Your Mashup Is Probably Legal

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.

Comments

Oh oh, TFA leads to...

[sm62704]

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?

Re:Oh oh, TFA leads to...

[mea37]

"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.

Re:Why any attempt to define "Fair Use" is pointle

[Digital Vomit]

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.

Re:Why any attempt to define "Fair Use" is pointle

[rgviza]

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

Re:Why any attempt to define "Fair Use" is pointle

[DrMaurer]

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....