Category: Music

Copyright Goes Crazy: Mother’s Claim Of Fair Use Via YouTube On Trial

FBI Warning - Fair Use
FBI Warning: Fair Use

A California case is drawing the eyes of the music industry and helping to define what constitutes the “fair use” of copyrighted material.  In Lenz v. Universal Music, Stephanie Lenz uploaded a 29-second clip to YouTube of her toddler dancing while Prince’s 1984 hit “Let’s Go Crazy” was playing in the background.  Universal, owner of the copyright to “Let’s Go Crazy,” requested that YouTube remove the video, which they did, further banning Ms. Lenz from uploading any more videos for good measure.  Incensed by the possibility of having her toddler’s future in show business cut short, Lenz sued, arguing that Universal’s takedown request to YouTube was deceitful because it failed to consider fair use of copyrighted material.

Lenz’s argument was that Universal abused the Digital Millennium Copyright Act (“DMCA”) by sending a frivolous takedown request to YouTube.  The DMCA provides that a copyright owner may demand that an offending party remove material that they have used without permission.  The Court ruled, however, that copyright owners must consider whether a person has made fair use of the copyrighted material before sending a takedown request.

But what does the law consider fair use?  Fair Use is a legal doctrine that allows a party to use copyright material without permission as long as the party follows certain guidelines.  This case is unusual because fair use typically works as a defense to copyright infringement.  The issue is not whether the copyright protects the work, or whether the accused made use of it without permission, but rather whether the unauthorized use is allowed.  The fair use of copyrighted material provides a legal safe harbor for commentary, criticism, or parody of the material.  Although there are no hard and fast rules for defining precisely what fair use is, the U.S. Copyright Office has issued the following guidance to help you decide:

  1. What is your reason for using the copyright material?  Is it for nonprofit, educational purposes or for business goals?
  2. What is the nature of the copyright material?
  3. How much of the copyright material do you plan to use when compared to the work as a whole (e.g. how many seconds or minutes from a whole song)?
  4. How much less money, if any, would the copyright owner make because you are using their work?

The more your use of copyrighted material leans toward educational rather than commercial purposes, the more likely you’re making fair use of the material.  The same is true when the use is of only a small part of the total work, and where the copyright owner is unlikely to lose much money due to the use.  The type of work also matters.  Copying a rare documentary will not have the same impact as copying a famous pop song.

The Court’s decision that a copyright owner must consider fair use before sending a takedown notice, however, didn’t end the case.  The judge left open whether Universal made a sufficient fair use consideration before sending its takedown request.  While Universal conceded that it may not have considered fair use per se prior to issuing the takedown notice, the record showed that its employee was able to clearly identify the song in the video (which was titled “Let’s Go Crazy #1”), suggesting that Lenz’s work would not have had the same visibility or appeal without the Prince song.  Universal also noted that Lenz played the song loudly throughout the video and asked the toddler whether he liked the song.

Lenz’s attorneys argued that Universal made no real analysis of whether the video was fair use of the song, issuing its takedown notice simply because it considered the use excessive.  Neither side won the judge’s heart completely.  The court commented that a fair use evaluation does not require a full-blown, detailed analysis but does, however, require that the copyright owner show some evidence that it had applied doctrine of Fair Use to all the facts and circumstances prior to issuing a takedown notice.

The Court also offered a mixed bag of conclusions on the issue of damages.  It reasoned that Lenz suffered no harm by being YouTube’s ban (it being a free service), or that Universal violated her first amendment rights (secondary damages argument) by issuing the takedown notice.  The Court left open the possibility, however, that Lenz could recover for expense of resources (electricity, phone and internet bills, etc.), her time, and attorney fees in fighting to get her video up on YouTube again.  The case is now set for trial, as the judge was not willing to settle these matters without a full exploration of the facts.

If you were sitting on the bench, how would you decide the case?  Was Lenz’s use of “Let’s Go Crazy” fair use?

–          Ari Good, Esq.

Ari Good, JD LLM, a tax, aviation and entertainment lawyer, is the Shareholder of Good Attorneys At Law, P.A.  Ari Mr. Good received his BA, With Distinction, from the University of Michigan in 1993.  He graduated from the DePaul University College of Law in 1997 and received his LL.M. in Taxation from the University of Florida.  Ari represents DJs, live musicians, fashion models and other entertainers in copyright, licensing and contract matters.

“No Stairway. Denied!” – The Effect Of Copyright On DVD Releases

The Copyright Effect of Music and DVD Releases of TV Shows and Films
Licensing Music that has Copyright Protection for DVD Releases of TV Shows and Films

For those of you in the right demographic, you may recall a sketch comedy show that aired on MTV in the early 1990’s, “The State.” This critically acclaimed, but commercially unsuccessful, production featured many skits that featured popular music to construct its humor. (Marvin Gaye’s “Let’s Get It On” being one example). This background music was often critical for comedic effect. MTV was able to liberally insert copyrighted music in the show because it had generous licensing deals with various record labels at the time. These deals allowed it to use songs from music videos aired on its network for its original programming without having to pay royalties.

In no small part to the music used, The State developed a cult following during its 4-season run and many clamored for its DVD release years later. There was a major snag, however. MTV did not have the broad licensing rights necessary to include the original music for home video (e.g. DVD) reproduction. Its music license only covered television broadcasts. A simple calculation revealed that the cost to obtain licensing rights to include the original music for the DVD release would have swamped any profit from selling the DVD’s of the niche show. MTV instead opted to dub over the songs with cheap alternatives and blur any copyrighted images. The end product was a watered down version of the show that alienated fans and skits that made little sense to the newcomer.

The State is just one example of the issue of copyright and DVD releases of older films and televisions shows. Many other programs far more popular than The State have been affected, including: Saturday Night Live, In Living Color, WKRP in Cincinnati, 21 Jump Street, Grease, Captain America: The First Avenger, and even Wheel of Fortune. This clip from Wayne’s World highlights the effect of such changes:

In the theatrical release of the movie, Wayne plays the first four notes to “Stairway to Heaven,” but an employee quickly cuts him off and points to the store’s “No Stairway to Heaven” sign. The joke parodies novice musicians’ need to jam that particular song over and over in guitar shops, but never buying anything. As you can see in the video clip of the DVD release, however, Wayne’s intro of Stairway is dubbed over with a bland guitar riff. This is because Led Zeppelin refused to give permission, at any price, for the studio to use their song in the release of Wayne’s World on DVD. Without the subsequent dub over, the studio would have been infringing on Led Zeppelin’s copyright to the song. The dubbed version, however, fails to make sense without those four notes, especially to an international audience of first time viewers. Even when copyright permission is available for other works, executives have resorted to dubbing and blurs rather than pay licensing fees.

But why did executives not acquire broader licensing deals to the music used in films and television? The answer lies with the technology and markets that existed at the time creators produced their works. Executives didn’t foresee the upcoming DVD revolution and securing broader licensing rights would have cost more. Many felt it was simply an unnecessary expense years ago. The sale of VHS tapes, laser discs, and other home video media was just not that profitable. It was only with the coming of DVD’s that things changed and distributing films and TV shows for home use became a booming business. Copyright owners naturally want a slice of the profits networks and studios make in releasing DVD’s, but sometimes demand exorbitant fees for music licenses. Networks and studios instead often choose to dub over songs and blur images to avoid these fees and any potential copyright infringement. This happens either because music licensing fees would be greater than any profit on selling the DVD’s, or simply because they want to keep all of the profit.

As these cases illustrate (and anyone familiar with George’s Lucas’ foresight to acquire licensing rights to sell Star Wars merchandise), the extent of licensing rights can have a huge impact on money changing hands. Keeping this in mind, what future issues do you predict could occur with copyright, technological advances, and artistic productions?

– Ari Good, Esq.

Ari Good, JD LLM, a tax, aviation and entertainment lawyer, is the Shareholder of Good Attorneys At Law, P.A. Ari Mr. Good received his BA, With Distinction, from the University of Michigan in 1993. He graduated from the DePaul University College of Law in 1997 and received his LL.M. in Taxation from the University of Florida. Ari represents DJs, live musicians, fashion models and other entertainers in copyright, licensing and contract matters.