The Fine Line Between ‘No Offense’ and Legal Action

Anybody who has ever grabbed an image, video, or even a phrase from the internet and reused it in their own work (aka remixing) is at risk of entering the dangerous world of copyright infringement dispute. The boundaries of copyright law are as hotly contested as the marriage equality debate in the media, and the two issues have now collided in recent news.

To summarize the scandal, Miss California (aka Carrie Prejean) announced to America her opinion about “opposite marriage” and Perez Hilton (aka Mario Lavandeira) called her “a dumb bitch” in his blog the next morning. Capitalizing on the controversy, the National Organization for Marriage (NOM) launched an ad campaign using clips of both of these inflammatory statements in an attempt to advance their political cause. Lavandeira responded first, followed by The Miss Universe Organization, with cease and desist letters to NOM in objection to the ad’s use of the footage. Lavandeira had the ad removed from YouTube by submitting a copyright violation claim.

Is That Legal?

“NOM’s use of Hilton’s video clip was clearly fair and non-infringing — it is brief, transformative, critical, and does not pose a competitive threat to Hilton’s market. As such, Hilton’s takedown notice was, like takedown notices from Universal Music, Warner Music, Uri Geller and Michael Savage before him, a baseless attack on free speech,” states EFF blogger Tim Jones.

Copyright attorney Ben Sheffner notes, “If people are less likely to support Hilton and his positions after watching the National Organization for Marriage ad, that’s too bad, the law does not recognize that as a sort of harm that copyright is meant to protect.“

NOM’s lawyer appealed their case to YouTube, who restored the video immediately. Ironically, NOM has no problems sending out its own dubious DMCA takedown notices.

What If That Was Your Political Commercial?

Some digital media creators are confident enough about the law to tangle with DMCA takedown notices, but the threat of litigation can sometimes be enough to scare video creators into simply removing their work. This allows large corporations and their legal teams to make troublesome direct assaults on free speech and innovation while courts are still defining the contentious boundaries of fair use.

The Doctrine of Fair Use

For creators of online media that reference existing works, an examination of the doctrine of ‘fair use’ has become vital. The boundaries of artistic freedom and ownership can easily become blurred when sourcing materials from the internet, where copyrighted media is readily available in easily duplicated formats.

Four points are identified by sections 107 through 118 of the Copyright Act (title 17, U. S. Code) as factors to be considered in whether or not a use is fair. These legal guidelines, however, can be frustratingly difficult for the average person to understand.

“If we expect the general public to abide by some kind of copyright system, it had better be one that’s simpler and more streamlined than the current system, which has been described as incomprehensible even by its most renowned scholars,” warns Cory Doctorow.

So Can You Put That in English, Please?

Corynne McSherry, a Staff Attorney for the Electronic Frontier Foundation (EFF) who specializes in intellectual property and contract issues, addressed the issue of fair use to attendees of the EFF Bootcamp on May 11:

“Fair use is decided by courts on a case-by-case basis and can sometimes be hard to predict. That said, there are a number of factors that may help you identify likely fair uses,” states McSherry, who has created a Fair Use Checklist (distributed at the event) to help simplify the matter.

Commonly accepted fair uses include parody, political commentary, news reporting, critical review and educational use. McSherry illustrated a “slam dunk” case of fair use with Dust Films ‘Literal Video’ interpretation of Billy Idol’s White Wedding:

This video clearly qualifies as fair use for multiple reasons:

The creator has clearly added considerable contributions to the original work, in the form of writing and performing new lyrics to the song.
The new lyrics are used to provide humorous commentary on the original work.
The new work is unlikely to be considered an equivalent or substitute for a consumer seeking to license the original work. The new work would therefore cause a negligible impact, if any, on the market for the original work.

While each of these elements alone may not be sufficient to determine fair use, the combination of points presents the case clearly as an artistic parody. Artistic parody has been shown to be protected in an number of cases involving high-profile entertainers and publications, from Saturday Night Live (Elsmere Music, Inc. v. National Broadcasting Co., 482 F. Supp. 741 (S.D. N.Y.), aff’d 632 F.2d 252 (2d Cir. 1980).) to Vanity Fair (Leibovitz v. Paramount Pictures Corp., 137 F.3d 109 (2d Cir. N.Y. 1998).).

Definitely Not Fair Use:
File Sharing, Cutting and Splicing, and Outright Copying

“The fact that now individuals with relative ease can layer three or four songs, copy their favorite scenes from their favorite television shows, or take three or four movies and splice together their favorite action scenes and post them online does NOT mean that these uses are fair. Although some commentators have argued that the “non-commercial” nature of this type of use makes these uses fair, that is not the test under the Copyright Act. There needs to be something more — something that truly injects some degree of original contribution from the maker other than just the assembly of unchanged copies of different copyrighted works,” observes Rick Cotton, the general counsel of NBC.

A Contentious Point : My Video, Your Audio

Suppose the neighborhood skateboarder kids decide to make a video of their adventures, using a song from a popular rock band as the soundtrack. They upload the video to YouTube. Is this fair use?

YouTube’s Copyright Tips warns against it: “Be sure that all components of your video are your original creation — even the audio portion. For example, if you use an audio track of a sound recording owned by a record label without that record label’s permission, your video may be infringing the copyrights of others, and may be subject to removal.”

Fred von Lohmann, Senior Staff Attorney at the EFF, seems to disagree: “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.”

As of this time, it appears that no cases of this precise nature have been litigated. In the meantime, the EFF has created a set of Fair Use Principles for User Generated Video Content, supported by notable institutions such as Berkman Center for Internet and Society at Harvard Law School and ACLU of Northern California.

The Decisions So Far…

Stanford University provides a list of fair use cases, summarized and categorized by media type, which can be useful in gaining a broader understanding of the existing legal precedents.

How Can You Be Sure It’s Fair Use?

“Today almost all major nations follow the Berne copyright convention . For example, in the USA, almost everything created privately and originally after April 1, 1989 is copyrighted and protected whether it has a notice or not. The default you should assume for other people’s works is that they are copyrighted and may not be copied unless you know otherwise,” explains Brad Templeton.

The most reliable way to ensure fair use of copyrighted material is to simply obtain permission. When permission can not be obtained, artists must consider the doctrine of fair use and consult an attorney when the situation is unclear.

For more information:

* NOTE: I am not a lawyer! Always seek the counsel of an attorney for legal matters.