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Your Mashup Is Probably Legal

Posted by timothy on from the oh-thank-you-2-live-crew-thank-you dept.

TV Barn writes "We've been conditioned to think that if you pull something off the web and use it, you're committing some sort of copyright infringement. But increasingly, the law is moving in the opposite direction. Provided you are making a truly new use of the content, you are free to make money off those copyrighted images and video and sound. On Monday the Center for Social Media released 'Code of Best Practices for Fair Use in Online Video,' which reflects the latest changes in copyright law that has expanded the understanding of fair use to include 'transformational effect.' Already Miro has endorsed the guidelines, as have several public broadcasters. The Center has a good track record, having issued guidelines for documentary filmmakers that have greatly reduced copyright claims in that area. The website has plenty of resources for mashers and mixers; I interviewed the Center's director in this podcast that summarizes the most important findings of the report." On the other hand, says reader kaliphonia, your guitar tablature sites may not fare so well.

17 of 149 comments (clear)

  1. Words too? by pzs · · Score: 3, Interesting

    Does this also apply if you want to use three consecutive characters from an associated press story?

  2. Oh oh, TFA leads to... by sm62704 · · Score: 4, Interesting

    a law school. It would have been nice to know why tab sites aren't covered under fair use. From my admittedly ignorant reading of the pdf (IANAL so I am in fact ignorant) it looks like the article says exactly the opposite of what TFS says.

    I know that often the law makes little or no sense, but after all, unless the tablature has been written down then your putting it on paper (or computer screen) is a new work.

    Can someone help alleviate my ignorance here?

    --
    mcgrew's razor: Never attribute to stupidity that which can be explained by greedy self-interest
    1. Re:Oh oh, TFA leads to... by actiondan · · Score: 3, Interesting

      Fair use applies to creative reuse of content.

      Transforming content from one form to another is not necessarily considered creative. In the case of guitar tabs, I guess it isn't.

      If you painted a canvas that included graphic representations of the tabs for a song and the use of those specific tabs had some connection with the theme of the painting that was important to the meaning of the overall piece, I would guess that fair use would come into play.

    2. Re:Oh oh, TFA leads to... by mea37 · · Score: 4, Interesting

      "unless the tablature has been written down then your putting it on paper (or computer screen) is a new work"

      Probably not. It's a new representation of an old work. Copyright isn't attached to a specific representation of a work (though I believe it does require that the work be fixed in some tangible representation).

      Fair use is pretty much inherantly a murky area of copyright law. The actual language in the law just sets a list of criteria to be weighed. It doesn't say how to weigh them, except that it says that none of the criteria alone is controlling. The introduction to TFA notes that this is a guide to interpret the law based on experience and opinion, but "This code of best practices does not tell you the limits of fair use rights." So it is very possible for two identical cases to be resolved in contradiction to one another.

      The argument with mashups seems to be that the addition of new creative content justifies the use. There will always be a blurry line there. (If I juxtapose two copyrighted works and add nothing else, but the juxtaposition is itself meaningful, is that fair use? Who decides if it is meaningful, or if I'm just dodging copyright by slamming two works side by side?) The guidelines in TFA seem to acknowledge this, and are not nearly as one-sided as the slashdot headline/summary suggest. (Surprise, surprise.)

      But when you transcribe tab, you're not adding any new content. You're just translating from one form to another. The translation process may be difficult and require skill, but it's still not a creative process. I'd like to think tab sites were legal; I used to use them quite a bit myself. But realistically, I can't see how they would be.

    3. Re:Oh oh, TFA leads to... by torkus · · Score: 2, Interesting

      I'm half playin devil's advocate here...so take that into consideration.

      One could consider tab to be a description of music. After all, you can't listen to tab directly and get the actual music. I'd compare it to a sportscaster giving a blow-by-blow of a hockey game. If the recording of the game was copyright does that mean a sportscaster needs specific permission to describe the game step-by-step? Yes, I know they work for the arena and are hired to do their job but that's besides the point. What if joe-neighbor watched the game and posted a blog online of step-by-step action after the fact?

      It's not the actual work, it's not identical to the original and you can't derive the same exact thing from it. After all, I play guitar but metallica isn't going to sub me in for one of their shows and call it the same thing. :)

      --
      You can get rich if you own a politician, but you have to be rich to buy one in the first place.
  3. Re:Why any attempt to define "Fair Use" is pointle by Digital+Vomit · · Score: 4, Interesting

    Exactly. As long as the justice system remains a for-profit industry, you really have far fewer rights than you realize.

    That is, unless you are super-rich.

    --
    Modern copyright is theft of culture from everyone and it retards the progress of the useful arts and sciences.
  4. What would Viacom do? by yuna49 · · Score: 3, Interesting

    While I admire the effort these academics have invested in this document, it might have more clout if there were a few names from the content industries on the list. Their interpretations seem reasonable on the face of it, but I wonder if Viacom's or Elektra's attorneys would agree with their views.

    I note that they make the point repeatedly about how fair use requires a transformation of the copyrighted material being used, and that the use of entire works generally has less protection than excerpts. Still I don't think I came away knowing whether making a music video from a complete song would qualify as fair use or not. On the one hand, the original work might be "transformed" by adding the video component, but the song itself was still used in its entirety. A mix of different video clips backed up with excerpts from a variety of different songs probably has a better chance at a fair-use defense.

  5. AMVs/Shorts Collections by Xtense · · Score: 2, Interesting

    So how this affects the legality of AMVs or collections of 30sec or less shorts in their style? The latter case is of particular interest to me, since I've made one, uploaded it to Youtube and it got deleted "by request of the music publisher". After that I lived in a bit of insecurity that my efforts at some demoscene-oriented jokes will be the financial death of me.

    (Though admittedly, it was a bit crap, so I see reason in there ;) )

    --
    "We are the music makers, and we are the dreamers of dreams [...]."
    1. Re:AMVs/Shorts Collections by FlyingSquidStudios · · Score: 2, Interesting

      Remember that YouTube is a private company. They can remove content at their discretion whether it is fair use or not.

      --
      http://twitter.com/OLDTELEGRAM
    2. Re:AMVs/Shorts Collections by purplepolecat · · Score: 2, Interesting

      I have also had some of my AMVs removed or restricted by YouTube.

      Although AMVs probably constitute fair use, it's a moot point in the case of YouTube because they (not you) are making money from hosting your clip, so they (not you) are legally vulnerable if the original copyright holder comes knocking. This is why their TOS stipulates that YOU must own the copyright to all the material you post.

      Fortunately most anime publishers recognise AMVs as free advertising, and leave it alone.

  6. Re:Why any attempt to define "Fair Use" is pointle by rgviza · · Score: 5, Interesting

    I was about to say the same thing...

    IANAL, but have an entertainment attorney (since I am a publisher/engineer/producer in my spare time) who made a very important point:

    You can make fair use of content, just make sure you have the bank account to fight them when they take you to court. The golden rule applies. You can get sued for using a kick drum sample to make an original beat for a new song. Will you get sued for this?

    Depends...

    Would they win?

    Not if you can outlast them financially in court and have the better attorney who can prove that you are making "fair use" to whatever judge is on the case.

    It's a lot easier to pay $.99 to license the kick drum sample from a service that sells sound, as long as you keep your reciept:D

    -Viz

    --
    Don't kid yourself. It's the size of the regexp AND how you use it that counts.
  7. Re:Guitar Tab doesn't qualify as fair use because by HikingStick · · Score: 3, Interesting

    Tab is covered by copyright because the song composer owns the copyright on the specifc arrangement of notes represented by the tablature.

    As to cover tunes, they, too, are covered by copyright (as is any music used in performance settings)--a performance copyright. If you buy some of the large and extremely expensive books of cover tunes, they often include limited performance rights (thus the tremendous cost). One of the reasons a lot of coffee shops have dropped or altered their musical programs is that lawsuits were threatened over local musicians who came in and played well-known tunes without having first secured performance copyright permissions. Of all copyright law, that's one to which I can best relate, since I am a songwriter when not bogged down as a sysadmin. Other musicians should not be able to take and use my songs (and make money doing so) without fair compensation to me (I manage my own copyrights, and do not require rediculous licensing fees for their use). Let them either pay a reasonable amount to use a piece in their performance, or let them write their own music.

    Now, for mashups, people should be allowed some use of protected pieces, provided that economic gain is not the primary purpose of the mashup. If someone wants to put together snippets of their 10 favorite Devo songs while displaying a collage of abstract watercolor paintings, let it be. Now, if someone wants to do the same and sell the resultant media on a late-night television infomercial, then let them pony up some licensing cash (or revenue sharing).

    --
    I use irony whenever I can, but my shirts are still wrinkled...
  8. Re:Why any attempt to define "Fair Use" is pointle by DrMaurer · · Score: 5, Interesting

    Scientology has, IMO, pushed a little hard on the legal end.

    Their recent attempt to have Gawker Media remove an edited interview of Tom Cruise failed. Gawker's direct response was to cite fair use. See the thread on Gawker.com from January 15th: "Tom Cruise Indoctrination Video." There are follow-ups on Chilling Effects for the Cease and Desist Letter. Gawker's response to it...etc. etc. Basically, you can still see the thing.

    Then some people on 4chan seem to have started the whole Anonymous protests as a direct result of Scientology's attempts to silence Gawker. Those protests have waned recently, but were a definite sign that people do notice this stuff and take it seriously.

    The definition of Fair Use is a legal one; yes, the pocketbook factor will always limit the direct legal rights you theoretically have, but if you can get a million people in masks out into the streets....

    --
    Dan
  9. "transformational" by TV+Barn · · Score: 2, Interesting

    Samples are different. There is a whole different wing of case law for samples. Also, fair use is not just about commentary. The key word is TRANSFORMATIONAL. I shoulda linked to my story as well, which discusses that aspect a bit.

    But yes, if you can show that you are taking something and making something significantly "new" from it, fair use applies, whether it is commentary or a dance remix of O'Reilly's rant.

    But the artist who did that composed his own music. If you just sample, you're taking music and making .... music. Not transformational.

  10. Re:Why any attempt to define "Fair Use" is pointle by tepples · · Score: 2, Interesting

    It's a lot easier to pay $.99 to license the kick drum sample from a service that sells sound, as long as you keep your reciept:D

    Can you recommend a few good sample libraries whose TOS doesn't conflict with releasing the end product under, say, the Free Art License, the Creative Commons Attribution License, or the Creative Commons Attribution-ShareAlike license?

  11. Such misunderstanding about copyright by Anonymous Coward · · Score: 1, Interesting

    "Provided you are making a truly new use of the content, you are free to make money off those copyrighted images and video and sound."

    Copyright law has nothing to say about making money. If you can make a billion dollars off someone else's IP without copying it then you are already free to do so. Conversely, copying someone else's IP without making a dime is not legal. The concept of "commercial use" only comes up as one of the tests related to fair use determinations, and it is not a binding factor.

    A case in point is Google News. What they are doing with the content is allowed by copyright law - they are displaying very short summaries that link to the original articles. The fact that they make a bazzillion dollars off of it doesn't magically run them afoul of copyright law. There is no protection against someone else making a ton of money off of "your" material and refusing to give you any of it. Get over it.

  12. Re:Alright! by Anonymous Coward · · Score: 2, Interesting

    Prince is back to being Prince, he only changed his name to break his record deal with Sony.