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

Why any attempt to define "Fair Use" is pointless

[elrous0]

You can try to define "Fair Use" all you want to. But any definition is utterly meaningless in the real world because your rights are entirely and completely dependent on a number of factors that have nothing to do with any attempt to define the term:

1. The determination of the copyright owner to take you down (how far they're willing to go)
2. The determination of your host to refuse their attempt (if you're on a site like Youtube that takes down videos at the slightest complaint, this is pretty much 0)
3. Your determination and ability to defend yourself to your host and in court (i.e., do you have the financial resources and time to defend yourself and are you willing to do so?)
4. The quality and disposition of the judge in the case
5. Your ability to withstand additional harassment from the copyright owner even after the initial case (process can start over at this point, depending on the factor #1)

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).

Alright!

[Anonymous Coward]

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!

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.

Step 5!

[muellerr1]

FTA:

FOUR: Reproducing, reposting, or quoting in order to memorialize, preserve, or rescue an experience, an event, or a cultural phenomenon
FIVE: Copying, reposting, and recirculating a work or part of a work for purposes of launching a discussion

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.

Re:Step 5!

[Darkness404]

Exactly, or ROMs for old systems that the companies have either gone broke or they aren't making any money off of them. The difference though is, it is becoming increasingly not, "is this legal" but rather "does anyone care?".

So my Harry Potter Cho Chang sex video

[antifoidulus]

is legal now?

but...

[owlnation]

"Your Mashup Is Probably Legal"

However, if you use the word "mashup" you're probably a jerk.

Re:Guitar Tab doesn't qualify as fair use because

[bickerdyke]

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.

Re:Words too?

[je ne sais quoi]

As far I can tell, the AP hasn't removed their takedown notices, but according to the guy who runs the blog, one of their VPs is putting on a damage control PR campaign. link Legally, it doesn't seem they have much of a foot to stand on and they seem to know it:

It doesn't appear, however, that AP is continuing to pursue its "hot news" claim against Drudge Retort, and for good reason. ... in National Basketball Ass'n v. Motorola, 105 F.3d 841, 844 (1997), one of the few cases to address a "hot news" claim, the Second Circuit set an exceptionally high standard for such claims to be viable, requiring, among other things, that the information be time-sensitive; the defendant be in direct competition with the plaintiff; and the continued publishing of the "hot news" would so reduce the plaintiff's incentive to produce the product or service that its existence or quality would be substantially threatened.

source.

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:Guitar Tab doesn't qualify as fair use because

[bitrex]

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.

Re:Guitar Tab doesn't qualify as fair use because

[Rary]

...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.

Re:...in which country?

[mapsjanhere]

The USA really needs a "Strengthening The Fair Use" -act.

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....