Fair Use – Fair or not?

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    Art Munson

    Ran across this today. Don’t know how I feel about this but Fair Use always bugs me a bit.

    Complete story here: http://www.mediapost.com/publications/article/215139/universal-music-and-digital-rights-group-continue.html

    Universal Music And Digital Rights Group Continue ‘Dancing Baby’ Battle.

    A lengthy battle stemming from a YouTube clip of a baby dancing to a Prince song could lead some entertainment companies to rethink the way they police the Web for copyright infringement.

    The dispute dates to 2007, when Stephanie Lenz posted a 29-second clip of her toddler dancing while Prince’s “Let’s Go Crazy” played in the background. Universal Music sent YouTube a takedown notice that asserted the clip infringed copyright. Lenz said the video was protected by fair use principles. After around six weeks, Google agreed and restored the clip…


    Here’s the official spin on Fair Use. http://www.copyright.gov/fls/fl102.html

    My personal opinion, is that Ms. Lenz’s use of the Prince song is not Fair Use. Unless she can explain the social significance of her work and how it provides some sort of commentary on Prince’s work, she does not have strong argument, and should pay a license fee to Universal.

    To use a phrase that lawyers and legislators like, this is a slippery slope. If you let anyone who claims “fair use” without providing a substantive argument, beyond “free speech” and self-expression, do what ever they want with another’s work, it sets a bad precedent.

    I would love to hear Ms. Lenz’s argument, with respect to how her use of “Let’s Go Crazy” satisfies the Fair Use Doctrine. I suspect that it will be quite thin.

    It would be interesting to see how she would respond if Prince put out a new song and used a dancing baby in his video.

    Steve Ballard

    Youtube and other similar entities are full of things like this. The public is grossly misinformed about exactly what “fair use” is. They throw statements up like “For educational purposes” and is clearly not for educational purpose or “I do not own this and is not for profit” thinking they are safe from being shut down or prosecuted for copyright infringement.

    The video Ms. Lenz claims fair use on does not meet the four criteria and is clearly not criticism, comment, news reporting, parody, teaching, scholarship, or research. I think if Universal wins it could set a precedent. Other entities could then follow and shut down half of youtube if they wanted to pursue it.

    That brought a thought in to my mind. Could you imagine how much the copyright holders would make if royalties were demanded from the thousands of videos that claim fair use?

    Art Munson

    Interesting turns this argument is taking.

    Why Google, Twitter and Tumblr Are Backing the ‘Dancing Baby’

    Why Google, Twitter and Tumblr Are Backing the ‘Dancing Baby’


    From the Time Article: “Lenz argues that Universal Music should have known that her 13-month-old’s 29-second “Let’s Go Crazy” YouTube video did not violate copyright law because it was creative, noncommercial, transformative and brief — key legal criteria for “fair use” — and did not harm the market for Prince’s 1984 number-one smash hit.”

    She might be OK on two of the criteria..”brief, and not harming the market for Prince’s song.”

    I don’t see where this use could be considered “transformative” in the the way that 2 Live Crew’s version of Roy Orbison’s Pretty Woman transformed the song and provided social commentary about attitudes toward women.

    Non-commercial?..only if she’s not making money from the youtube video.

    Creative???? Her child was dancing to the song and she recorded it. How creative is that? Did she choreograph the dance steps?

    Bottom-line, if she monetized the video and is making money from it, she should pay Universal and Prince a fee.

    Her use, because it involves taking another’s creative and copyrighted work, without compensation, is distinguishable (legal term) from the other examples offered Google et al, in which some one doesn’t like what was said in an article (but, even that is not suppression of free speech).

    This case involves private entities. If Art wants to suppress “free speech” on his website, he can do it all day long, because he is a private entity. Under US law, “freedom of speech,” means that the government may not suppress speech. Universal is not a governmental entity. So, Ms. Lenz’s free speech argument is tenuous, at best.

    If Ms. Lenz’s “creative work” was not meant to be commercial, let Universal monetize the video, and take the profits. She can have her creative integrity.


    Interesting , seems like Google etc are getting annoyed with the countless take down notices emninating from copyright holders. Interestingly Daniel James just shared this vid.

    in which music was detected in a video and claimed by multiple sources. Clearly a mistake, because there no music at all in it.Its a holiday video on a beach !!!!

    The alarming issue is , that if you dispute a copyright claim on Youtube and are ruled against 3 times your Youtube account is taken down. Because this video is a non profit holiday vid he left it alone and didn’t claim, even if it was a no brainer.

    It seems ironic that Google/Youtube on one hand support the Lenz case, and on the other let this kind of thing happen ( 13 separate claimants) and then have really punitive consequences if the case goes against you.

    I would love to know what the Youtube algo actually thought the song was ?

    Also for Michael, seeing as this take down is automated , surely the alleged copyright holders should have to verify that its legit rather than letting it go. How does this fact square up to what is happening with the Lenz case. To quote the article in relation to D James example “Abusive and unfounded takedown notices interfere with an OSP’s business, can silence valuable free expression, and can constitute harassment of an OSP’s users,”


    The Digital Millennium Copyright Act (DMCA) was designed to protect against piracy…situations like what Bjorn went through with others literally rebranding and selling his music under their own name. We sent DMCA notices to the sites and it was effective.

    The problem with Google/ Youtube etc., is that the copyright violation notices are all automated. There’s no thinking individual in the middle who can say, “wait this is stupid, there’s no music here.”

    To have someone actually analyze the use would cost money, and that’s what Google/ Youtube etc., have their knickers in a knot about. They probably don’t want to spend money, or be bothered with protecting rights owners or they want to funnel users into their own sources.

    Their system doesn’t work (hence we all have problems with content ID). But, it seems that they want to blame the law rather than fix the system (which would benefit us all).

    The system wouldn’t be abusive if they did it right. Hmmm… I guess they’re just into “self-abuse.” 😉

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