If you create YouTube home videos background music, the courts have just issued an huge opinion that will help you out. Sounds ridiculous, but the music industry has been sending YouTube takedown notices for home videos with music playing in the background. Where do you draw the line? The answer is something called “fair use”. Question for you: does posting a 29-second home video on YouTube of two children dancing in a family kitchen to Let’s Go Crazy by Prince (Listen Here) violate US Copyright Law? The 9th Circuit says no. Find out why.
Is publishing a video with background music illegal?
It can be. Since a schizophrenic-like paranoia was unleashed in the music world by Napster, the music industry has been infamous for jumping the gun and threatening copyright lawsuits against everyone. This is not good for innocent people trying to be creative.
Copyright has one main goal: to promote the progress of science and the arts. This means allowing creators to make money off their works. But when does copyright protection go too far? Watch the following video. Do you think accusing this mother of a copyright violation was going too far?
Universal Music said based on the video’s title and the mother’s question to her son if he liked the song, it determined that the Prince song “was very much the focus of the video” and sent a takedown notification to YouTube. Under the Digital Millennium Copyright Act (DMCA), YouTube, as a service provider, took it down and notified the mother that Universal Music complained of copyright infringement. That's a pretty big deal for normal folks like you and I.
At this point, most people would back down to avoid the headache of being harassed by the music industry; however, not in this case. What was different about this situation? The mother fought back and won. Why? It was simple; Universal Music simply sent out the takedown notice without considering whether the background music was truly a copyright violation. The question Universal Music did not asked itself before sending out its legal threat was this: whether the use of Prince’s song in this home video was “fair use” of copyrightable material that under US Copyright Law is in fact not infringing material at all.
How do you know if your YouTube video is fair use?
Short answer: you ask a judge. But you can give yourself a better argument by asking yourself the following simple questions about whether your YouTube video constitutes fair use:
- THE PURPOSE- what is the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purpose;
- THE NATURE- what is the nature of the copyrighted work;
- THE AMOUNT- what is the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- THE EFFECT- what is the effect of the use upon the potential market for or value of the copyrighted work. 17 U.S.C. s 107
Why is the 9th Circuit’s opinion in this case a big deal? Because it says that blanket threats of legal action by copyright holders without first doing their homework are no longer going to be accepted. While the music industry may conclude it is too hard to monitor all their copyrights for fair use, the law is clear that you must consider fair use and people using the law as a sword must make sure that they follow the entire law, not just the part that make their job easy. Particularly, the goal is to promote the arts and science, when in fact, overaggressive copyright holders impair the furtherance of human progress. Fair use provides the balance that allows the copyright system to work.
The 9th Circuit intelligently concluded that before a copyright holder wants to send out threats, it has a duty to make sure it is not impairing the progress of arts and sciences. It has a duty to consider fair use, or it may be liable under the same laws it uses as a sword.
Make sure everyone plays by the rules.
The final score: Mom: +2; YouTube: +1; & Universal Music: 0. If you are accidentally caught up in the music pirating war going on in music industry, don't despair and ask yourself if your video constitutes fair use. Make sure to share this opinion with your friends because it furthers progress in the arts:
If ur YouTube video gets a takedown notice, ask urself if it's FAIR USE. The law is on ur side! Share this
Read the opinion by the US Court of Appeals for the 9th Circuit opinion
See Fair Use Checklist by Columbia University's Copyright Advisory Board.
For question or comments, email me at firstname.lastname@example.org