Dancing Baby Video Battle Back in Court Tuesday
eff.org
eff.org
In other words, passing this off as "background" music is nonsense. Given the context of the video, that characterization is clearly and obviously not true, and I don't think the EFF does itself or the broader cause of copyright reform any favors by misrepresenting facts in this fashion.
For what it's worth, I think Fair Use should allow this video, and videos like it. People's engagement with the culture is what makes it culture, and the idea that ownership of the underlying IP extends a bubble of ownership and control to every imaginable situation in which that IP appears is, frankly, odious. As far as this case goes, I think the EFF has picked a fight well worth having, but their ends don't justify the means. If anything, the means may compromise the ends.
What performance? Would you really call a kid dancing to a song a "performance"? Do you think the kid wouldn't be dancing if any other song was on?
In addition, performance is actually a legal term which will probably mean some sort of training and/or practice. This is not a performance. I don't think ANY court will agree with this being a performance.
To me it seems that you are implying that parents wanted to post a tune from The Prince on the Internet and used a clip of their dancing baby as an excuse.
That is precisely wrong and precisely along the lines that label lawyers will probably try to draw.
Also, 29 seconds is ~30 seconds, which is the length of a standard TV commercial. In a world where all identifiable samples need to be licensed, that's not "very short" at all.
I know that telling people they're categorically wrong when it comes to copyright is perceived as defending copyright. I want to be clear that I recognize the need for substantial copyright reform and liberalization. When I say "you're wrong" I don't mean that reform and liberalization are bad things. I simply mean that you have no idea what you're talking about when it comes to the law itself, and how it actually works. I think widespread ignorance is a bad thing among those who (quite justifiably) would like to see the law changed.
But really fair use should be extended to include individual, non-commercial use.
Copyright, at most, should grant monopoly on monetization. Not on culture.
Selling synchronization rights is a specific (and highly lucrative) line of business for artists and music publishers. That's what they're fighting to protect. They don't care if this was supposed to be commercial or not, any more than they care whether a commercial producer using their music in a feature film ends up making or losing money on the picture. They sell synchronization rights. You want 'em, you buy 'em. Or you get sued for infringing them. Those are your choices, that's their perspective in a nutshell, and they recognize no exceptions for "personal use". Right or wrong, the law is 100% on their side. Moreover, the fact that this video went viral and started producing actual ad revenue means that it is - regardless of intention - a clearly became commercial piece of media.
Again, the entire situation is completely outside anything that anyone imagined in the pre-internet age, which is when the market for synchronization rights was established. The culture is developing is ways the law didn't anticipate, and which the law, to my mind, should not obstruct. However, I don't think it's smart to pretend this isn't a synch rights issue when that's exactly what it is.
If EFF's object is to expand the scope of Fair Use to cover situations like this, and to create a precedent that demands publishers consider Fair Use before issuing take downs, then the issue of synchronization rights must be squarely addressed, not evaded by pretending that the audio track is incidental when that's demonstrably not the case.
This is awesome, thanks.
There is a grey area where I am only capturing nat sound, but I have cued up the music specifically for the purpose the video.
I'm not saying this is right or wrong, smart or dumb. I'm just telling you that this is how they system actually works.
There's no damage in that case. While being a bit more strict about having to have actual damage being done to the copyright owner wouldn't completely clean up all abuse, it would eliminate some things like this that are just blindingly stupid. I get that someone can own a copyright on a piece of music but that shouldn't mean that I've got a blanket recording blackout imposed on anything within earshot in the meantime.
I'd also observe that the reason for "fair use" in the first place, underlying the common 4-point test, is that free speech is an amendment to the constitution, so the copyright clauses within the original had to be harmonized with the amendment. It is certainly a valid argument that allowing copyright owners their blanket lock on recording while something they own happens to be playing in the vicinity is a free speech infringement.
The commercial loss, in this case, comes from the failure to pay for synchronization rights, which is a major source of revenues for artists and music publishers.
You may think this is "stupid" but that's only because you're considering this problem from your perspective alone. You have to remember that copyright - for most of its existence - never came into direct contact with the general public. In that regard, it was like regulations from the FAA or the FTC. I fully agree that, from the perspective of individuals suddenly subjected to its complexities, it seems stupid. And in many ways, it IS stupid. But often, the actual stupidity is very different from the apparent stupidity, which actually makes perfect sense if you know enough to consider the full picture.
What I'm saying is that approaching the problem of reform from your perspective alone is like approaching astronomy by describing the way the world seems to you, not the way it actually is. In other words, you're not going to be able to advance from a Newtonian conception of gravity to Einstein's if you're still stuck in the pre-Copernican view that insists everything revolves around the Earth because that's they way it appears to you, personally.
There's no damage here. When it comes to footage of my kid dancing, large multinational corporations don't have an interest to "balance" with mine, because they aren't invited. Presumably we are talking about a legal copy of the song in the first place. Their interest ended at the point at which I got a legal copy. We are not talking about a situation in which they are not being paid.
I'm actually well aware of this sort of thing and not generally in favor of the total abolition of copyright or anything, but the very idea that massive corporations even have a stake in this sort of dispute should be shot down.
Actually, we are.
When you bought a copy, that copy came with certain limitations. One of those included a limitation against doing exactly what happened here (synching sound to picture to create a derivate work available to the general public). You may think a limited transfer of rights is stupid or unfair, but that's a separate issue. The issue before the court is whether the purchaser of the recording gets synch rights with that recording (she doesn't) and whether additional payment is due if the music is used in this fashion (it is).
The fact that she wasn't billed is, from the perspective of the publisher, an act of restraint and generosity on their part.
The broader point is this: you have absolutely no idea what you're talking about. This doesn't mean that you're stupid. It just means your ignorant. You simply don't understand - even on the most the basic level - how copyrights, licenses, and limited rights in IP work. Nor, it appears, have you ever taken the time to find out.
Believe me, there's a lot to criticize in these systems. I say that as someone who has dealt with them on a professional basis for over a decade. And as I've said it before and will say it again, I am NOT defending the status quo. But I am saying that if you want to change it, you really do need to understand what it is that you're trying to change.
Sometimes I think the EFF overreaches, but here this is 'common sense' stuff that they should (and did) pursue. Kudos.