fair use denied — part V

The conclusion to fair use denied (otherwise known as when wildest dreams collide with the creative process). For earlier installments see Part I, Part II,  Part III, and Part IV.

V. factor four and some last words

(4) The effect of the use upon the potential market for or value of the copyrighted work.

In the later twentieth century, this factor was deemed the most important element of a fairness analysis, with the peculiar logic that if a work could have been licensed, then it should have been licensed. A case which facilitated this avenue of thought is American Geophysical v. Texaco, whereby copying journal articles for the purpose of research was deemed infringement.[1] At appeal, the Court of Appeals for the Second Circuit affirmed the district court decision and emphasized that the presence of a means of licensing was reason to deny fair use.[2] As the Second Circuit represents the geographic region of New York, which is home to the core of American publishing, the decision carried further weight.

It is fitting then, that for nearly ten years, the Second Circuit has been instrumental in supporting a more nuanced interpretation of fair use. For instance, in Bill Graham Archives v. Dorling-Kindersley (2006) the Court showed a conspicuous disinterest in adding to licensing revenue even when mechanisms of licensing existed:

“It is indisputable that, as a general matter, a copyright holder is entitled to demand a royalty for licensing others to use its copyrighted work, and that the impact on potential licensing revenues is a proper subject for consideration in assessing the fourth factor.” (citations omitted). We have noted, however, that “were a court automatically to conclude in every case that potential licensing revenues were impermissibly impaired simply because the secondary user did not pay a fee for the right to engage in the use, the fourth fair use factor would always favor the copyright holder,” (citations omitted). …  Accordingly, we do not find a harm to BGA’s license market merely because DK did not pay a fee for BGA’s copyrighted images. [3]

In Authors Guild, Inc. v. HathiTrust (2013), the Court was emphatic that market impact was very precisely defined: “…  it is important to recall that the Factor Four analysis is concerned with only one type of economic injury to a copyright holder: the harm that results because the secondary use serves as a substitute for the original work….”[4]  More recently in Author’s Guild v. Google, Inc. (2015) which entailed unauthorized displays of snippets of copyrighted works, the Court sought to evaluate market harm by asking if the copying is: “done in a manner that results in widespread revelation of sufficiently significant portions of the original as to make available a significantly competing substitute (p.34).”[5]

Returning to the current situation, the excerpt used in this instance of play could not serve as a meaningful substitute for the song as a whole. If a complainant was to take the view that sanctioning the reproduction of snippets of works creates the conditions whereby an entire song could be assembled, I am happy to concede this point. Yes, it is theoretically possible. However, it would require a fair amount of serendipity—that a sufficient number of creators all favoured Wildest Dreams and have managed, between the group, to capture the entire 235 seconds of the song through independently chosen snippets. Yet even if such an extraordinary accumulation of creative instinct bore this fruit, it remains that the song as a whole is already sanctioned for enjoyment through vevo.com, making the assembly from snippets wholly unnecessary.

To be clear, using this snippet of Wildest Dreams, has no effect upon the market for Wildest Dreams. And having carried out the four-factor analysis, as required by American statutory law, the use of the snippet of Wildest Dreams in the playful manner described is consistent with fair use.

Last words

While the historical foundation and current structure of American copyright aims to secure the right to copy, neither constitutional imperative nor statutory language has deemed copyright a means of absolute control. It seems fitting then, to return to a cogent reminder offered by Fred von Lohmann in 2008: “Copyright law strives to strike a balance between creating adequate (not maximal) incentives for the creation and distribution of expressive works, while also ensuring widespread public access to and enjoyment of such works.”[6]

As stated at the outset, the degree to which Taylor Swift may, or may not, have any influence over the management of copyright in the production of songs that she performs, is unknown. But as a performer that prizes dialogue with her fans, perhaps Swift might consider using her influence to modify enforcement of copyright, to at least comply with the directive of the Ninth Circuit that fair use must be given consideration before the issuance of a takedown/strike notice.

Quite apart from observing the law, such consideration would help safeguard a realm of play that is necessary to bring forth future generations of song writers, musicians, artists, directors and performers. Something that, we can only hope, Swift would support.

 

Notes

[1] In 1978, publishers in the United States formed the Copyright Clearance Center and began marketing licenses for photocopy reproduction in workplace settings. Lawsuits followed shortly thereafter; “Regular reward notices began appearing in periodicals, offering monetary compensation to those who could furnish conclusive evidence of unauthorized copying. In 1985, numerous CCC-member scientific and technical journal publishers sued Texaco, a company that purchased a CCC photocopy license but, according to the CCC, had failed to accurately report the extent of its photocopying.” See Nicole B. Cásarez, Deconstructing the Fair Use Doctrine: The Cost of Personal and Workplace Copying after American Geophysical Union v. Texaco, Inc. (1996) 6 (2) Fordham Intell. Prop. Media & Ent. L.J. 640 at 644.

[2] “Despite Texaco’s claims to the contrary, it is not unsound to conclude that the right to seek payment for a particular use tends to become legally cognizable under the fourth fair use factor when the means for paying for such a use is made easier;” see American Geophysical Union v. Texaco, Inc., 60 F.3d 913 (2d Cir. 1994) at 931-32.  Rather than attempt further appeal, Texaco opted to settle; as a consequence, the licensing regime instituted by the Copyright Clearance Center of the United States was aggressively promoted; see Cásarez above note 1, at 649.

[3] Bill Graham Archives v. Dorling-Kindersley (2006), 448 F.3d 605 (2d Circ.2006),

[4] Authors Guild, Inc. v. HathiTrust 755 F.3d at 97.

[5] Author’s Guild v. Google, Inc., No. 13-4829 (2d Cir. 2015)

[6] Fred von Lohmann, “Fair Use as Innovation Policy,” 2008 Berkeley Technology Law Journal 23 (2) 1 at 10.

fair use denied — part IV

A copyright strike, a brief history of fair use, and the creative process; see Part I, Part II, and Part III.

IV. factors one, two and three of fair use

(1) The purpose and character of the use.

American commentary regarding the purpose of use tends to dwell upon the language of “tranformative”.[1] Entering fair use dialogue in 1994 via the Supreme Court decision Campbell v. Acuff-Rose, Inc., “transformative” was defined as “altering the original with new expression, meaning, or message.”[2] The scope of the definition has grown; now one may also probe whether the copy “served a different function from the original.”[3]

But the situation at hand does not lend itself to a claim of transformative. The use of the copy was for the same function as the original: the enjoyment of listening to the music. AL (despite being a budding filmmaker) did not have any pretensions to greater utility or message when she chose to include music with her conversation.

Fortunately, the lack of a transformative quality does not diminish the fairness of the purpose of this use. To engage in play is worthy of protection under fair use. If adults are to properly utilize the system of copyright to achieve its Constitutional imperative of “promoting the progress of science and the useful arts,” as detailed in Part III (of play and progress), it is vital to foster the spirit of play in our youth.

Thus, play is a suitable purpose and, in this instance, was undertaken with noncommercial motives.

(2) The nature of the copyrighted work.

Conventional wisdom has been that the more creative the copied work, the more this factor will not favour fair use. Returning again to Campbell (1994) the Supreme Court stated, “this factor calls for recognition that some works are closer to the core of intended copyright protection than others, with the consequence that fair use is more difficult to establish when the former works are copied.”[4] Yet,  in that same case, where the Court was evaluating a parodic-creative work, against its input-creative work, the Court also stated that the question of “nature” was of little help and declined to pronounce any assessment for this factor: “This fact, however, is not much help in this case, or ever likely to help much in separating the fair use sheep from the infringing goats in a parody case, since parodies almost invariably copy publicly known, expressive works.”[5]

Subsequently, various Appeals’ courts have emphasized that this factor neither assists with, nor detracts from, an argument of fair use.[6] The same should be said in this situation of play.

(3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole.

It is taken as a matter of logic that the less one copies, the more likely the copying will be assessed as fair. Would-be fair users are instructed to examine the copied work from both a qualitative and quantitative perspective. Dire warnings are cast about taking the heart of a work, that one should avoid replicating the most distinctive aspects of a work. Yet for the use employed here, incorporating a recognizable song is the purpose, much like in the instance of parody as established in Campbell.

The recording industry goes to great lengths to penetrate individual consciousness with lyrics and music (the goal being to embed a desire for purchases of singles, albums, and concert tickets). But when cultural artifacts penetrate lives, those artifacts will show themselves in the personality of those lives. Sometimes the display is purely passive; for instance, the act of listening to music. But for others, the creative among us, passivity eventually gives rise to new production.

Replication and imitation are the foundations upon which future creativity is built. Judge Richard Posner of the United States Court of Appeals for the Seventh Circuit makes this point forcefully:

The pervasiveness of borrowing in literature is captured in Northrop Frye’s dictum that “poetry can only be made out of other poems; novels out of other novels.” Frye had some tart words about copyright. He notes the challenge to the assumptions underlying the copyright law posed by “a literature which includes Chaucer, much of whose poetry is translated or paraphrased from others, Shakespeare, whose plays sometimes follow their sources almost verbatim; and Milton, who asked for nothing better than to steal as much as possible out of the Bible.”[7]

The instinct to replicate and imitate needs to be nurtured early in life if those individuals are to become creative adults.

For the purposes of a conventional four-factor analysis of AL’s situation, the quantitative/qualitative aspects illustrate a minimal taking of Wildest Dreams. Only 36 seconds of the song were copied, and of that only 17 seconds were clearly audible. Of those 17 seconds, the first 12 seconds were purely instrumental. In the remaining five seconds of clarity, a listener would have heard the following lyrics: “He said let’s get out of this town – Drive out of the city.”[7]

At best, those lyrics would be described as one complete sentence and one sentence fragment. The audible quantity of music and lyrics represent a negligible portion of the song and thus ought to be considered fair. And even if one must consider the entire 36 seconds, such a snippet should comfortably be considered fair in light of both the purpose of play (above) and consideration of the effect upon the market as per the fourth statutory factor, to be covered in tomorrow’s concluding installment.

Canadian readers may be relieved to know that our courts acknowledge that evaluation of quantity should be considered in light of the prevailing purpose and the work under consideration. For instance, it is implausible that using a partial quantity of an image would serve any purpose; one either takes all of it or none of it. Copying an entire work for parody or private study may be reasonable, given the nature of the use. Whereas copying an entire work for the purpose of published criticism, may not be appropriate. Our Supreme Court has emphasized many, many times that an evaluation of fair dealing (or other exceptions) is always a contextual investigation. Of course, “play” in Canada is well protected by a number of avenues; see Part I.

 

Notes

[1] In the wake of the Ninth Circuit’s instruction to copyright owners to consider fair use before issuing a takedown notice, Jeff Roberts writes: “ … for practical purposes, the deciding factors are usually whether the new work is transformative and if it will impact the market for the original work.” See “Mom wins huge fair use ruling in Prince “dancing baby” case,” Fortune, 24 September 2015.  More recently, see Emily Hong argues that a comparative creation of hers is “transformative and doesn’t necessarily offer a substitutable good.” See “What Beyoncé and Justin Bieber taught me about fair use,” Slate, 25 January 2016.  (For any Canadians reading this, our Supreme Court has never required transformative use; see Meera Nair, “no surprise“.)

[1] Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994).

[2] Authors Guild, Inc. v. HathiTrust 755 F.3d at 97.

[3] See note 2 above.

[4] Ibid.

[5] For instance, Author’s Guild v. Hathi Trust (2nd Circuit 2013); Sony Computer Entertainment America, Inc., vs. BLEEM LLC, (9th Circuit 2000); and Triangle Publications, Inc. vs. Knight-Rider Newspapers, Inc. (5th Circuit 1980).

[6] Northrop Frye, Anatomy of Criticism: Four Essays (Princeton: Princeton University Press, 1957) at 95-104, quoted by William M. Landes & Richard A. Posner, The Economic Structure of Intellectual Property Law (Cambridge: Belknap Press, 2003) at 59-60.

[7] Wildest Dreams is available for viewing and listening at vevo.com, and the lyrics are available from metrolyrics.com.

fair use denied — part III

For earlier installments of fair use denied, a story of wildest dreams, see Part I and Part II.

III. of play and progress

Fair use’s flexible language is often lauded as the reason behind the United States’ enviable record of innovation. As a consequence, other countries view a flexible exception as a style worth emulating.[1] However, such adoration of fair use overlooks one vital aspect of creative success—the process which leads to a creative mind. And while we cannot definitively prescribe that process, we can situate the process within the atmosphere of intellectual property.

The conventional premise of intellectual property rights is that such rights enhance the likelihood of creative effort by assuring individuals that their work will not be for naught. Yet the asserted causality between advances in art, science and technology, and heightened levels of intellectual property protection, may be more rhetoric than substance.[2] History offers compelling illustration of creative epochs which were accompanied by little or no intellectual property protections.[3]

Taking our cue from history, it is reasonable to assert that the process of creativity is affected by the ability of individuals to engage with existing/past creations; that is, to act freely upon informal or casual creative impulses. Such freedom is not something that may be turned on or off at will, it is an internal instinct shaped by the surrounding culture of thought. The capacity to let one’s mind roam, to see something that others do not, to explore without conscious objective–to embark upon play—is essential to developing the creative process.

This theme was articulated by Julie Cohen more than a decade ago. While eschewing the proposition that exceptions are users’ rights, Cohen emphasizes that any theory of authors’ rights must be informed by an accompanying theory of the user. Cohen writes: “Both copyright law and policy have shown little interest in understanding the processes by which these roles are performed, nor in inquiring what users need to perform their roles in a way that optimizes the performance of the copyright system as a whole (348).”[4]

Denoting the user as a “situated user”, Cohen makes plain that appropriation of pre-existing cultural goods are part and parcel of the self-development of individuals. The path to creativity includes consuming pre-existing works in a variety of ways. From the humble copy, to reworking that copy, to a seemingly original creation, the route to creativity necessarily includes those intermediary destinations. The stimuli that provoke eventual creative activity are varied; friends, family, teachers, formal and informal learning, advertising, popular culture – all contribute to an awareness of existing cultural goods. Exposure to, and re-communication of those goods, might provoke only a fleeting, partial inspiration which will not take tangible form for many years to come. But for that eventual, socially-prized, creation to come into being, the system of copyright must protect what Cohen describes as play of culture:

… process by which culture bends and folds unpredictably, bringing new groups, artifacts and practices into unexpected juxtaposition.  … [It] emerges from the full spectrum of behaviour of situated users. Consumption, communication, self-development, and creative play, merge and blur into one another, and the play of culture is the result (373).

An overt consciousness of the supposed-illegality of using others’ works must condemn future society to a very narrow realm of creative discovery. Whereas, if individuals are free to explore with the enthusiasm of play, the capacity to foster ideas and cause development in ways that cannot be predicted, is heightened.

But “the Child is father of the Man;”[5] to carry the sense of play into adulthood, it needs first to be protected in childhood. Part IV continues tomorrow.

 

Notes

[1] In 2007, Israel imported much of American fair use into its domestic law. “(a) Fair use of a work is permitted for purposes such as: private study, research, criticism, review, journalistic reporting, quotation, or instruction and examination by an educational institution. ­­­(b) In determining whether a use made of a work is fair within the meaning of this section the factors to be considered shall include, inter alia, all of the following: (1) The purpose and character of the use; (2) The character of the work used; (3) The scope of the use, quantitatively and qualitatively, in relation to the work as a whole; (4) The impact of the use on the value of the work and its potential market. (c) The Minister may make regulations prescribing conditions under which a use shall be deemed a fair use;” see Copyright Act [Isr.], 5768-2007, 2007 LSI 34 (2007) at § 19.
In 2011, Ireland’s Department of Enterprise, Trade and Innovation sought submissions concerning copyright amendment, with an express interest in examining “ …US style ‘fair use’ doctrine to see if it would be appropriate in an Irish/EU context.” Interestingly enough, the terms also stated that if suitable changes were not possible under the current constraints of EU copyright directives, Ireland would make recommendations for changes to those EU directives. <http://www.deti.ie/science/ipr/copyright_review_2011.htm> website no longer available. However, press coverage remains; see John Kennedy, “Radical copyright reform law to boost Ireland’s digital economy?” SiliconRepublic 9 May 2011.
Also in 2011, the Government of the United Kingdom explored fair use fulsomely. While electing to refrain from moving forward with a flexible exception (a decision influenced by strong opposition from the creative industries), it publicly acknowledged the merits of a flexible exception; see Ian Hargreaves, Digital Opportunity—A Review of Intellectual Property and Growth, May 2011.
Meanwhile, in a gentle progression of events which began in 2002, Canada has quietly erased the rigidity of fair dealing and brought it very close to fair use. See Michael Geist, “Fairness Found – How Canada Quietly Shifted from Fair Dealing to Fair Use,” The Copyright Pentalogy: How the Supreme Court of Canada Shook The Foundations of Canadian Copyright Law (Ottawa: University of Ottawa Press, 2013). Another Canadian asset in terms of flexibility is its exception for non-commercial user-generated content; for details see Peter K. Yu, “Can the Canadian UGC Exception Be Transplanted Abroad?”(2014) Intellectual Property Journal 26 175-203.

[2] Calls to remove or lighten the prevailing structure of copyright are routine today; but those calls originated over one century ago. The presumption that monopoly rights were the best mechanism to support creative endeavor was so contentious that a Royal Commission ordered examination of the issue in the late 19th century. While the Commissioners ultimately kept the monopoly structure, opinions were diverse and heated; see Paul Saint-Amour, The Copywrights: Intellectual Property and the Literary Imagination (Ithaca: Cornell University Press, 2003).

[3] Meera Nair, “Fair Dealing at a Crossroads” in ed. Michael Geist, From Radical Extremism to Balanced Copyright—Canadian Copyright and the Digital Agenda (Toronto: Irwin Law, 2010) 90 at 91.

[4] Julie Cohen, “The Place of the User in Copyright Law” (2005) Vol 74 Fordham Law Review p.348.  The lack of genuine interest in users continue today; policy makers provide lip-service attention to the necessity of balance in the system of copyright but refrain from actively supporting it. See Michael Geist’s analysis of the difference between implementation of rights of owners and rights of users as drafted in the TransPacific Partnership (TPP) agreement.

[5] William Wordsworth, “My Heart Leaps Up When I Behold”, The Complete Poetical Works (introduction by John Worley) (London: Macmillan, 1888).

fair use denied — part II

For the first installment of this story involving Wildest Dreams and creativity-in-the-making, see Part I of fair use denied.

II. fair use — its origins and intentions

The contemporary bundle of rights comprising copyright is rooted in the customs of 16th century English publishing guilds. Their practices shaped what is often referred to as the first copyright act, the Statute of Anne. Entering into English law  in 1710[1], English colonies, of both loyalist and revolutionary tendencies, drew from the motherland when developing their own jurisprudence.

Eventually, the offshoot nations put their own stamp upon the system of copyright, including the exceptions within the system which  protect individual, unauthorized use of copyrighted works. While Commonwealth countries tended to maintain the English term and structure of fair dealing, in the United States, the exception evolved under the label of fair use.

Initially, fair use was applied only through common law practice; its genesis is usually attributed to Folsom v. Marsh (1841).[2] The dispute concerned two biographies of George Washington; in the process of adjudication Justice Story offered the following instruction to determine what is (or is not) fair use: “In short, we must often, in deciding questions of this sort, look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work.”[3]

This structure shaped fair use’s entry into American law in 1976.[4] Section 107 states:

… the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.[5]

The intent of the then-Congress was that fair use should retain the flexibility necessary to safeguard uses yet unknown. An instructional guide prepared by the Copyright Office of the Library of Congress explicitly draws attention to this necessity:

Section 107 is somewhat vague since it would be difficult to prescribe precise rules to cover all situations. … Section 107 makes it clear that the factors a court shall consider shall “include” [the four factors].  … [T]he terms “including” and “such as” are illustrative and not limitative. The legislative reports state that section 107 as drafted is intended to restate the present judicial doctrine; it is not intended to change, narrow or enlarge it in any way.[6]

According to a House Report about the 1976 Act, “… since the doctrine [of fair use] is an equitable rule of reason, no generally applicable definition is possible, and each case raising the question must be decided on its own facts (emphasis mine).”[7]

Furthermore, the four factors were to be considered in unity against the objectives of the system of copyright itself. Those objectives are clearly stated in the American Constitution: “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”[8]

But Progress takes root in Play. Part III continues tomorrow.

 

Notes

[1] 8 Anne c. C19 (1709/1710). It must be emphasized that for all the pathos (then and now) about copyright serving to protect starving authors, the statutory language was designed principally to keep order in the book trade. This period of time has received extensive coverage; Lyman Ray Patterson and Mark Rose are among the founders of this canon of scholarly work. See L.R.Patterson, Copyright in Historical Perspective (Nashville: Vanderbilt University, 1968) and M.Rose, Authors and Owners – the Invention of Copyright (Cambridge: Harvard University Press, 1993).

[2] Folsom v. Marsh  9 F. Cas. 342, (C.C.D. Mass. 1841) [Folsom]. However “… many of the points raised in Folsom were anticipated two years earlier by Justice Story in Gray v. Russell;”see William Patry, The Fair Use Privilege in Copyright Law, 2d ed. (Washington DC: The Bureau of National Affairs, Inc., 1995) at 19.

[3] Folsom at 348.

[4] That fair use eventually became a component within statutory law was not a foregone conclusion; the process took considerable time and discussion. In 1958, at the behest of the Subcommittee on Patents, Trademarks, and Copyrights, Alan Latman authored a study concerning fair use and raised two questions: (i) should fair use should be codified into law; and, (ii) if so, to what detail? His work was circulated to an advisory panel of nine copyright experts, eight of whom argued that fair use should not be codified with any attempt at specificity. See Alan Latman, “Fair Use of Copyrighted Works, Study No. 14,” Copyright Law Revision, Studies Prepared for the Subcomm. On Patents, Trademarks and Copyrights, Comm. on the Judiciary, 86th Cong. 2d Sess., (Comm. Print 1960).

[5] 17 U.S.C. § 107 (2000 & Supp. IV 2004).

[6] Marybeth Peters (Senior Attorney Advisor), General Guide to the Copyright Act of 1976 (September 1977), United States Copyright Office, Library of Congress, at 8:2,

[7] H.R. Report No. 94-1476, 94th Cong. 2d Sess. 65(1976). Also cited in Halpern et al, Fundamentals of United States Intellectual Property Law: Copyright, Patent, Trademark, 3rd edition (Wolters Kluwer: The Netherlands, 2011) p.18.

[8] U.S. Constitution, Art. I, § 8, cl. 8.

fair use denied — a five part series

Fair Use/Fair Dealing Week is upon us; there will be much lauding of these two exceptions over the next five days. Yet there remains one significant barrier to applying fair use in the United States. A barrier which does not arise in Canada.

I. fair use or privacy, but not both

Some time ago, a colleague came to me with a concern. A video created by her daughter, and posted to her YouTube channel, had been removed (due to an allegation of copyright infringement) and a strike had been marked against the account. The daughter, AL, is an amateur filmmaker. With patience and creative instinct, she crafts stop-action photography films. Some are set to music. In this instance though, the video removed was not one of those creations; it was a recording of a life event, with some popular music playing in the background. AL did not mind the loss of the video, but was deeply troubled at being labelled as a copyright infringer.

The question posed to me was: can anything be done about this?

Internet Service Providers (ISPs) operating in Canada need only inform their subscribers of copyright concerns. Canadian ISPs are not obliged to do the bidding of copyright owners who may or may not have a legitimate complaint. The difficulty with the American system is that their ISPs risk liability if they do not heed an allegation of copyright infringement. The system as a whole operates as guilty-until-proven-innocent, which is diametrically opposed to our Canadian presumption of innocent-until-proven-guilty. Moreover, to appeal a takedown/strike by YouTube, one must submit a counter-notification through YouTube to the very party that has claimed infringement. That these situations are not resolved by an impartial entity runs counter to a vital principle of the rule of law.

In response to AL’s distress at “having done something wrong,” I assured her that she did nothing wrong. Admittedly, it is easier to make that assessment in Canada; our Copyright Act has many options through which to protect unauthorized uses of materials, ranging from the threshold at which copyright takes effect (the substantiality of the reproduction), the allowance of incidental use, the ambit afforded by a large and liberal interpretation of fair dealing, and our express encouragement of usage of copyrighted works in the creation of non-commercial compositions.[1]  Nevertheless, American fair use has ample room to do the same. In fact, the United States Court of Appeals for the Ninth Circuit recently instructed copyright owners to consider fair use before issuing a take-down notice.[2]

But it remains that to argue against a takedown/strike, requires laying one’s identity bare. In this situation, I felt distinctly uneasy about drawing attention to AL’s portfolio. According to YouTube, multiple strikes could result in the loss of the account itself. This is not encouraging; the odds of satisfactory resolution appear low while the risk of scrutiny and punishment rises. I did not want to bring further condemnation down upon AL’s young shoulders.

So I did not suggest proceeding with the counter-notification. However, for all parents, in this five-part series I offer up my take on why such creations are law-abiding on both sides of the 49^th parallel, and, why our youth should be encouraged to make them.

As noted above, we have more latitude in Canada to  create and post such work. It has been suggested to me that arguing legitimacy under Canadian law is one way to dispute a takedown/strike notice. However, that approach has no guarantee of success anymore than claiming fair use. And since this situation is an outcome of American copyright interpretation, what follows is structured by American law and custom.

Establishing the facts

AL received a copyright strike in response to a video she created and posted to YouTube, describing an outing with a new friend. In the background of her narration and video, is a portion of the song Wildest Dreams sung by Taylor Swift. Of the total 37 seconds that were recorded, only 17 seconds are clearly audible when the video is played.

Many people are involved in the production of commercially released music including composers, lyricists, musicians and singers, all of whom will have some degree of rights (copyright or performers’ rights). The complex web of rights may be assigned through contract to a single entity; often the publisher assumes those rights. But, that is not necessarily always the case. And when a song is promoted through the use of a music video, even more people are involved, including directors and other performers, with even more rights to be sorted out.

But popular press tends to focus upon performers and (perhaps unintentionally) cultivate the impression that songs belong to their performer. For instance, coverage of the removal of Swift’s back catalogue from Spotify conveyed the impression that ownership was Swift’s and identified Big Machine Music as her label. The video of Wildest Dreams is clearly marked “(c) 2015 Big Machine Records, LLC.” Yet when the video was released, and criticized for romanticizing colonialism, the press conveyed the impression that the work belonged to Swift (i.e. see The Atlantic, the guardian, and CNN).

As to whether Swift has partial, or complete control, with respect to musical/artistic development, or management/enforcement of copyright, we do not know. The only information we have is that the complainant was ifpi, an international organization, based in the United Kingdom, which represents the recording industry.

It should be noted that the website taylorswift.com provides 30-second previews of songs performed by Taylor Swift, and the Wildest Dreams video is sanctioned by its copyright owner(s) to be enjoyed in its entirety via vevo.com. No doubt the first rebuttal to these facts will be that copyright law is rooted in reproduction, thus an authorization to listen is not an authorization to reproduce. But fair use beckons.

However, before one can employ fair use, fair use itself must be established. Part Two continues tomorrow.

 

Notes

[1] Section 29.21 of the Copyright Act (R.S.C., 1985, c. C-42) is an exception which protects amateur creators. I have written about this many times, for instance see poems out of other poems.

[2] Stephanie Lenz v. Universal Music (2015) D.C. No. 5:07-cv-03783-JF.  Although, drawing from AL’s situation, it appears doubtful that foreign entities will give much attention to an American court’s dictates.