of his expression.
A little from column A, a little from column B. The song “Truckin’” definitely isn’t “factual,” but it’s certainly been published for a long time and is very well known.
Then there’s the “amount and substantiality taken,” which in my case is all of it. Another strike against my case.
Next, we have to take into account “The Effect of the Use Upon the Potential Market.” Am I depriving “the copyright owner of income or undermines a new or potential market for the copyrighted work”? In this case, I’d have to say no.
Lastly, there’s the unwritten factor that may influence a judge or jury: “are you good or bad?”
When you review fair use cases, you may find that they sometimes seem to contradict one another or conflict with the rules expressed in this chapter. Fair use involves subjective judgments and are often affected by factors such as a judge or jury ’s personal sense of right or wrong. Despite the fact that the Supreme Court has indicated that offensiveness is not a fair use factor, you should be aware that a morally offended judge or jury may rationalize its decision against fair use.
I’m good. That was easy.
All in all, I feel like the video probably falls into a gray area — it’s not like I copied verbatim the music and video tracks of some pre-existing work. Also, 99% of YouTube videos are some random home movie with somebody’s favorite song playing underneath, which the EFF and Fred von Lohmann believe should be fair use:
The [content ID] system should not remove videos unless there is a match between the video and audio tracks of a submitted fingerprint. When we made this suggestion in October 2007, YouTube assured us that they were working on improving the tool. Well, it’s been more than a year. If YouTube is serious about protecting its users, the time has come to implement this fix. (Some will point out that this implies that record labels and music publishers can never use the Content ID tool to remove videos solely based on what’s in the audio track. That’s right. I think that adding a soundtrack to your home skateboarding movie is a fair use. If copyright owners feel differently, they can send a formal DMCA takedown notice, and with any luck, we’ll see each other in court.)
What do you think?
Comments (14)
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Oh, fair use. As a library science student, I’ve studied this topic a bit-and it is infinitely confusing. I know what fair use is in terms of libraries, so going on that I’d have to say you’re in the clear, because your video wasn’t going to interfere with the potential market-but, on the other hand, fair use is generally applied when the copied material is for personal use only. If you sent it around via email or something, that could be considered fair use, but since it was on YouTube and available to the public, the personal use thing might be debatable.
Granted, I know nothing about copyright in the world of music and movies, so my opinion is solely based on the view from the library world and academic publishing. Just my two cents.
posted by Kate on 4-30-2009 at 1:44 pm
Fair use relies far too much on interpretation, which just sets it up to be suppressed by corporate interest. I think the laws should be changed to be more specific, so there isn’t a constant battle to keep content free when it ought to be.
In any case, you should re-up the video using a free version of the song from a live taping, like those on etree.org.
posted by EJPW on 4-30-2009 at 3:13 pm
Ugh, been dealing with copyright issues for some time now… Two of my videos have gotten deleted, though one I admit was fair because I’m not 100% sure I gave the artists credit and that I used parts of the original music video.
The other was for the popular song “Through the Fire and the Flames” by Dragonforce. Now, do a YouTube search for Through the Fire and the Flames. 40,000 results. Now filter it so that no videos crediting the artist are shown. 27,000. And the majority are Guitar Hero, so you know it uses the song.
Another one of my vids just got away with being muted, while the song that it got muted for was only used for about 20 seconds. This wouldn’t be so bad, except that there was a much more popular video using the whole song that stay ed up until the person that submitted it took it down.
One of the most annoying things is that they take down the official music videos from the artist’s channels. Also, since the videos can also be taken down for video clips, that’s pretty much goodbye to the majority of the YouTube community, who either A.)just edits video clips, or B.) lip syncs.
posted by Jacob on 4-30-2009 at 3:26 pm
I’m not sure that your use of Truckin’ falls under fair use. While the video part was entirely yours and your father’s work, the audio portion (sounds like) was an unedited play of Truckin’. Posting said video on YouTube could be considered a public performance of the audio recording, which is what BMI and ASCAP collect on. They have people who listen to radio stations just to report music played on different stations. You could probably get away with 30 second or less clips, as I don’t think that >30 sec. counts. Additionally, you could hire musicians to cover the song for you, and that version should be ok.
The place were fair use is most in danger is an individual’s ability to deal with DRM limited files. This has been sufficiently unpopular that a lot of digital content on sale is DRM free. Google “Betamax Case” to read about how fair use was decided vis-a-vis VCR use.
The girl whose video was taken down which she was singing on would generally be called fair use, and hers should be put back. She owns the rights to her own performance of the song, so that should be allowed.
posted by Dave on 4-30-2009 at 3:29 pm
I’m just glad I don’t work in archive footage sales any more, particularly because UK copyright law doesn’t have such a thing as public domain. Therefore every scrap of film belongs to someone, which can be an absolute nightmare to try and trace.
Anyway…
Fair dealing in UK copyright tends to revolve around how much of an original recording you are using, but also if you can easily trace the rights holder. Generally speaking if you know who to contact you should try to, but of course the difficulty with that is that large corporations don’t want to be bothered licensing to amateur film makers because there is no money to be made there and it would take up a lot of time.
Essentially the law is about 50 to 100 years behind the technology and the culture.
posted by Jen - The Alien Spouse on 4-30-2009 at 4:14 pm
OK – I have no knowledge of copywrite law, so this article is very interesting to me.
Here is the question that I have: if I go to a store and buy a copywrited CD, do I not now own the rights to the music on that individual CD? I can play it in my home, my car, my office, as loud as I want – within the publics ears (who will then HEAR it). If I choose to use the music on said paid for CD (they have gotten the money for the right to use the CD as I choose) for a piece of my own personal artistic expression, am I not entitled to the “fair use” of the CD that I paid for?
Forgive me for my ignorance. I don’t see the point of forcibly taking down a Video on a public site.
Wait – I do – even bad publicity is good publicity.
posted by Michelle on 4-30-2009 at 5:31 pm
Fair use or not fair use- what does it matter in this case? YouTube has the right to set policy for material posted on its web site. If they decide to pull material, they can pull material. How can you argue against that? Put it up on your own site. Start a YouTube alternative site. OurTube. MyTube.
posted by Ruthie on 4-30-2009 at 5:55 pm
I have been dealing with this for several months. My “Classic Hits By Microsoft Songsmith” series has thrown the Content ID system for a real loop. I found I could generally avoid any problems by using filters to distort the video just enough to not catch the Content ID system (the audio doesn’t come close to matching, since it’s only the vocal track I use — the music itself comes from Microsoft Songsmith).
Any claims that HAVE come up, I’ve written brief arguments as to the fair use appeals and I’ve won every one of them.
As for Michelle, when you purchase a music recording, you don’t own the RECORDING. You own a license to use that recording for your private use. Once you start applying that work to your own creations, you’re violating the terms of that license.
posted by azz100c on 4-30-2009 at 6:17 pm
Its not the fact that it been published for long time when the work was first put into the market defines that basis. The work when first released remains published or an unpublished work.
posted by goose on 4-30-2009 at 7:04 pm
That’s part of what my lawsuit against UMG seeks to do: clarify fair use in the context of today’s society. We did get one ruling our our favor so far. The judge said that copyright holders have to consider fair use before sending a DMCA notice to YouTube.
Here’s the EFF page about it: http://www.eff.org/cases/lenz-v-universal
I didn’t expect to talk about it on Mental Floss. I’ve hit the big time now!
They’re a good source of information.
posted by Stephanie on 4-30-2009 at 7:30 pm
You can argue with it. You can file a counternotice. And IMO you should.
posted by Stephanie on 4-30-2009 at 7:31 pm
I’ve posted some YouTube videos of my movie review show, and YouTube automatically disabled the videos because I use clips. However, when I filled out the Fair Use appeal form, they re-enabled it within hours.
posted by Adam on 4-30-2009 at 11:33 pm
It’s so stupid. Now I can’t watch some of my favorite videos because of stupid copyright laws. It makes me wanna punch a baby (not really)
posted by Ellie on 4-30-2009 at 11:40 pm
Companies trying so hard to enforce copyrights on cases like this miss the point of YouTube and social media. For one thing, your intent is not to make money off their property. Your father’s creativity only reinforces the song. It is more likely to inspire a purchase then prevent one.
Imagine if your video had gone viral on a grand scale. People who never had been into the band would have been exposed in what amounts to free advertising. How foolish to give all that up over some abstract right.
posted by Tina Kubala on 5-3-2009 at 2:33 pm