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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.
The Church of Scientology, for example, is a copyright holder that is VERY determined (very high in the #1 factor). They have taken down MANY critiques that clearly fell well within any reasonable definition of "Fair Use." Go up against them and it won't matter what the "definition" of Fair Use is, they will still likely prevail in any real-world scenario (unless you are also VERY determined and VERY capable of defending yourself).
SJW: Someone who has run out of real oppression, and has to fake it.
So my Mickey Mouse / Prince hentei slash rape movie set in the Palladium universe using music from Metallica is perfectly legal. Sweet. Intertube fame, here I come!
Does this also apply if you want to use three consecutive characters from an associated press story?
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
Somebody post a copy of Windows XP: I want to memorialize and preserve it, and I'd like to launch a discussion about how MS should continue to sell and support XP.
I guess what I'm saying is, as nice as these Fair Use guidelines are, they're only as good as the lawyers that fight for them and the deep pockets that will fund them.
steampunk web design
is legal now?
Monstar L
You cannot apply fair use to something that has never been copyrighted. Claiming that a song is copyrighted, and therefore any tablature is copyrighted is absurd. First of all, you would have to charge almost every band that ever existed with copyright violation, since 99% of the live band music played on any given day is what we musicians call a cover song .
Either the entire music industry is illegal by definition, or replicating/mimicking a musicians work is not illegal. There is no such thing as a musician who has never played another musicians music.
The sole exception here would be that if someone scanned pages from Guitar Player magazine or some similiar magazine, and then posted the scan on the web, that would be a copyright violation.
And of course, we need a car analogy: Imagine if Ford tried to claim that any instructions explaining how to replace a gasket in their cars manifold was a copyright violation of their manuals.
Guns don't kill people; Physics kills people! - John Lithgow as Dick Solomon on Third Rock From The Sun
However, if you use the word "mashup" you're probably a jerk.
Claiming that a song is copyrighted, and therefore any tablature is copyrighted is absurd. First of all, you would have to charge almost every band that ever existed with copyright violation, since 99% of the live band music played on any given day is what we musicians call a cover song .
And thats what performing bands are paying royality fees for.
bickerdyke
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.
I know the site is USA-centric, but it's probably a good idea to specify the country in the summary. The above blanket statement is obviously not true, since, for example, the Canadian government just introduced DMCA-style legislation that would remove a lot of fair use. I'm certainly not as optimistic as the submitter.
I think the poster was trying to point out SCOTUS, which in the end of any lawsuit involving this will be the final naysayer to free use. Although, there was a different time...
...and it should be known by now
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.
I think TFA is referring to mashups in sense of music and video content combined in creative ways, rather than in the sense of software systems that pull data from other systems and combine them.
It is legal for a live band to perform cover songs at a venue if the copyright holders of the music are members of ASCAP/BMI, and the venue pays its yearly royalties to those organizations.
Absolutely.
Kevin Smith on Prince
It's not so much the duration sampled as the use to which you are putting the content that's important.
Are you using the sample because it's a convenient way to get a nice sound (not fair use) or because the original work it came from is important to the meaning of your new work (possibly fair use)?
...since 99% of the live band music played on any given day is what we musicians call a cover song.
And that's why the club in which the band is playing pays licensing fees to a Performing Rights Organization, and those fees transform into royalties for the holders of the copyrights on the songs played, assuming the band reports their set list to the PRO, which they should, as they will also get paid royalties for playing their own songs.
By the way, if a band is recording a cover song, they first have to pay to get a license for the mechanical rights to the song.
Nevertheless, copyright on tablature is an interesting problem. There's no doubt that music is protected by copyright the moment it is recorded. Transferring that music to a different medium (ex. CD to tape) is an infringement of copyright. But what about transferring it to a completely different medium (ex. CD to paper in the form of tablature)? Does that really constitute a copyright violation?
Well, actually, thanks to the reality of publishing rights, it does constitute a copyright violation. Basically, the law attempts to make it possible for musicians to make money selling their music in other forms, such as releasing books of tablature.
Personally, if a website posted tablature of my songs, I wouldn't be at all concerned. Same goes for lyrics. But, then again, I also wouldn't be too concerned over MP3s of the actual songs being distributed. So I guess I'm a little more easy-going on the copyright issue than a lot of other musicians are. My preference is to put all songs, lyrics, and tablature on the band's website so no one needs to go looking for it anywhere else.
"You cannot simultaneously prevent and prepare for war." -- Albert Einstein
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.
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 [...]."
First, off, whether or not things are still bad, trending towards a broader definition of fair use is still good. Not only in-and-of-itself, but it provides another wedge to start undoing all the other bad stuff and overcoming the factors that lead to abuse.
Second, let's not make the mistake of focusing too much on hosting and take downs. Maybe the RIAA can still force a take down of a mashup, but if the accepted law is that my copy of the Grey Album is legit, my iPod is less likely to be seized at the border.
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.
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...
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
Which would be "informative", if not for the fact that performing bands are doing no such thing. If you don't believe me, go to your local night clubs and talk up any of the performers. Ask them who they pay royalties. They will look at you like you have three heads.
Guns don't kill people; Physics kills people! - John Lithgow as Dick Solomon on Third Rock From The Sun
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.
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?
Usually the house pays the fees. Go to your local night clubs and ask the manager who he pays royalties. If he looks at you like you have three heads, you could probably make some money turning them in.
Give me Classic Slashdot or give me death!
You can't just copy it word-for-word. In other words, while the facts aren't copyrighted, their organization and expression in a fixed medium (the shop manual) is.
So shouldn't the fact that most of these (usually user-submitted) tabs on most tabs sites are either greatly simplified or completely wrong be their saving grace? I'd call it paraphrasing the work at best.
While you are correct in that many venues do not pay the ASCAP public performance fee, you would be mistaken if you think that ASCAP doesn't pay attention to which venues that pull in big revenues aren't paying that fee.
ASCAP's position on the whole thing.
By and large, the fee is affordable for most non-dive venues, and gets paid as a matter of doing business.
The commonly used language "make money off..." (as the post was written) implies a sort of behavior of taking advantage, some sort of magical money-making simply by having/using/exploiting some particular thing.
Absent is the notion of making a genuine creative effort. Absent is the additional value created. Particularly absent in "make money off..." is the work of marketing and selling the product or service to customers/clients who are happy to pay for the value you've added that they desire.
Sure, there's plenty of much worse crap every day in slashdot "articles", but the phrase "make money off" applied to actual, genuine, bona-fide creative effort to make and market something valuable.... I just wish a better phase could be used.
PJRC: Electronic Projects, 8051 Microcontroller Tools