Another "fair use" thread

WingedWeasel

Hello all,

I have searched around for a while, and re-read (a few times) the actual fair use "regulation" here: http://www.copyright.gov/fls/fl102.html

Since I am unsure, I figured I'd see what other's think. Personally I enjoy watching user created "music videos" or "montages" or whatever you want to call them where people sync some song + some clips from video games. My question is: do these works fall under fair use?

For the moment let's assume they are not being sold (not sure who would buy them anyway). The videos would not appear to have any negative effect on either the music artist's or game developer/publisher to sell their works (#4). Likely it would actually be a positive effect, essentially free advertising.

On the other hand, the videos generally use entire songs, and you can't really divide the music part from a "music video".


So any help? Anyone know any places where I can read about other cases that may be similar to this? I have been trying to read up on existing fair use cases, however they don't quite fit this description, besides a few extra sets of eyes can help locate one (if it exists) faster. Thanks in advance!

Wezoin

I believe technically they're a violation, but that most of those videos either dont get viewed enough to attract the attention of record companies, or they attract so much attention that the record companies do see it, and realise it's 1) alot of free advertising, and 2) that alot of people like it and forcing them to take it down would give them a bad wrap.

Again, I'm not really all that qualified, but this is how I always assumed it worked.

TheRealBadger

Just on a quick opinion I'd say no, it wouldn't be fair use. Mainly because it would be difficult to fit it into the available situations for fair use "criticism, comment, news reporting, teaching, scholarship, and research". As far as I'm aware those are pretty exhaustive.

If you could fit it inside one of these then you'd probably still fall foul with the music at least as you're taking the entirety of the work rather than a few short clips.

Anyway, like most video you can find online this is probably infringing copyright somewhere along the line. The reason it doesn't get pointed out is just that it is small fish, no one really cares and like you said, it's free advertising for the authors.

Szechuanosaurus

I would say technically definitely not fair use. It could be deemed to have a negative effect on the ability of the artist or publisher to sell their work because people could just listen to the music by playing the youtube video rather than buying the song. The fact that licensing authorities sell licences to TV studios etc. to use existing music for backing tracks is probably sufficient evidence to prove that you can't legally do this (otherwise the TV studios wouldn't bother paying).

The more interesting question is if the visual content of the video is fair use. This could be justified under 'reporting' although I wonder what argument was given for websites pulling pre-release videos of GTA IV. On one hand, the videos were clearly taken from pirated copies of the game. On the other hand, it wasn't the game itself that was being transmitted, but rather clips from the game which were certainly big news for people interested in it.

CoJoeTheLawyer

From the US Copyright Office website

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.

In other words, there is no definite answer.

In the example you gave (online video using copyrighted music, which utilizes the entire song, made for the purpose of entertainment, that may/may not have a substantial impact on the potential market for the copyrighted music) I would have to say there would be a violation. Whether anyone gives the proverbial rat's ass about it is anyone's guess.

WingedWeasel

I appreciate the replies. I figured that they would not fall under the fair use umbrella. I assume if the creator isn't making money off it likely it will not draw the ire of the copyright holder at least for these cases as everyone mentioned.

Thanks again.