Copyright infringement benefits copyright holder

[Denise Wall]

This is a spin-off from this thread in the wedding video section:

http://www.dvinfo.net/conf/wedding-e...e-one-day.html

I'm interested in reading other discussion on this topic so I'm starting a new thread.

YouTube - JK Wedding Entrance Dance

This YouTube video now has close to 7 million hits and a link has been added to purchase "Forever" on iTunes. "Forever" has rocketed up to #6 on iTunes in songs purchased in all genres combined. Obviously the money earning opportunity has been embraced by recording artist's company.

I read one commenter's reply that said something to the effect of, thank you for resurrecting Chris Brown's career.

As a casual observer I think this is quite interesting from the standpoint of when copyright infringement becomes a bonus for the infringed upon. How many times does this happen? And did the endorsement of this video by Chris Brown's people come before or after it was shown on CNN and the Today Show?

[Adam Gold]

Well, it's a valid point and an interesting discussion, but it's also a discussion that's been had so many times here, and with every conceivable opinion on this already posted, that you might get what you're looking for just by going back through the threads.

Bottom line is it doesn't matter what our opinion of copyright law is. Should the laws be changed? Sure. Does that give us the right to ignore them because we think they're stupid? No.

[Denise Wall]

Originally Posted by Adam Gold

Well, it's a valid point and an interesting discussion, but it's also a discussion that's been had so many times here, and with every conceivable opinion on this already posted, that you might get what you're looking for just by going back through the threads.

Bottom line is it doesn't matter what our opinion of copyright law is. Should the laws be changed? Sure. Does that give us the right to ignore them because we think they're stupid? No.

Well, sorry then. I've been on the board a while and haven't noticed this particular type of situation being discussed.

BTW, I don't happen to think copyright laws should be changed. I haven't had videos stolen that I know of but I sure have had pictures stolen and had the offenders make a profit. It may be harder to keep up with copyright infringement now, but that doesn't make the harm any less to the people being stolen from.

[Adam Gold]

Here are a few recent threads that get into this debate:

http://www.dvinfo.net/conf/wedding-e...stupid-me.html

http://www.dvinfo.net/conf/technique...tual-tour.html

http://www.dvinfo.net/conf/taking-ca...ts-advice.html

http://www.dvinfo.net/conf/documenta...ic-domain.html

http://www.dvinfo.net/conf/wedding-e...pyrighted.html

http://www.dvinfo.net/conf/taking-ca...dits-help.html

Interestingly, you'll notice that Chris has killed many of these discussions because they just seem to go around in circles...

Sorry if I misinterpreted your OP. It just seemed to me that's what your thread title was implying/advocating.

[Dave Blackhurst]

Denise -
Usually these discussions pop up in the wedding/event section, often become heated (thus shut down). The first one Adam mentions stayed "live" as it remained "on topic" and thoughtful.

AND you have noted the interesting conundrum of "infringement" that actually benefits the IP holder through added exposure... we touched on that briefly when Guns N' Roses came up...

The probable "legal answer" would be the use of the tune was likely unauthorized (private event, but for entertainment of the "audience" - but who's going to complain?), the capture to video "might" have been incidental (though it sounded farily clean and I believe was the entire tune, so maybe was sync'd in post? It also was specific to the performance.), had it been only for "personal use" it would probably not have been a big deal...

OOPS, almost forgot that we live in a new digital age, where quite literally all the worlds a stage... the posting on You Tube would definitely qualify as a PUBLIC re-distribution of the original tune which was now an integral part of the "derivative work", now a pop icon in the digital revolution.

I think based upon that analysis "infringement" is pretty clear cut in this instance, YET...

I doubt there will be any "prosecution", as it would be so high profile and distasteful that I think there would be backlash... and if they've linked to a download of the tune and the artist is selling like hotcakes, "damages" would be really hard to argue... yet it IS infringement beyond a doubt IMO. The fact that Mr. Brown is probably smiling ear to ear because it "caught on" and went viral to his benefit doesn't change that.

I don't know if the story would be the same if instead of it getting picked up and going big it had been spotted by a copyright enforcer (or software spider doing the same thing) and "cease and desist" letters and a threat for damages going out. Interesting box this Pandora of "digital media" opens up, eh?



It's a real pickle, because as we've discussed ad nauseam, "the law" makes an "innocent" party a potential criminal if they happen to fall on the "wrong" side of something like this, and this is why the thoughtful discussion (when it stays that way) of such things is trying to grab onto and find a reasonable approach/compromise to the "problem". If you take a while (long thread!) to read through the first thread Adam posted, it will give you some things to think on - sadly there aren't any clear definitive "answers", but a good thoughtful discussion.

[Denise Wall]

Originally Posted by Dave Blackhurst

Denise -
If you take a while (long thread!) to read through the first thread Adam posted, it will give you some things to think on - sadly there aren't any clear definitive "answers", but a good thoughtful discussion.

Thanks for the reply. I actually did read that recent long thread (tho not in one sitting).

My interest in starting this thread was in an infringement that turned into a clear and substantial benefit to the copyright holder. As you said, it easily could have gone the other way. However, as it stands, the copyright holder is now endorsing the infringement.

Apologies to all if this specific topic has been beaten to death.

[Steve House]

It does raise some interesting questions, though. As I understand the law, the use of the song in the original video is probably illegal because there's too much of the song used for it to be considered "incidental use." For that matter, the whole notion of incidental use itself is still in a state of flux because the copyright law itself doesn't explicitly make such an exception per se and the case law is still evolving. But the use of the music in the rebroadcast of the video by NBC and CNN would be legal since it would fall under the journalism exemption of the Fair Use doctrine.

[Dave Blackhurst]

This is almost the exception that proves the absurdity of the rule...

I too doubt "incidental" would fly here, and posting to You Tube, where it was no doubt "picked up", would be a clear infringement... and isn't You Tube supposed to pull videos that are infringing? Or does that only apply when they aren't getting millions of eyeballs?

Yet BECAUSE it "went big", and actually resulted in a benefit to the artist... and made broadcast (or at least snippets thereof) as a "news item", NOW it's "OK"... hmmmm...

Is it any wonder that the average layperson finds this incomprehensible?? And at least a little bit unreasonable... even to someone reasonably well versed in this area, this thing sort of flys up it's own backside when you put it up against "the law"!

Wouldn't surprise me if there was a herd of attorneys somewhere trying to figure out how to slap a band aid on this, so as not to allow the continued existence of the exact paradox we're talking about!

This is exactly the scenario I have long contended - private use at a private function, captured on video tape for private use... which I believe to be "fair use" in practical terms, if not legal ones.

What makes it really interesting is that the video went completely viral when posted to a "public" forum, yet while the infringement is pretty blatant, it apparently isn't an issue because it's "popular", and the added exposure helped the artist... and You Tube, etc., etc.

Have to wonder how this would have gone if they'd used a song by "the artist formerly known as whatever...", who in protecting his IP sued a mom for a "viral" video of her baby dancing to "his" tune...

Oh what a tangled web, this internet thing!

[Denise Wall]

Exactly, Steve and Dave.

Originally Posted by Dave Blackhurst

Wouldn't surprise me if there was a herd of attorneys somewhere trying to figure out how to slap a band aid on this, so as not to allow the continued existence of the exact paradox we're talking about!

It wouldn't surprise me either. I have no doubt the original video posted to YouTube was infringement, although I believe the people involved had no idea it was. Then, although CNN and the Today show had protection under fair use, they also more or less legitimized the video by showing it in the positive light they did. Now the copyright holder endorses the video and "it's all good."

So what defensible position does YouTube now have with the many, many other people doing pretty much the same thing on YouTube but getting their videos pulled or worse?

[Nigel Barker]

In the early days of radio the record companies tried to stop records being played on the radio as they thought that nobody would ever want to buy record if they could listen to music for free. They were clearly wrong & came to a reasonable accommodation with the radio stations that even paid the record companies for what were in effect advertisements for their records.

This case sounds the like it's the same old story. This video may be technically infringing but has worked out as a great promo for the record (or iTunes download).

What is amusing is that in some countries e.g. UK & Australia it is possible for videographers to pay a small fee that licenses them to use copyright works in wedding videos. However I believe that this license is for effectively personal use by the bride & groom & a small number of copies. It explicitly does not cover broadcast to the whole world via YouTube. So you could have had the situation where our videographer licensed the music correctly but the customer violated that license which accidentally benefited the copyright holder who had already been paid.

[Steve House]

Well, consider that YouTube would have no way of knowing in advance if the poster had properly licensed the song or not, they wouldn't be just pulling everything discovered to contain material whose copyright is owned by a third party. I'd think it would require a complaint from the copyright owner that the music was unlicensed and its use infringing to trigger the removal.

"...captured on tape for private use" ... Yes, except this isn't that. "Private use" would mean your personal viewing pleasure in your own home or shared with friends at a party, etc. The original purpose of the video would probably indeed be a private use. But the couple posting the video on YouTube or some other public venue or the wedding videographer posting it as a sample on his web site or YouTube/Vimeo/etc takes it completely out of the realm on "private use" IMHO. It's now a public performance in the first case and defintely commercial use for advertising and promotion in the case of the videographer doing the posting. When the wedding videographer posts the video containing the track on the web, it's really no different from Ford running a national network television ad using the music in the soundtrack.

[Denise Wall]

Well, this kind of clears things up for me:

YouTube - YouTube Content ID System

I knew YouTube had upgraded their copyright infringement recognition to where an IP holder could submit their audio or video and YouTube would screen for it. I had no idea they then had a choice of what to do with the video. Like "Make Money" is one choice! Pretty smart. Chris Brown is making money and YouTube's butt is covered.

So there you have it. However, the great unwashed masses, some of whom think they avoid copyright infringement by claiming they do not own the content of their video, will not understand this.

[Chris Davis]

Originally Posted by Steve House

they wouldn't be just pulling everything discovered to contain material whose copyright is owned by a third party.

Actually, they do... almost. As a rights holder (typically a record label,) you have the option to have your material removed immediately when detected by YouTube's fingerprinting software, or simply be notified of a possible infringement. Once notified, you can then decide if the video stays up or is removed. You can also decide to place an advertisement on the page (such as a link to download the song via iTunes or Amazon.)

YouTube has an appeal system in place if the original uploader feels their video has been unfairly removed.

[David Barnett]

I agree with Blackhurst, this is one of those viral videos which exploded, and thus a bit of an exception to the rule.

I wouldn't begin using songs in wedding videos or TV commercials with the reasoning being "..but more people will now download the songs off iTunes, thus benefitting the songwriter."

[Steve House]

Originally Posted by David Barnett

I agree with Blackhurst, this is one of those viral videos which exploded, and thus a bit of an exception to the rule.

I wouldn't begin using songs in wedding videos or TV commercials with the reasoning being "..but more people will now download the songs off iTunes, thus benefitting the songwriter."

And as for the argument that "It's good exposure for the artist" I don't think that Quebec's darling Celine Dion is going to value the "exposure" of using her "My Heart Will Go On" in your wedding video on YouTube very highly. Why aspiring filmmakers (or musicians, for that matter) who long for fame and recognition think established artists will still be hungry enough for the same recognition to give away their work for free I'll never know. And the sync licensing fees don't benefit the artists anyway, unless they self-publish (which not many do). The composer and his publisher are pretty anonymous - and have you ever seen "Lyrics and Music by Joe Jones, XYZ Music Company, Inc) in the credits where someone has used pop music with the excuse "I'm giving the artist free publicity" as it would have to show for anyone to know who the actual artist who created the song even WAS?