Conrad Askland – 26 January 2016<\/em><\/p>\n 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.<\/p>\n Sad State of Copyright: Guy Using Short Clips of Music In Viral Videos Accused of Infringement<\/b>.<\/p>\n Steve Kardynal is a popular maker of funny online videos. One of his series is called \u201cSongs in Real Life\u201d where every so often the dialog is a short 3-10 second clip from a popular song.<\/p>\n 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 \u201cwon\u201d and Steve Kardynal was shut down as a derivative artist in this manner.<\/p>\n <\/p>\n 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 \u201cit\u2019s not copyright infringement if you sample less than 3 seconds\u201d, and I also consistently hear live performance techs say \u201cit\u2019s not copyright infringement if you use less than 30 seconds of a song\u201d. Both of those statement are incorrect according to copyright law.<\/p>\n Was Steve Kardynal\u2019s 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\u2019t have the same comedic effect as using famous songs.<\/p>\n The aforementioned is precisely why this is copyright infringement. Steve\u2019s material would not be funny without the famous songs. The success of his product was dependent on using (stealing) other people\u2019s work without permission. I personally don\u2019t ascribe to the statement that \u201cusing the clips in this way does not degrade the original songs in any way\u201d as a defense to this use. Steve\u2019s use was copyright infringement.<\/p>\n 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.<\/p>\n Stephanie Lenz v. Universal Music Corp.<\/b><\/p>\n On February 7 2007, Stephanie Lenz videotaped her young children dancing to the song \u201cLet\u2019s Go Crazy\u201d by Prince. The video is 29 seconds long.<\/p>\n On June 4, 2007, Universal sent a takedown notice to YouTube pursuant of the Digital Millennium Copyright Act (\u201cDMCA\u201d). 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.<\/p>\n In September 2007, Prince stated publicly his efforts \u201cto reclaim his art on the internet\u201d 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.<\/p>\n One of the main arguments of the case was how much burden should be put on copyright holders to police and determine \u201cfair use\u201d. 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\u2019 attorneys argued that many innocent people, that is people that fall under \u201cfair use\u201d, 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\u2019s 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.<\/p>\n 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.<\/p>\n It is clear that the writer of the article, Mike Masnick, feels strongly that Universal\u2019s use of the DMCA in this case is a choke-hold to free speech and creativity.<\/p>\n Again, I guess I am \u201cthat guy\u201d 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. \u201cThe Music\u201d is someone else\u2019s work, their art, their life\u2019s passion. That life\u2019s work deserves respect.<\/p>\n As much as I like watching funny videos on YouTube, I personally hope that the DMCA process is upheld. I think it\u2019s reasonable. If anything, it could use some adjustment but that can happen naturally over time as real world use becomes evident.<\/p>\n As of January 20, 2015 the Lenz \u201cLet\u2019s Go Crazy\u201d video has 1,812,616 views.<\/p>\n Earlier in my article I mentioned that I consistently hear \u201cif you sample 3 seconds of less it\u2019s not infringment\u201d and \u201cif you play less than 30 seconds as an underscore it\u2019s not infringement?\u201d And I have heard those consistently for over 25 years. Well, when I looked up the Lenz video \u201cLet\u2019s Go Crazy\u201d and found a discussion of the copyrights and actually saw these comments:<\/p>\n *begin comments*<\/p>\n Eric Ek:<\/b> 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.<\/p>\n informationwarfare:<\/b> +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.<\/p>\n ShieldCraft:<\/b> +informationwarfare That might be the reason why some videos use high speed versions of popular songs<\/p>\n informationwarfare:<\/b> That’s the reason yea.<\/p>\n GoddessStone:<\/b> Prince has officially become a loser in my eyes…and that’s a shame.\u00a0 A looooong time ago I heard him say something about his music coming from “The Creator” or something akin to that. \u00a0 What ever happened to “give freely that which was given to you freely”?\u00a0 What a creep…the “Prince of Ego”.<\/p>\n *end comments*<\/p>\n Those are comments about an artist\u2019s representative protecting their copyright. I think it\u2019s horrible that people don\u2019t respect that.<\/p>\n So looking at the two scenarios of Steve Kardynal\u2019s \u201cSongs In Real Life\u201d videos and Stephanie Lenz \u201cLet\u2019s Go Crazy #1\u201d 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.<\/p>\n 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.<\/p>\n 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\u2019s 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.<\/p>\n The jury is out on whether either of their tactics were successful. If Steve Kardynal let\u2019s sleeping dogs lie, then I guess he is the loser for giving up his comedy web series.\u00a0 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 \u201closers\u201d for not being able to easily police their copyrights.<\/p>\n 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\u2019s not an easy decision and there are many variables to take into consideration.<\/p>\n 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.<\/p>\n ———————————————-<\/p>\n 1<\/sup> 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<\/a><\/p>\n 2<\/sup> 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<\/a><\/p>\n 3<\/sup> 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<\/a><\/p>\n 4<\/sup> 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<\/a><\/p>\n 5<\/sup> YouTube.com – Let\u2019s Go Crazy #1 video by Stephanie Lenz – https:\/\/www.youtube.com\/watch?v=N1KfJHFWlhQ<\/a><\/p>\n