[opendtv] Re: Repurposing Allowed? Fair Use?

I posted that link, in no small part, to demonstrate several things, including aspects of fair use.

First, as I recall, YouTube pays fees to Ascap and BMI, so playing music is more or less okay (those two account for the vast majority of licensed music in the U.S.)

The film clips were, to my eye, carefully crafted to stay within fair use.  That is, they are very short (generally no more than 5 seconds) and their inclusion doesn't use -- with one exception -- audio from the film.  They don't give you the essence of the film, just a taste.

However, and with copyright there is always a however, a general ASCAP or BMI license doesn't give the holder a license to "syncronize" the audio to unrelated video, this is never fair use, and requires an individual license.  But, usually holders don't go against non-commercial uses.  (There is big money in syncronization licenses.)

The purest uses I have seen of music on YouTube is when the video just shows the song playing on a turntable.  I'd just love to see a copyright holder try to assert that a sync license pertains to that.  Under my understanding of "sync" (attained in the second semester at the TV/Film department of San Diego City College, a junior college), that's a clear, if de minimus violation of the sync rights in the song.

Less pure is when they show liner artwork, with potentially other copyright questions may arise. 

I'm a fan of a rather obscure British group named "Barclay James Harvest."  In thier history, the probably sold 50,000 of their 12 albums in the U.S. (They were seriously big in the U.K and Europe.)  I was suprised just how many of their songs are available on YouTube, including a live version of their "Hymn" that I had only heard about once, thirty years ago, by a guy who read about in New Musical Express or Melody Maker.   It's a wonderful piece of music, particularly for Christians, and not to be confused with their "Suicide" which deals with, well, guess what?

They made the mistake of being signed by MCA (Music Cemetary of America), controlled by Universal, and I've even seen self-pirated copies of their albums in used record stores.  (Apparently pirated by cohorts of the late mobster Morris Levy in the mid-1980s, actions that earned him an indictment right before he died.  Levy owned Roulette records "Crimson and Clover", and robbed from many artists via his record labels and 'ownership' of the Peppermint Lounge.) 

I spotted an unusual mark on the pirated albums, and I had read about the piracy in the Washinton Post.  As much as I wanted their album "12" in vinyl (containing 'Hymn' and 'Suicide'), I had to decline the possibility.  I could have rationalized it, but not forever.  So, more than 20 years later, the only way I can hear these two songs is via YouTube, absent buying used vinyl via GEMM.com.

It even looks to me like there might be a YouTube-influenced resurrection (a pun?) of BJH.

I just enjoy plucking the ignorant who see these issues either in black or white, or who can rationalize that their desire trumps all laws and the explicit rights of others, and then they try to shout down anyone that says something that interferes with their generally favorable view of their desires.  I tend to know when I transgress on the rights of others.

John Willkie

-----Original Message-----
From: dan.grimes@xxxxxxxx
Sent: Jun 27, 2008 8:54 AM
To: opendtv@xxxxxxxxxxxxx
Subject: [opendtv] Repurposing Allowed? Fair Use?

It is funny that John should post this video as we discuss "fair use".

A while ago, I put film clips to a song, both commercial, and displayed it to the public. It just so happened that a member of the audience owned the film. I received a phone call and a cease and desist order. I was later able to display the video with special permission from the owners because it conveyed exactly what their intent was for the separate works, and was even more powerful together. However, I learned my lesson.

Now, putting clips to music and presenting it to the public is so wide spread that it is impossible to stop. In fact, the public generally considers it "fair use". Naturally, I wouldn't argue that it is; but the question then becomes, when so many people do something and it becomes acceptable to society, no matter what the laws are in place or the principles behind it, must the behavior become acceptable to all? I would argue that we are seeing such actions today across our society, and the "fair use" of media is in the midst of it.

Dan


John Willkie <johnwillkie@xxxxxxxxxxxxx>

John Willkie <johnwillkie@xxxxxxxxxxxxx> Sent by: opendtv-bounce@xxxxxxxxxxxxx 06/26/2008 10:48 PM Please respond to opendtv@xxxxxxxxxxxxx

To opendtv@xxxxxxxxxxxxx, opendtv@xxxxxxxxxxxxx, opendtv@xxxxxxxxxxxxx cc Subject [opendtv] Re: MPAA wants to stop DVRs from recording some movies

yowza! http://www.youtube.com/watch?v=9lKhaCAIbbw

John Willkie