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The TOTEM Poll: Totally Off Topic, Everything Media
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Old May 28th, 2011, 12:48 PM   #1
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"Fair Use" - and a recent case. Read up.

My wife is an IP attorney - she deals with both sides of this issue a lot. She recommended this link to read for all those involved in digital arts. Although this case deals with photographic images - It's a good review of the approach to the law.

NO FAIR USE: PRINCE LOSES BADLY | Art Law Blog
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Old May 28th, 2011, 01:08 PM   #2
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Re: "Fair Use" - and a recent case. Read up.

Most informative... thanks for posting this, Richard!
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Old May 28th, 2011, 03:05 PM   #3
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Re: "Fair Use" - and a recent case. Read up.

Interesting, though I'd say the only thing it "clarifies" is how subjective SOME elements are when this becomes a matter of litigation. This one looks pretty much like outright intentional theft for financial gains... and fairly blatant at that.


When the question comes up here, it's often related to music attached to video of an event.
Q1 i.e. the "purpose and character of the work" is a work for a limited audience interested in THAT EVENT, not for "public consumption". Maybe some "wiggle room"?

I don't see a question in Q2, the original work is copyrighted... not even sure there would be any question THERE, in any circumstance.

Q3 if you use a piece for a "sound track", you've used the whole thing...

From a practical standpoint the question I find MOST interesting is:

Q4 - Harm to the Original Owners Market... while (as some here argue) a musical addition adds value to a video it is incremental at best, it in all likelyhood does NO harm, and perhaps even enhances the value of the original owners work in the marketplace... That "legal question" leaves a LOT of holes to drive a truck through for the small videographer, IMO!
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Old May 28th, 2011, 03:31 PM   #4
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Re: "Fair Use" - and a recent case. Read up.

Lest we think this is a "little" issue...

Open Channel - US goes on offense against digital piracy

No less than "Homeland Security" is on the hunt for IP theft... when they get done with the medium fish (the big ones never get nailed, like eBay allowing a channel for lots of knockoff stuff), the "little fish" should be wary...
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Old May 29th, 2011, 09:18 AM   #5
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Re: "Fair Use" - and a recent case. Read up.

Dave, not sure why you put 'legal question' in quotes. It is in fact, part of the process.

Enhancing the value is not a defense. "We made it famous" doesn't diminish the notion that the contributions value has been affected.

For instance, suppose a picture or video or piece of music is picked up by the infringer. Maybe they got a hold of it from some obscure source. Maybe it had limited circulation - whatever. The infringer 'makes it famous' by attaching it to their project and putting it on YouTube or releases it in a mainstream film.

Lets say the YouTube gets a million hits. Nobody made any money off of it. However - the argument could be made that the material HAD value that has been diminished by the free distribution. Perhaps they had plans for a licensing agreement with someone else. Perhaps they had marketing plans that would have brought in tons of money - but now the piece is 'out there' - and it's attached to YOUR project. However famous, or infamous it might be. "Everybody knows about it, now you're famous and can make money" is not a defense.

In the second case - it is used in a mainstream film/project. This is the sort of project that NORMALLY pays for material. Just because the infringed material gets exposure, and the artist perhaps gains notariety that they may later use for their own benefit - it's still not a defense for theft of intellectual property. That notariety would have come from the infringer paying for the use in the first place, so the value was diminished.

Note - these issues don't apply to news gathering, and can be very tricky in documentary work.
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Old May 29th, 2011, 04:31 PM   #6
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Re: "Fair Use" - and a recent case. Read up.

I used quotes to set the term apart - I understand that during the litigation process, it's very common for judges at the Appellate and Supreme Court levels to create a series of questions that will in theory create a framework by which they can adjudicate a given case, and they hope it will then be an adopted standard for future cases. Thus a "legal question" is of a different nature than a "simple" question - it holds a certain weight that a question by you or I would not, however good our questions might be <wink>.

And as you illustrate, a series of legal questions may or may not entirely address the gamut of potential scenarios. I was thinking a widely distributed piece of music being used in a limited distribution event video... by turning that around, you have another scenario completely. Value and damages are highly subjective to evaluate, and this is one of the nightmares of any involvement in litigation - often one side claims huge figures with little or no backing other than speculation, while the other claims little or none... In reality there's something in the middle in quite a few cases.

In the one you posted, it's pretty clear to me that the infringers must divest their profits, as the infringement was both blatant, knowing, and intended to profit from the use of the original works, albeit a derivation thereof.

Problem is that extreme, eggregious cases often are the ones that set the framework (precedent) for later rulings, many of which are NOT so extreme...

I don't think anyone is OK (other than a criminal) with counterfeit operations banging out huge volumes of knockoff CD's/DVD's (not to mention memory cards, batteries, handbags, shoes, etc, etc...) to be sold on eBay, street corners, and back alleys. I disagree strongly with "file sharing" type schemes, which dilute and devalue the market for the IP directly.

BUT, if you look towards the bottom of the article I posted, you'll see where the ease of digital copy/distribution has left a moral quagmire... I know more than a few "youth" who share the mindset that "how can it be wrong, when it's so easy"... Definitely still WRONG. but how many of us made a casette copy of some LP we just bought, and let a friend "borrow" it? On that scale, little or no harm occurred, and arguably it helped artists get exposure. Problem is now if one chooses to "share", it's with not one or two friends, but potentially 100,000!! Whoops.

I argue that there are a small subset of scenarios where the "use" is akin to media shifting, or "live capture" (sort of a variation of "incidental"), or that situation where you let a friend "borrow" and check out your media... and under those and only those situations might there be a loophole that would be reasonable. Once the digital tiger is out of the box though, it doesn't take much to cross the line into "major" infringement.

There's another current thread here asking about videographers using music on videos on their sites... showing the practical side of this question - by "publishing" and "distributing" on a "worldwide" stage, they are by definition "major" infringers.
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Old June 3rd, 2011, 06:09 PM   #7
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Re: "Fair Use" - and a recent case. Read up.

Just to wax philosophical about this stuff for a second, one of my most powerful lessons about copyright issues came to me long ago in a very personal and very weird way.

Decades ago I was in a amateur video group and watched a piece by a nice retired guy that synced Louis Armstrongs "What a Wonderful World" with some pictures. Yeah, it's clear he had no legal right to do it but it was small time, it was free, and he didn't mean a bit of harm. He just wanted to make something "artistic" and satisfy his personal need to create.

We all would probably support that desire and have shared it from time to time.

The problem is that what he synced to that lovely tune were graphic images of the Holocaust.

Talk about jarring. I bet if some dictionary publisher ever needed a picture to illustrate the word AGAST - a snap of my face during that movie would probably work. It was a HORRIBLE experience.

But what really lasted with me is how that incredibly ham-fisted mash-up instantaneously linked and CHANGED my feelings about THE SONG. Up to that moment I, like legions of others LOVED that song. After that 3 minute movie, I couldn't even hear the opening notes without having my brain infected with pictures of broken bodies.

This particular derivative work literally RUINED the very nature and value of the original for me in moments. And the effect was irreversible and nearly permanent.

So when I hear people moan about why licensing stuff is so difficult and whether there should be a requirement for artists to make their work available to others for use at "affordable fees" and through simple systems - I remember Mr. Armstrong's lovely song.

Sure I'd like the wedding folks to be able to legally use a pop tune for Bob and Jane's wedding without jumping through rings of fire. But maybe the person who created that same pop tune would NOT appreciate it being used for that wedding.

Remember how Springsteen got miffed and pulled out the lawyers when "Born in the USA" was used in a campaign ad? He felt that he needed to protect the integrity of his song by not letting it become a political motivation tool. And any system that allows use without a "case by case" review, inevitably leads to situations like my being stuck in a room listening to Louis Armstrong and knowing that I can NEVER enjoy "What a Wonderful World" in the same way again.

Dammit.
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Old June 5th, 2011, 12:02 AM   #8
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Re: "Fair Use" - and a recent case. Read up.

Excellent example Bill, thanks for the post.

I think it illustrates the power of linking a song to visuals.

Another, albeit less traumatic example, for me - is the opening bars of "The Blue Danube".

I will forever see a space station. Doesn't matter where I am, or what the context is, that music and Stanley Kubricks 2001 are for me - inseparable.
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Old June 5th, 2011, 02:17 PM   #9
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Re: "Fair Use" - and a recent case. Read up.

Yep, excellent example, probably should be a sticky, with "why copyright is important"!

For the myriad "innocent", innocuous, seemingly harmless "uses", there is that example that makes it quite clear that an artist must have the absolute right to determine the use and whatever "attachment" may go with it of their work.

I suspect that in most cases, the "use" (such as in wedding videos) is truly "harmless", and most artists would be OK with the "use", but they have to protect their IP or lose it, and unless a method is carved out to make limited licensing possible for certain uses... it's very problematic.

The point being made of how the audio and video can become permanently "linked" in the human mind certainly illustrates the challenges we face in digital media - those "1's and 0's" can end up piled up in drek or in powerfully moving ways... in reality, most of us would prefer to be associated with quality, period!
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Old June 20th, 2011, 02:41 PM   #10
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Re: "Fair Use" - and a recent case. Read up.

Yep. Visuals, and especially jarring visuals can completely and permanently alter the way a song is perceived.

"Stuck in the Middle with You" still makes my right ear twitch.
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Old June 26th, 2011, 11:04 PM   #11
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Re: "Fair Use" - and a recent case. Read up.

Yes, I vote for making this a sticky, and making it a sticky in every other appropriate forum. Myself, I don't explore other forums as much as I should, and others probably don't either.
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