Home > Uncategorized > YouTube and Fair Use: Through the Lenz of Prince

YouTube and Fair Use: Through the Lenz of Prince

By Nick Solish

(First published in the Daily Journal on Tuesday, May 24th, 2011)

The creation of YouTube.com in 2005 engendered a great deal of tension between owners of copyrighted content and people who upload original videos to YouTube.com.  The Digital Millennium Copyright Act provides content owners with a mechanism by which they can challenge allegedly infringing content via a takedown notice.  However, videos protected by the fair use doctrine of the Copyright Act are frequently taken down alongside infringing works.  So the question remains, what constitutes fair use of copyrighted content when it comes to YouTube videos?

The fair use doctrine, as codified in Section 107 of the Copyright Code, limits a copyright holder’s exclusive right to reproduce, or authorize others to reproduce, a work.  It explicitly includes such works as criticism, comments, news reporting, teaching, scholarship and research as fair use. Works which do not fall within these categories are analyzed using four fair use factors: the purpose and character of the use, including whether it is for profit; the nature of the copyrighted work; the amount and substantiality of the portion used of the copyrighted work in relation to the whole; and the effect of the use on the potential market for, or value of, the copyrighted work.

YouTube.com is one of the largest fair use battlegrounds.  According to YouTomb.MIT.edu, a research website by Massachusetts Institute of Technology that monitors videos taken down from YouTube.com, at least 10,000 videos have been removed for alleged copyright infringement.  YouTube.com and its parent company Google have implemented tools to deal with takedown notices alleging infringement.  The “content ID” tool allows copyright holders to automate which videos are sent DMCA takedown notices.  YouTube’s blog explains that copyright holders may be notified automatically if an uploaded video uses any copyrighted material.  Users may dispute takedown notices using content ID; disputed takedown claims lead to reinstatement of the offending videos and shift the burden of proving copyright infringement to the copyright holder.

However, content ID alone may be insufficient to allow copyright owners to determine whether an allegedly offending video is protected by fair use.  For instance, content ID still cannot determine the context of the work, which is crucial to a determination of fair use.  This type of automated response system has led to the removal of videos that would qualify for protection under fair use.

An example is the 2007 case of Stephanie Lenz, where Universal Music Corp. (UMC) filed a takedown notice with YouTube.com over a video of Lenz’s son dancing to Prince’s song “Let’s Go Crazy.”  Lenz filed a counter-notice with YouTube.com claiming that her video was a fair use of Prince’s song, due to the poor audio quality and the short duration of the song.  Six weeks after receiving Lenz’s counter notification, YouTube.com put her video back on its site. However, unsatisfied with UMC’s failure to consider fair use before sending the takedown notice, Lenz filed a complaint against UMC for misrepresentation under the DMCA and sought declaratory relief stating that her use of the song qualified as fair use.

In Lenz v. Universal Music Corp., 572 F. Supp. 2d 1150 (N.D. Cal. 2008), UMC argued that copyright holders cannot be required to evaluate fair use before sending a takedown notice because fair use is merely an excused infringement of copyright, rather than a use authorized by law or by the copyright holder.  UMC contended that the DMCA does not specifically mention fair use, and therefore copyright owners need not consider it before sending takedown notices.  Lenz countered that fair use was authorized by law as evidenced by its codification in the Copyright Act of 1972.  The court determined that the phrase “authorized by law” was unambiguous and included any activity permitted by law, which included fair use.

Lenz also alleged UMC sent the takedown notices in bad faith.  The DMCA takedown notice must include “a statement that the complaining party has a good faith belief that use of the material…is not authorized by the copyright owner, its agent, or the law.”  17 U.S.C. Section 512(c)(3)(v). The court acknowledged that the unnecessary removal of non-infringing content caused significant injury to the public and that the counter-notification remedy was insufficient.  From the evidence, the court found that UMC was a sophisticated party and failed to consider fair use before sending the takedown notice; rather, the takedown notice was sent to Lenz as part of a campaign by Prince to retake control of his art online.

The court granted partial summary judgment for Lenz based on UMC’s failure to include a statement in the takedown notice “that the complaining party has 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.”  In other words, copyright owners must consider fair use before sending DMCA takedown notices.

However, the court never directly applied the fair use factors to Lenz’s video, focusing instead on the issue of whether UMC must consider fair use before sending a takedown notice.  Applying the Section 107 fair use test to Lenz’s video, the purpose of the work was to share a video of her son dancing, not to detract from legitimate Prince music videos.  The video was not uploaded for profit.  The nature of the work is a home movie, not a concert bootleg or reproduction of official video footage.  The amount of Prince’s song used was very little, totaling less than 20 seconds, in relation to the entire four-minute plus song.  Finally, the effect of Lenz’s video is unlikely to affect the market for Prince’s copyright works.  Thus, the video largely qualifies as fair use.

While Lenz had a strong argument that her video was fair use, other famous YouTube.com parodies may not.  For instance, a popular series of parodies take footage from the German movie “Downfall” depicting Adolf Hitler ranting about the imminent collapse of the Third Reich, and add subtitles depicting Hitler complaining about everything from his inability to get Billy Elliott tickets to not being able to find Waldo. The copyright owner, Constantin Films, began sending takedown notices for these parodies in mid-2010.  Though these parodies use original footage from the movie, their creators argue that the addition of comedic subtitles makes these videos fair use under the Copyright Act.  While these films are not for profit, they do use several minutes of original footage, albeit with added subtitles.  Although these videos would evidently be protected by fair use, it is unclear whether Constantin Films has considered this possibility before sending takedown notices.

One video testing and explaining the limits of fair use is “A Fair(y) Use Tale,” created by Bucknell University Professor Eric Faden using thousands of snippets of Disney films pasted together.  Scenes from Aladdin, Beauty and the Beast, and several other Disney movies are chopped into one-word snippets to create a narrative explaining the meaning of fair use.  As Buzz Lightyear and Aladdin lament, “unfortunately, copyright keeps getting longer,” with fair use being one of the few defenses to total control by copyright holders.

Ultimately, content ID is a powerful tool for copyright owners to police their content online.  However, given the requirement that copyright owners must now consider whether a video is fair use before sending out takedown notices, it is unclear whether automated systems such as content ID will ever become sophisticated enough to meet the strict requirements of copyright law.

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