Notes From Underground - #49Fair Use Gets Less Obtuse

I know y'all are getting tired of this, but things keep falling into my lap about copyright issues and, well, I find it fascinating. So here we go.

The Electronic Frontier Foundation reported about a decision in Lenz v. Universal, a lawsuit centering around this video. In it a toddler is shown dancing to the Prince song "Let's Go Crazy" playing on a stereo in the background. The clip is about 29 seconds long. The video maker uploaded it to YouTube and that's where the fun began. Universal Music issued a takedown notice claiming improper use of the song. But they picked the wrong person to muck with. The video maker in turn sued Universal for misrepresentation under the Digital Millennium Copyright Act (DMCA), claiming that it should have been obvious that it was a case of fair use and that their issuing of a takedown notice without taking that into consideration was not proper. And today came the decision:

"[A] fair use is a lawful use of a copyright. Accordingly, in order for a copyright owner to proceed under the DMCA with “a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law,” the owner must evaluate whether the material makes fair use of the copyright...

A good faith consideration of whether a particular use is fair use is consistent with the purpose of the statute. Requiring owners to consider fair use will help “ensure that the efficiency of the Internet will continue to improve and that the variety and quality of services on the Internet will expand” without compromising “the movies, music, software and literary works that are the fruit of American creative genius.”

Universal had argued that they shouldn't have to consider fair use as it would cripple their response time to potential infractions. The judge said it was malarkey and that the DMCA already required that they "make an initial review of the potentially infringing material prior to sending a takedown notice." Score one for free speech and fair use. This case will undoubtedly be appealed, but for the time being, fair use is fair.

Now, this brings me back to last week's topic. Let's take a minute to define fair use. U.S. copyright law uses a four-tier test for considering fair use which includes:

1. the purpose and character of the use, including whether it is commercial or noncommercial;

2. the nature of the work (e.g., factual works are entitled to less protection than purely creative works);

3. the amount and substantiality of the portion of the work used;

4. the effect of the use upon the potential market for the work.

Reconsidering Sen. McCain's video that involved the Wayne's World clip, I would argue that it's only the fact that it was a political commercial that brings it into question. What about my "I'd buy that for a dollar" idea? My personal feelings say, if I'm not profiting financially, who cares? Actually, my feelings also say this: if I'm recontextualizing to create a new piece of work, I shouldn't have to have permission or have to pay to use it whether I profit or not. My ideas about that are a bit out in left field, but when I see totalitarian attempts at content control like the aforementioned court case, I don't feel so crazy anymore.

You'll see me use that term, 'recontextualize,' quite a bit when I discuss sampling. Because ultimately that's the key difference between theft and art: giving a piece of art new life by juxtaposing it with different surroundings, thus, giving it a new, different or deeper meaning. It's a tradition of folk music to reuse and recycle both lyrical and musical themes - sampling is the digital age's version of just that.