Two Copyright Scenarios with YouTube
Conrad Askland – 26 January 2016
I would like to look at two similar uses of copyright on YouTube that had two different outcomes. Both samples are highlighted at TechDirt.com.
Sad State of Copyright: Guy Using Short Clips of Music In Viral Videos Accused of Infringement.
Steve Kardynal is a popular maker of funny online videos. One of his series is called “Songs in Real Life” where every so often the dialog is a short 3-10 second clip from a popular song.
A year after it was posted he received a takedown from Sony. Knowing that three strikes meant he would lose his account, he set his other songs to private to avoid getting any other strikes. So, essentially he had to shut down his account until he can figure a way around it. I went to view secondary uploads of his videos but even those were set to private. So it would look like Sony “won” and Steve Kardynal was shut down as a derivative artist in this manner.
The tactics Steve Kardynal used was to assume that using short clips was not copyright infringement. From personal experience I know many people also think this. For years I have heard rappers say “it’s not copyright infringement if you sample less than 3 seconds”, and I also consistently hear live performance techs say “it’s not copyright infringement if you use less than 30 seconds of a song”. Both of those statement are incorrect according to copyright law.
Was Steve Kardynal’s approach successful? In the long term, no. What could be done to increase his effectiveness? First of all, he could get permission to use all of those sound clips. That approach is not really feasible in the real world. The second approach is that he could record his own original music samples. But then it wouldn’t have the same comedic effect as using famous songs.
The aforementioned is precisely why this is copyright infringement. Steve’s material would not be funny without the famous songs. The success of his product was dependent on using (stealing) other people’s work without permission. I personally don’t ascribe to the statement that “using the clips in this way does not degrade the original songs in any way” as a defense to this use. Steve’s use was copyright infringement.
As a creator of comedy products, I agree that this sucks not to be able to use material in this fashion. As a holder of many copyrights, I am thankful that people cannot just used my work without permission to make money off of my work.
Stephanie Lenz v. Universal Music Corp.
On February 7 2007, Stephanie Lenz videotaped her young children dancing to the song “Let’s Go Crazy” by Prince. The video is 29 seconds long.
On June 4, 2007, Universal sent a takedown notice to YouTube pursuant of the Digital Millennium Copyright Act (“DMCA”). The video was taken down and Lenz responded with a challenge of fair use and the video was reinstated. In 2007 the video had more than 593,000 views on YouTube.
In September 2007, Prince stated publicly his efforts “to reclaim his art on the internet” and threatened to sue internet service providers for infringement on his music copyrights. Lenz defense claims that Universal only went after her to appease Prince. Universal says that is not true, they are just protecting their copyrights on the behalf of their artists.
One of the main arguments of the case was how much burden should be put on copyright holders to police and determine “fair use”. Universal claimed that because of the large library they hold, and the large amount of that library that is used by the public on YouTube, is not feasible to spend time determining fair use of each and every video. The current policy is to use audio matching technology to automatically submit a DMCA to copyright infringement and takedown. Lenz’ attorneys argued that many innocent people, that is people that fall under “fair use”, are being caught up in wrongful DMCA takedowns. Universal argues that although this may be true, people have the right to contest a DMCA to show their fair use practice. So Universal’s position is that this scenario allows copyright holders to automate the infringement process to alleviate the heavy and costly burden of policing copyright, while still giving individuals the opportunity to contest those DMCA submissions.
The actual trial has yet to go to court. The latest article I could find, from Sept. 14, 2015, says that this case has finally been cleared to proceed to a court case.
It is clear that the writer of the article, Mike Masnick, feels strongly that Universal’s use of the DMCA in this case is a choke-hold to free speech and creativity.
Again, I guess I am “that guy” who sides with the corporation. My question is: Would this video had been as popular if there was no music playing? If not, then why is it justified to use this song without permission? The music is part of what made this video popular. “The Music” is someone else’s work, their art, their life’s passion. That life’s work deserves respect.
As much as I like watching funny videos on YouTube, I personally hope that the DMCA process is upheld. I think it’s reasonable. If anything, it could use some adjustment but that can happen naturally over time as real world use becomes evident.
As of January 20, 2015 the Lenz “Let’s Go Crazy” video has 1,812,616 views.
Earlier in my article I mentioned that I consistently hear “if you sample 3 seconds of less it’s not infringment” and “if you play less than 30 seconds as an underscore it’s not infringement?” And I have heard those consistently for over 25 years. Well, when I looked up the Lenz video “Let’s Go Crazy” and found a discussion of the copyrights and actually saw these comments:
*begin comments*
Eric Ek: My understanding was that even if you change it in the slightest bit whether it’s the tempo, or the frequency, it’s no longer the same copyrighted recording and you can use it.
informationwarfare: +Eric Ek Yea, it’s more difficult for the bots to track it that way. That isn’t practical if you are speaking in a video and music is playing though.
ShieldCraft: +informationwarfare That might be the reason why some videos use high speed versions of popular songs
informationwarfare: That’s the reason yea.
GoddessStone: Prince has officially become a loser in my eyes…and that’s a shame. A looooong time ago I heard him say something about his music coming from “The Creator” or something akin to that. What ever happened to “give freely that which was given to you freely”? What a creep…the “Prince of Ego”.
*end comments*
Those are comments about an artist’s representative protecting their copyright. I think it’s horrible that people don’t respect that.
So looking at the two scenarios of Steve Kardynal’s “Songs In Real Life” videos and Stephanie Lenz “Let’s Go Crazy #1” video, we see that both of them used copyrighted sound recordings in their videos. I also hope that we can all see that those music recordings are a large part of what made the videos popular.
The difference is that Steve Kardynal chose to shut down his video series on his channel, whereas Stephanie Lenz chose to fight the DMCA removal notice issued through YouTube.
Both scenarios make sense to me. Steve Kardynal has a whole series of similar videos and has put considerable time into their creation. The thought of losing all of those would be frightening to any creative artist. In the case of Stephanie Lenz, she really has nothing to lose. It’s a very amateur home video that she has very little time invested into. For her the lawsuit is probably very exciting. She has nothing artistically to lose.
The jury is out on whether either of their tactics were successful. If Steve Kardynal let’s sleeping dogs lie, then I guess he is the loser for giving up his comedy web series. If Stephanie Lenz wins her court case, then there will be big changes with the DMCA process. But if she does win, I think that could make a large group of artists the “losers” for not being able to easily police their copyrights.
I have had similar situations in the past where I have been faced with a legal situation and had to make the decision whether to stand down or stand up and play hard ball. After getting legal counsel on those issues, it takes a lot of introspection and thought to make the decision either way. I commend both Stephanie Lenz and Steve Kardynal on their decisions on how to proceed personally. I know it’s not an easy decision and there are many variables to take into consideration.
On a closing note, it is exciting to see how copyright is evolving in the digital and online worlds. We will learn by trial and error and make adjustments as we go along. Two things will always be open to interpretations: Art and Law.
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1 TechDirt.com – https://www.techdirt.com/articles/20120427/18013118692/sad-state-copyright-guy-using-3-to-10-second-clips-music-viral-videos-accused-infringement.shtml
2 Stephanie Lenz v. Universal Music Corp. – Aug. 20, 2008 – Court Case – https://scholar.google.com/scholar_case?case=2209471029398314909&hl=en&as_sdt=2&as_vis=1&oi=scholarr
3 TechDirt.com – Dancing Babies, The DMCA, Fair Use and Whether Companies Should Pay for Bogus Takedowns – https://www.techdirt.com/articles/20150710/12231731617/dancing-babies-dmca-fair-use-whether-companies-should-pay-bogus-takedowns.shtml
4 TechDirt.com – Big, Confusing mess Of A Fair Use Decision Over DMCA Takedowns – Mike Masnick – Sept. 14, 2015 – https://www.techdirt.com/blog/?tag=stephanie+lenz
5 YouTube.com – Let’s Go Crazy #1 video by Stephanie Lenz – https://www.youtube.com/watch?v=N1KfJHFWlhQ
6 YouTube.com – Comment Section from: https://www.youtube.com/watch?v=WZSlOUYkAv4
Thank you, Conrad, for your work to discuss a complex, current topic.
Music is an integral part of our lives. We want to share it and build on it, rearrange it and derange it.
I love satire and there needs to be some way to allow for that while still upholding the copyright for the originators as well as the work of the satirists.
As a songwriter, I know the effort that goes into creative work. If someone wants to use my work for free in the spirit of sharing what was given by the Creator, just send me a check for my rent and utilities, a little something for food, and business expenses, and I’m good with that.
Somehow in all of this we need to find ways to pay and support our creative artists who make life worth living.
Hi Wendy,
Good to hear from you and I’m tickled that this topic is of interest to you too.
In general, I seem to side on the corporate or legalistic side of things when it comes to copyright, music business and music contracts.
So I think there’s a vagueness that’s an issue. You say “use my work for free in the spirit of sharing what was given by the Creator”; which I think is not an uncommon viewpoint from a writer perspective. First thought is regardless of that, there is a bundle of copyright rights for the writer attached to that work. Although the “gift from the creator” viewpoint is noble and resonates with artists, it’s the copyright bundle that is going to generate income for your business expenses, which you mention in the next sentence.
The way we have found to support our creative artists is in endowing this copyright bundle of rights to the creator; and I mean “small c” creator, the writer of the work. One of those rights is the right to derivative works.
I also love satire and have so many projects I would like to create for parody, but I only do satire and parody on public domain works because I don’t want to deal with the legal issues. My public domain parody work has generated a steady income stream for many years and it is very aggravating when I know that this income stream would be much, much more if I applied this same technique to modern music still under copyright.
Truth be told, the reason those parodies would generate more income with modern music still under copyright is that it has more traction with the public in the current place and time. In other words, there is more value in those copyrights. So the truth is that I would be piggy-backing off of someone else’s work to create my income. This is derivative. But if I don’t have the proper permission then all that work can backfire on me. Mechanical licenses do not cover parodies directly. Parody is technically covered by direct permission, or without permission you try to fly under the “fair use” clause which doesn’t always stick in the use of parodies.
In the original YouTube cases above, I looked at those as part of a group study exercise. In our group I was the only one to side on the “corporate side”. Most people felt that the public should be able to use these clips freely for non-income and non-professional purposes.
I come down on the side of paying the original artist their due. I love parodies and would like to make it easier for them to be made, but pay the artists!
Parodies would mean a lot less without the original. If money is being made from it, a certain amount should go to the original artist. It should be set up so that it’s accessible. I’ve never done it, so I’m not sure how to start getting permission or what their cut is.
I do know that if I record someone else’s song, I pay mechanical royalties at the time of pressing. Whether I sell the recordings, give them away, or store them, the artist is paid for quantity of CDs pressed.
But the times they are a-changin’ The industry is figuring out how to slice a new pie with digital streaming and downloads.
Great thoughts Peggy. Yes, the whole parody and fair-use doctrines need some refining. This is an exciting time of development for music, business and copyright law.
Thanks for reminding me that it’s an exciting time. I get intimidated by the chaos. I’ve written a number of songs, a couple of which people often say that I should sell. That would be nice. I’m not sure how. I can hardly sell CDs (yes, I know, outmoded music delivery systems) but I’m getting a few bucks from Spotify.
I’d like to just write more songs, book my band and play. Isn’t that enough!?!
Peggy – More interesting ideas here. You say you’d like to “just write more songs, book my band and play. Isn’t that enough?”
Absolutely it’s enough. But what if I told you that with a devotion of 2 hours a week on the business side of your music business, you could generate another $200,000 per year. Would you do it? Now I don’t actually have a magic bullet like that, but what if for an extra 4 hours a week you could generate another $10,000 of your music; would you do it?
See what I’m getting at? You are absolutely right that it IS chaos right now to keep track of so many elements to maximize sales revenue of audio products.
I think the answer lies partly in maximizing audio delivery methods but also in exploiting your own copyrights.
For me personally, I know it is almost a full-time job right now getting all of my publishing, copyrights, PRO registrations, etc. all in order. I have let it slide for many years and just rode a wave of telling myself that my royalty income “is enough” and I’m “doing good,” What I am realizing in the last year is there are many more opportunities out there for us if we are tenacious.