From Ars Technica:
The video of Stephanie Lenz’s 18-month old son Holden was uploaded to YouTube back in February; Universal filed a DMCA claim against the clip in early June. Lenz responded with a counter-notification of her own at the end of the month, but the clip was never reinstated. Now, she has joined forces with the EFF to recover damages after she “has been injured substantially and irreparably,” according to the court filing. Lenz wants money to cover her legal expenses and wants an affirmative judgment that her clip is not infringing.
So on one side, a music conglomerate that thinks the background music in home videos constitutes copyright infringement; and on the other, a woman who thinks the removal of her YouTube video constitutes substantial and irreparable harm. Legal assertions regularly skew towards the absurd, but this is fire v fire at its best. The battle of utterly inane arguments will be waged before a U.S. District Court in California.
Universal demands takedown of homemade dancing toddler clip; EFF sues [Ars Technica]
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@crankymediaguy: No, of course I don’t mean something small like a quote, that *is* fair use. I mean using a large portion or the whole thing.
I always enjoy reading comments from people who talk like experts that really are just giving an opinion that isn’t based in fact or law.
I am no lawyer but before you say “of course it’s copyright infringement” considering reading up on FAIR USE.
To try and educate myself on the issue, I joined the Electronic Frontier Foundation.
I would encourage anyone who is tired of RIAA and other music interest groups bullying people, to join EFF. They are suing Warner Music on behalf of the woman above. Their article on that is here.
Oh, and also read Lawrence Lessig’s book “Free Culture” to understand the history of copyright.
@olegna: “Do you owe the RIAA money because some bystanders happen to be playing licensed music in a public place that you’re filming? I think not.”
You very well might, I wouldn’t want to take it to court.
Why would you not just cut that part out before selling the video if that isn’t even the part that makes it valuable? Or dub over it to remove the audio if you need the images for authenticity. This is done all the time to protect unintentionally included copyrighted material.
Would you not agree that if you had purposely videotaped the dance troupe and sold that tape, that would be a copyright infringement (both of the owner of the music AS WELL AS the dance troupe)? Then how is selling the same footage as part of something else any different? Intent and main subject is not what defines copyright infringment.
Now in a case like this, you might not get sued because, hopefully, good sense would prevail and they’d realize you weren’t *trying* to use that, it was just part of what happened. But just because they don’t sue you doesn’t mean it wasn’t copyright infringement.
Whenever music is married to an image as in film or TV, you are required to get a synchronization license. (The Master license is another argument…)
The law is a bit hazy when it comes to randomness – if you were to play an image without sound on a screen and then pressed play on an old-fashioned cassette deck, a sync license would not be required. But when the music always matches the action on the picture, it is required.
This isn’t a problem for home movies, but it is a problem for home movies that are posted to a broadcast site like YouTube. I think the thing that most impresses me is the fact that Universal recognizes the power of YouTube and knows that videos can become sometimes as popular as TV shows.
The sync license would not be required if it were within the parameters of “fair use” – showing it to family & friends and perhaps even posting it to your own website. But when you use YouTube, a site designed to broadcast filmed images to a large audience, those who hold the sync and master rights will take notice.
I don’t think they’re being ridiculous. FOR ONCE. There can be very strict guidelines for getting approvals for using music in a film or TV show – I remember working on one film and we wanted a Moby song. (This was before he ended up licensing his entire _Play_ album.) He objected to the song usage because the accompanying imagery looked too violent to him so an alternate had to be found. If the licenseholders don’t draw the line with regard to YouTube content – which is comprised not of professional and amateur stuff – they might find themselves in a situation where their songs are used in inappropriate or offensive contexts and they can’t do anything about it. Including getting the money that’s coming to them.
This is especially hard on musicians who by luck or planned negotiations are able to retain their publishing (sync) rights.
If anyone here at Consumerist needs to replace the music on their Youtube videos with original music, drop me a line: brailleparty@hotmail.com
I will do it for cheap.
@Rey: While it may be safer to get a license in some cases, it is not required when the use is fair use. The industry practice in this area does not mirror or often even resemble copyright law because filmmakers often err far on the side of caution. There are no hard rules; it all depends on the particular circumstances. A bit of music caught incidentally in a home movie will be treated by the courts much differently than an intentional taping and display of an entire performance.
Given that nobody is going to use this video as a replacement for the original album, I find it extremely unlikely that a court would consider this to be infringement.
GBECK: You are right in that under normal circumstances this would absolutely be fair use.
But the tricky thing with sync licenses is not in the worry that the music will be pirated or recorded onto a CD instead of purchasing an album. Sync licenses must be obtained for all appearances of music within a film or broadcast where the music lasts usually around 5 seconds or is recognizable.
That said, the home movie scenario is pretty safe, but when you start posting your videos – amateur or not – so that they are broadcast to a wide audience, the fact that the music is consistently linked to the accompanying image is enough the rights-holders need to make a case.
It’s true, the filmed entertainment industry does err on the side of caution but that’s because they have seen first-hand what can happen when you don’t get clearances in advance – it can end up costing thousands of dollars more to license the track. In these cases, it’s much more expensive to ask for forgiveness than it is to ask for permission.
I agree that RIAA was within it’s rights, no matter how douche-like it is.
Also, some of you need to read up on what fair use is (with regards to American law):
From [www.copyright.gov] :
“The distinction between “fair use” and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.”
It also makes note on whether or not the work is for a commercial venture or not. Asking youtube to remove it is within the copyright holder’s… rights.
AGNP
Sued for a song playing in the background? And I thought the industry could go no lower than trying to get blantant parodies taken down by means of the DMCA.
they need to just ban music all together.
I made a video slide show from some pics I shot, and dubbed a Tom Petty song behind it. Can it be used in any kind of public forum? Even if there is no money in it for anyone?