In early 2007, Stephanie Lenz recorded a video of her children dancing to the song “Let’s Go Crazy” recorded by Prince. She uploaded the recording to Youtube and, roughly three months later, received a takedown notice from Youtube notifying her that the video infringed on a copyright held by Universal Music. Lenz issued a complaint stating that the video was actually a Fair Use of Prince’s music and should therefore be put back onto Youtube. She said her video was not taken down based “on a particular characteristic of the video or any good-faith belief that it actually infringed a copyright,” but rather Prince’s personal desire to control all of his work. The plaintiffs in this case accept that the video includes elements that are under copyright by Prince and Universal. Their argument is whether or not the Digital Millennium Copyright Act “requires a copyright owner to consider the fair use doctrine in formulating a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.” The judge in this case noted that no other court case has actually determined the merits of whether the phrase quoted above pertains to Fair Use. The judge determined that, despite no previous ruling, Fair Use is not an infringement of copyright and is a lawful use of the copyright. The court thus ordered that a brief review of potentially infringing material must be completed by content owners prior to sending a Takedown notice, to ensure whether it is a Fair Use.
This decision strengthens my paper’s argument that many potentially infringing videos on Youtube may, in fact, be examples of Fair Use. While only a small percentage of songs available on file sharing websites could be constituted as Fair Use due to the skill required to sufficiently transform songs, many videos on Youtube may be shielded from unwarranted takedown notices because of this ruling, due to the fact that transforming and mashing video clips is much easier than transforming songs. The complaint that a large portion of Youtube’s videos are copyright infringing and that Youtube encourages such videos is thus proven false. In reality, many of these “infringing” videos actually make up the user-generated content that embodies the spirit of Youtube: a community of Web 2.0 users producing unique and individual content to share with others. Had this decision not been made, unchecked takedown notices could have harmed time-sensitive and important videos that were actually examples of Fair Use. While Universal argued that this checking for Fair Use is an unnecessary waste of time, the Judge was quick to point out that the Copyright Act of 1976 established 4 simple, quick factors for determining Fair Use. This decision upholds the hard work of individuals who successfully transform copyrighted material, and it prevents large corporations and recording artists from overreaching their bounds by unfairly removing Fair Use videos. Youtube’s legitimacy as a website made up of a majority of unique material is thus upheld.
Stanford University Libraries does a great job summing up the idea of fair use in the context of copyright law and touches upon the four factors judges consider when determining whether a work of art upholds the fair use doctrine. In its most general sense, a fair use is any copying of copyrighted material done for a limited and "transformative" purpose such as to comment upon, criticize or parody a copyrighted work. Fair use is also a defense against infringement. Such uses can be done without permission from the copyright owner. Most fair use analysis falls into two categories: commentary and criticism; or parody (a work that ridicules another, usually well-known work, by imitating it in a comic way). When a fair use dispute is at hand, judges tend to break the argument into four categories as noted below, then decide from the factors whether or not the work overall is considered fair use.
The four factors of fair use:
- the purpose and character of use (has the material been used to help create something new, or merely copied verbatim into another work?)
- the nature of the copyrighted work (more leeway to copy from factual works such as biographies than from fictional works such as plays or novels)
- the amount and substantiality of the portion taken
- the effect of the use upon the potential market (depriving a copyright owner of income is very likely to trigger a lawsuit)
Fair use lies within gray boundaries, thus disputes are best reviewed case-by-case. For example within my video mashup project, each factor must be looked at in order to determine whether my parody withstands copyright infringement.