In this episode from 2021, we look at the thorny issues of copyright and how fair use isn't some proactive safety play to avoid those pesky copyright strikes.
Welcome to Tech Stuff, a production from I Heart Radio. Hey there, and welcome to tech Stuff. I'm your host, Jonathan Strickland. I'm an executive producer with I Heart Radio and how the tech are you up Here? In the United States? It is Martin Luther King Junior Day, and that means that we have the day off work, so we're going to do a rerun today because I'm I'm not I'm not working today. So this episode originally published in one and I keep wanting to say that's last year, but I kind of remind myself it's not two anymore. Yeah, this came out may see is called copyright and fair use. I feel it's always important to revisit this topic because it's a it's one that's a little complicated, and I think a lot of people have misconceptions about what fair use is and how it works. So enjoy and I'll chat with you a little bit at the very end. It has been a while since I've done an episode about the concepts of copyright and fair use. And after I keep seeing the phrase no copyright infringement intended over and over on places like YouTube and Instagram, I figure it's a good time to tackle this again, because people continue to pretend like copyright infringement only applies under very specific circumstances and that with just a little bit of verbiage you can get around it, when really the opposite is true. And since the Internet and technology allows for more opportunities for a copyright infringement, and because various governments and around the world have passed legislation to you know, specifically tackle copyright infringement, and companies have lobbied endlessly for more restrictive copyright rules, I think it fits the scope of tech stuff, particularly since a lot of these laws were formed in reaction to changes in technology. So first, let's kind of define what copyright is now. Essentially, copyright guarantees the creator of a work or an entity that has been designated by the creator of the work, the right to profit off of that work, the right to make copies of that work and then distribute or sell them, or you know, you just you own that intellectual property. No one else can come and make copies of it without your permission. The works in this case range from the written word to music, to paintings, sculpture, uh to digital files. I mean, copyright now applies to lots of stuff. Clearly, it didn't apply to all of that in the beginning. But something that has a voulved over time. It does not include inventions. Those are covered under patent law. And then you also have things like trademarks, which make things more complicated. I might talk about trademarks and copyright in a future episode to kind of talk about how those complicate things because companies have tried to use trademarks in order to extend copyright protection. But trademarks last in perpetuity. Copyright only lasts a certain amount of time, at least in theory. We'll get to all that. So along with the right to profit from intellectual property comes with it protections against others who are taking a work and profiting off of it without permission. Now you can see the value of this concept right away, I imagine. So let's say you are a musician and you write a song. It was your work, you create the whole piece, You wrote the music, and you wrote the lyrics, and you plan to earn money through this song. Maybe you're going to record it to some form of media and then sell copies of the song. So you filed a copyright for the song, which gives you the exclusive rights to make copies of it uh in whatever format you like, whether it's digital files or physical media, or even like sheet music. You can charge whatever you like for your work, though obviously if you go bonkers and you ask for a ridiculously high price, you aren't likely to get a lot of takers. You also have the protection should someone else start making copies of your song without your permission. Maybe they are performing it themselves, in which case they should secure a license first, or maybe they're taking your original recording and just duplicating it. So let's say that you created an MP three file and they just copy the MP three file endlessly and start either giving it away or selling it to people. You could sue that person, and in court you could prove that you hold the copyright to that piece of music, and assuming the court agrees with that the copyright is legitimate, you could then seek damages against the person or entity that made the unauthorized copies of your work. Music is actually really a special case because you can have multiple copyrights on the work. You could have one for the lyrics, then you could have another for the musical composition itself, and that would mean that someone who wanted to play your music but change the lyrics would still potentially be liable for copyright violations. But we're going to get back to that a little bit later in this episode, but it is something to keep in mind. However, Then there are such things as mechanical licenses. This sets out the rules for stuff like playing recorded music in particular places. So if you've ever been to like a restaurant or a theater and you've heard music being played over the sound system, chances are that that place of business has paid out a license fee in order to be able to do that. Intellectual property rights get pretty complicated. Uh. It also depends upon the size of the venue. I might have to do a future episode to kind of talk about all the exceptions, because, as I said, it does get complicated, and in some cases, if it's a very small venue, Uh, they can sometimes be exempt from having to pay the same sort of license fees that larger venues have to pay. And part of the argument there is that the number of people who would actually experience the music is much smaller because the venue is smaller. Anyway, in the old days, as in before the printing press, copyright wasn't really that big of a thing, like, there wasn't a big concern for it. There were predecessors for formal copyright, but truthfully, there wasn't much occasion to use them because the act of copying a work involved actually making a copy out by hand, handwriting the copy of a written work. This was a painstaking process and not something that could be done on any sort of scale, and so copyright wasn't as huge a concern just because infringement itself was not something that was easy to do. And to that the fact that much of the world's population was illiterate and there just wasn't a foundation for copyright infringement to really take hold. Then a smarty pants named Johann Gutenberg had to go and invent the movable type printing press, at least the European version. I should stress that Europe, because other parts of the world were actually further advanced with printing technologies than Europe was. But this is the one that Western cultures tend to talk about because we get a little myopic. But i'll i'll set aside the commentary. So with the printing press, it became possible to set the type on the press then print out sheets one after the other in relatively quick succession. Now, it still took time to set the press between pages because you had to change all the type out right. You had to remove all the type, set the type again, and then print the next sheet. So you would typically use the press to print a bunch of the same sheet in a row before you would reset the type and move on to the next sheet. However, you could also use a single large sheet of paper to set up multiple pages of text, and so you could divide up the quadrants of a printing press and change the type up so that you are actually creating multiple pages per press. And then you fold the paper in such a way that that makes all sense, Like if you fold it once along a vertical line, so you you fold it in half vertically. Um, then are along the vertical access, I should say. Then you end up with a folio that was a single large sheet of paper that would have one page printed on the left side, one page printed on the right side. You have a vertical fold in the middle, and then you can just keep printing those over and over again, and then you bind a bunch of those together and you've got a book, or you could do a double fold, and you could have a quarto, which would also involve you having to make a cut along the horizontal line. But then you've got four pages per sheet, so you could do that and that it means that with one press you're effectively printing four pages, and then you let it dry, you flip it over and you can print another four pages. Very useful. So this was these were different ways that you could end up creating books fairly quickly. The process of publishing became much faster than with people doing it by hand, but there wasn't yet a formalized protection in place for the creator of the works. And at this point, the typical approach was for an author to receive a flat fee for their work, which would then go to a book printer to produce, so the printer would take ownership of that work from that point forward. Then it was just a matter of time before other printers would get hold of the book and start making their own copies, at least for books that proved to be popular for authors. There really wasn't a whole lot of profit in this approach. William Shakespeare, who you know, you could argue was one of the greatest English writers, mostly known for his plays but also his poetry, He never sought out the printing of his plays. Others would give it a shot. Either they would try to copy down plays as they were being performed and then go and print what they had transcribed, or they would try to get hold of the sides that actors were using in their roles, or a combination of the two. It was really only after Shakespeare's death that his friends got together and did their best to gather his plays and publish them. Now, based on what I know about Shakespeare, I suspect the reason that he did not seek out publication of his works was that it really wasn't where the money would be for him. He would get a pay the flat fee for every play he wrote, but more importantly, he was a part owner of the theater itself, like the Globe Theater or the Rose Theater. He was part of the company that owned the theater, so that meant he would actually take a share of the box office. So, in other words, his main goal was to attract crowds to the theater. That's where the money was. But you can bet that if there had been serious money in publication back in those days, Shakespeare would have been all over it because a quick glance at some of the lawsuits he was involved with during his lifetime indicates he had a certain appreciation for the accumulation of wealth. So Shakespeare, great artist, also a business guy, and had publishing been a bigger business for the author, he certainly would have gone that route. I'm sure of it. Now. The printing press was a truly transformational piece of technology. It became easier to produce many copies of a work book. Printing businesses, which would evolve into true publishing houses, began to pop up all over Europe, and the powers that be, that is, the Church and the various governments of Europe viewed book printers as both an asset and a potential threat. Through the printers, these organizations could spread information quickly. The Bible was a very early candidate for printing, as the Guttenberg Bible. Prooves and governments could use printing presses to spread information about laws and declarations and that kind of thing. But printing presses also meant it was easier to print stuff that undermined authority. People who had a boned pick with the folks who were in charge could potentially spread their ideas and maybe find sympathetic souls who shared those same beliefs. So the printing press could enable existential threats to the power structure. And this is where we get a predecessor to copyright. Now, this predecessor wasn't so much about making sure the author of a book was fairly compensated. Instead, it was more about keeping printing houses under control. The basic idea was that any business that wished to print materials had to first secure an official license from, you know, the government of that region. These licenses typically meant that a specific printer would be responsible for the printing of particular works to the exclusion of all other printers. So you might say that this one printer can print this one book, and no other printer in the region is allowed to do that, so they have a monopoly on that specific title. In fact, they called the monopolies. These agreements would last a set number of years, which wasn't too different from the concept of modern copyrights. If any other printer was found to produce a work that some other printer had exclusive rights to, that matter could go to court. But this was all about the printing houses, not authors. England passed its first actual copyright law in seventeen ten. This law changed things quite a bit. A publisher would have a fourteen year period of exclusive rights to publish any new book. Existing books that the printing house was already printing would enjoy protection for twenty one years. After that, the author of the work could choose to renew the copyright if the author was still alive. Otherwise the work would enter into the public domain, meaning anyone would be legally allowed to make a copy of that work or use it in any way they liked. There were no longer any protections on that piece of work, and it was available for any public use. The United States wouldn't get its first true copyright law until nearly a century later. But let's be fair, there was no such thing as the United States in seventeen ten, so I'm gonna cut the Young Nations some slack here. The copyright law of the US followed closely in the footsteps of the Copyright Act of Britain, which was also known as the Statute of Ann as in Queen Anne. So the way that the US law worked was that an author would register their work with the U. S District Court of their particular region, and they would in return receive an exclusive copyright for fourteen years, with the option to renew for a second fourteen year period, and after those twenty eight years, assuming that you actually renewed your copyright, the work would then enter into the public domain with the Statute of ann and the Copyright Act of seventeen ninety in the US or at the point where authors would get a little more protection and a chance to benefit more from their own work. It was no longer the case of a one time flat fee in every instance. Now, I say authors, but often we're really still talking about publishers. Here. The publisher retains the copyright because the copyright allows the publisher to, you know, publish the works. Otherwise the author would have to grant permission for each printing. You'd have to have a license for it. It all gets clunky, right, that the author has exclusive copyright to their work, they have to grant permission to whichever entity is creating copies of that work. You often see this reflected today in ways that are kind of confusing. When you agree to certain platforms, there's language there that seems to suggest that anything you post on that platform is that platform's property. But usually the reasoning for the language is to make sure that the platform has the necessary permission to display whatever it is you're posting, because otherwise, every single time you posted, you would have to have some sort of licensing agreement or something that would give permission to the platform to actually display the thing you wrote. It gets pretty complicated now. The same would be true for most music produced in the modern era. The copyright isn't necessarily held by the artist, but by a music label. It's kind of like how Thomas Edison made sure that his name was on every patent produced out of his business. He might not have had a direct hand in the creation of every invention. In fact, we know that he didn't have a direct hand and a lot of them, but he sure as heck made sure that his signature was on the patent to every single one, so that he had a right to each of them anyway. One of the consequences of all of this is that, to this day, getting the permission of an author or artist in order to use their work typically isn't enough. That's because in many cases that individual creator doesn't actually hold the copyright to the work. It's more likely that some corporate entity will hold the copyright on behalf of that creator. So you really have to get the permission of whatever entity holds the copyright for any specific intellectual property. In some cases it might be an individual creator, in other cases it might be a big company. So let's say if you met an artist for Disney in a cafe and this artist told you, oh, it's totally cool if you use they're drawing of a popular Disney character for something you're doing, that's probably not good enough because that artist wouldn't even hold the copyright for that work. Disney would, and copyright laws would evolve quite a lot over the following centuries. They expanded to include more types of works, as well as to allow for things like licenses, And without these considerations, it might be illegal to, you know, play playback an album without first getting permission of the music label, which is clearly absurd. You wouldn't have it where you bought an album, you went home, and every time you were to play the album, you first had to get permission from the music label to do that. That just doesn't make sense. But that's the sort of stuff that actually had to be codified into law. It's you know, it's not enough to just everyone agree like, oh well, that's absurd. It actually had to be written down somewhere and ratified. One of the biggest changes to copyright has been how long that copyright protection lasts. This also ties into how many capitalist societies treat corporations, which is uh ridiculously in my mind. So here in the United States in particular, corporations are treated legally like a person. But if you think about that's kind of bonkers more than kind of bankers. I should say, people get old, people pass away. Corporations, Assuming that they are run well and they provide some sort of goods or services that people want or need, they can exist indefinitely. And to corporate and that relies heavily on intellectual property, is quite loath to give up that meal ticket, and so corporations over the years have lobbied hard to extend copyright in order to prevent the i P that they own from falling into the public domain. And then they can no longer exclusively exploit that i P. They could still exploit it, they could still sell stuff with it, just it doesn't stop anyone else from doing the same thing. Perhaps the most high profile of all these companies was one that seemed fixated on a particular mouse that I've already mentioned. I'll explain more after this quick break. Before the break, I tease that corporations played a huge part in lobbying Congress to extend the protections of copyright, and one of those corporations is the Walt Disney Company and the cultural phenomenon that is Mickey Mouse. The cartoon Steamboat Willie, which was the first Mickey Mouse cartoon, was released in nineteen twenty eight. Now, at that time, US copyright law had a twenty eight year protection limit, which could then be renewed for a second twenty eight year term, which would provide a total of fifty six years of copyright exclusivity to the owner of an i P. But then the i P would enter the public domain. That means that if copyright law had remained unchanged since Steamboat Willie, Steamboat Willie would have entered the public domain back in nineteen eight four. Spoiler alert, As of the recording of this podcast, Steamboat Willie is not in the public domain yet, so things did not remain the same. By the nineteen seventies, the Disney Company was lobbying hard to change copyright laws, and I want to be clear they weren't the only ones, but you freaquently here Disney specifically in regard to lobbying for copyright law extensions, and it worked. Congress changed the copyright protection so that copyrights that were held by individual authors protection would last the lifetime of that author plus another fifty years. So now we're well beyond guaranteeing the right of a person to profit off of their work. Right now, you're saying you're guaranteeing that multiple generations of an author's family can continue to benefit from the work of the author. The author will be dead and fifty years will pass, and until those fifty years are up, the estate will continue to benefit monetarily from that author's work, assuming that you know people are still buying it. Obviously, if it falls out of favor and no one's purchasing anything, then those rights, while they're important, don't actually leverage into any kind of monetary gain. But this is where I start feeling a little weird about all this, because I think it's one thing to want to provide for your family, right you want to earn money and help contribute to your family or households well being. But it's another to create generational wealth that removes the need for future generations to you know, make any sort of meaningful contribution themselves. There are lots of cases where the children of authors who were incredibly successful, uh have themselves gone on to do amazing things, which is great. But there are also cases of people who just kind of, you know, never bothered to do anything because they didn't really have a need to. They were all of their needs were already met because they were earning income on something that their parents or grandparents or great grandparents had done, and there never was any need for them to do anything. Not super helpful for the general society. Not very healthy in my mind anyway. For corporations that owned i P. It was a different story, right, because corporations don't die, so you can't say the life of a corporation plus fifty years. So in this case, the Copyright Protection extended the term for works that had been published before nineteen to a total term of seventy five years of protection. UH. The Copyright Extension pushed that that protection of Steamboat Willie to two thousand three because of that, because it was published in nineteen seventy five years later would be up to two thousand three. However, in nineteen Congress passed the Copyright Term Extension Act, also known as the Sunny Bono Copyright Term Extension Act, after the late congressman and musicians Sonny Bono Bono had passed away in an accident while Congress was hashing out this extension bill, so he was posthumously honored with the title of the the Act. This act extended the copy of right protection for any work published in nineteen twenty three or later. And the extension meant that the copyright protection now went from the life of the author plus fifty years to the life of the author plus seventy years for those works that were created by an individual artist. And it meant for works of corporate authorship, you know, works that like Steamboat Willie from Disney, they went from having seventy five years of protection to either ninety five years after publication or one twenty years from the date of creation, whichever ended earlier. So you know, corporate corporations might create something but not yet publish it. So in some cases you would actually have a shorter period between time of creation and a hundred twenty years than time of publication in ninety five years. Anyway, any published work before nineteen seventy eight would get an additional twenty years of copyright protection, so they went from seventy five years to ninety five years, and those extra twenty years meant that Steamboat Willie will now enter public domain essentially at the beginning of twenty twenty four, unless between now and then there's yet another change to copyright law, which seems highly unlikely because there is a large opposition to that. Since the Copyright Act I've mentioned so far retroactively protected any work published after nineteen twenty three, it meant that we finally saw some published works go into the public domain beginning in twenty nineteen. So on January one, twenty nineteen, any copyrighted works that were published in nineteen twenty three, with a few exceptions that have to do with music because music is complicated otherwise, they entered the public domain at that point. This was the first time in twenty one years and a large collection of works fell out of copyright protection and into the public domain only because of the timing of changes to copyright law in the United States, So works from nineteen twenty two had entered the public domain back in nineteen nine eight, but then you had the change the copyright law, and so any works from nineteen three enjoyed twenty more years of protection because of that recent extension, and thus they only entered the public domain in twenty nineteen. That's the difference that a single year can make. This year in one we saw works like f Scott Fitzgerald's The Great Gatsby go into the public domain. You can now make as many copies of The Great Gatsby as you like. You can hand them out for free. You could charge for them if you want to. It's public domain. Dr Doolittle's Zoo also went into public domain this year. Agatha Christie's The Secret of Chimneys made its exit from copyright protection. The nineteen twenty five silent film version of been Her, not the Charlton Heston version, but the silent film version is in public domain, as is Lawn Cheney's The Phantom of the Opera. Also, the silent film version of Wizard Oz. Again not the big musical version, you know, not the the follow the Yellow Brick Road version, but the silent film version of Wizard of Oz is also in the public domain this year. Now, that means that if you want to make copies of Lawn Cheney's Pohntom of the Opera and you want to distribute those widely, if you want to post the entire movie on YouTube, you can. You can do it for free. You could also, you know, sell DVDs of it if you wanted to, you could. You could have press DVDs with Lawn Cheney's Pountom of the Opera and you could sell them. I don't know if anyone would buy them, but you can do it. You can do it here, you can do it there, you can do it everywhere in the US anyway, it is no longer in copyright now, backtracking just a little bit, the printing press had made copyright protection more or less a necessity to prevent publishers from pouncing on each other and flooding the market with copies of various books. But for a really long time, copyright was just something that big companies were mostly concerned with. It was a non fact for the average person. I mean, it affected us, but we didn't come into any sort of conflict with copyright protection because most of us just didn't have access to equipment that we would need to replicate an original work. If back in the mid nineteen twenties you managed to get your grubby hands on a copy of The Great Gatsby, you probably didn't have the ability to copy that work and then sell it to two people yourself, you know, like undercutting big bookstores or whatever. Publishing houses were protecting themselves, but they were doing so mostly from other publishing houses. The average person was not a threat. So the nature of copyright law was all about corporate entities protecting themselves from each other. This, by the way, is what kind of becomes an issue in the modern day, where you've got the the effect of like a nuclear arsenal, you know, corporations against each other that could then be aimed against the individual because the nature of copying has changed, so there's a disproportionate hardship on the individual because of that. So over time, various inventions meant more people would have the ability to create copies of stuff, And these technological advancements always came hand in hand with media companies freaking the heck out about it, which is not an exaggeration. The invention of technologies like cassette tapes or VHS, tapes, burnable compact discs, and of course, digital media all sent media companies into a tizzy. Each invention prompted the companies to object strenuously and to proclaim that should these technologies fall into the hands of the common, unwashed masses like myself, that the era of stuff like film or television or popular music would all come to an end and the entire industry would crash down on its self, and we would then be back to banging rocks together for entertainment. News Alert. None of that happened, but in the process we saw lots of other laws passed that expanded copyright protection by creating a pretty extensive framework for prosecution should an IP holder discover that someone has copied or distributed stuff that they hold the rights to without proper authorization. I will cover more of those in the next episode. Now. One of the reasons the public domain is important is that works can have a great deal of relevance and usefulness many years after they were published. Think of all the classics that are out there that have stood the test of time. But if copyright lasted forever, these works would be under a tight restriction in perpetuity. Public domain means that eventually these works will become widely accessible. It's balancing out the benefits that go to the I P holder against the benefits of society as a whole. All right, But what about fair use? Okay? So, fair use is a concept that allows someone to use part of a copyrighted work that uh without permission in one of several ways. And it's fairly narrow in its scope, but also kind of fuzzy at the edges. So it's narrow in scope, but there are no hard yes or no answers to this stuff. In general, fair use allows someone to make limited use of a portion of a copyrighted work for the purposes of news reporting, research, teaching, or criticism and commentary. Parody falls into that last category as well, but we're gonna come back to that because it's a more specific approach than just adding funny words to existing music. Fair use means that you don't have to secure permission from the copyright holder if you're using a small portion of that original work in one of these ways. So, for example, if I were criticizing a film, I could use small clips of that film during my critique. Let's say I'm uploading a video to YouTube where I am critiquing a movie, I could include tiny clips of that film in order to illustrate specific points of my criticism, and I wouldn't have to get permission first. The clips I used would need to relate directly to that criticism. However, I might want to talk about lighting composition, and I'll use clips from Robert Egger's film The Lighthouse, because that film had phenomenal lighting in it. So I'd use those examples to talk about specific lighting techniques and how they shape storytelling and what significance they play in the unfolding of the story of the Lighthouse. But if I were to get more loosey goosey, my protection of fair use would not be as solid. Similarly, if I would use very short clips of the film in my critique, my argument of fair use is better supported then if I were to say, include thirty minutes of the movie surrounded by like five minutes of criticism. Now, does that mean there's a specific safe amount of copyrighted material that you can use without fear of retribution. No. There is a common misconception that if you use less than say, fifteen seconds of audio from a source or six seconds or whatever that that's small enough to be fair use and no one's going to come after you. That is just not true. Or rather it's it's not a guarantee. Specifically, it's not a guarantee if you're not using that as some form of commentary or criticism on the work itself, If you're using it as like the button to a moment, you know, like a sound bite or whatever, there's very little support for a fair use argument there. So if I just filled up this podcast with sound bites from various films and music, TV shows and radio spots and stuff like that without paying a license for all of those things, I would be flying pretty darn close to the sun. Because unless I'm using those snippets in very specific ways, such as to criticize those original works that the snippets belong to, or to report on the news of those snippets, well I would be infringing on copyright. That doesn't necessarily mean anyone is going to come after me. I mean, chances are, for really small stuff, i'd probably be okay unless my podcast got wildly successful, in which case I could represent a pretty lucrative target. If the copyright holders looked at my podcast and said, well, that show is making X million dollars a year, and a lot of that popularity, we could argue comes from its use of our intellectual property. We can get a piece of that that pie like that. That would be the thought process, and it could actually work in court. So it doesn't mean on bulletproof if I'm just using tiny little clips. It's not until it goes to court that I really know if I'm going to have to pay or not. So fair use isn't a concept that has hard borders to it. It's all interpretive stuff. And here's the key to all of it. Fair use is something that gets determined in court. So, in other words, you can't really use fair use proactively as a defense. It's a defense that you make if a copyright holder pursues a claim against you for copyright infringement. So let's say that I did that critique of The Lighthouse and the film company A twenty four which released and distributed the film here in the United States. Let's say that that that company came after me for copyright infringement, and I would have to defend my use of those clips in court, and I would have to cite fair use in that process. Throughout the proceedings, I would likely have to prove that the way I use those clips was in fact to critique the film, and that the excerpts I used were appropriate and constituted a relatively small percentage of the overall critique and a very small percentage of the original film. Courts decide on a case by case basis if a particular instance is fair use or not. There isn't a blanket fair use defense. You gotta go in front of the courts to do it. And this is what I meant by that nuclear arsenal. When it comes to companies versus companies, typically you have lawyers on both sides who are just perpetually employed by these companies that call each other up and they work things out, and you might have a licensing agreement, or you might agree to a settlement, but it rarely goes to court. When it comes to individuals, most of us don't have access to that kind of legal defense. So for us, it's like a math sive, well funded company with high paid lawyers versus the little guy, and it means that the little guy has to shell out the big bucks in order to defend themselves. Against the corporations, even if the little guy is totally in the right, If the the use is inarguably fair use, you don't get to that decision magically. You have to go to court for it, and court is expensive. We're going to pause the conversation right here, take a quick break, and we'll be right back now. The courts tend to look at four factors when deciding if any given instance constitutes fair use. One is the purpose and character of the use of the original material, including whether the use is for a commercial nature or is nonprofit and educational. So, in other words, if I'm making videos where I critique films and I include clips of those films in the videos, and I'm monetizing those critique videos, that can be a little bit of a strike against me because I'm using someone else's work in something on my own in order to make money. That's not a failure rail the gate, but it does make my argument harder. So it doesn't mean that a court is going to decide I'm not engaging in fair use. But in general, if the use is nonprofit and it's educational, it fits more easily into the fair use category, and courts tend to be a bit more forgiving. Then there's the nature of the copyrighted work itself. In general, it is easier to make a fair use argument if the thing you're sampling from is a non fictional work. Works that are about creative expression, like novels or movies, have a higher burden of proof than works that are nonfiction. So, for example, in this podcast, I will some times quote specific sources those are non fiction sources, and I quote from them to establish facts. That's easier to defend as fair use than if I were to include, say a minute long audio clip from a science fiction television show that's a work of fiction. It's a work of creative endeavors that is harder to justify as fair use unless I'm specifically critiquing the show itself. Then comes the amount and substantiality of the portion of the copyrighted work that I used in my critique of The Lighthouse. If I'm using very short clips that just show up in my video for like five or ten seconds each as I talk about lighting techniques, that's easier to defend as fair use. I'm not showing a significant part of the movie. People aren't going to feel like they saw the entire film. By watching my critique, they're just getting a flavor of what I'm talking about and getting an understanding of what I mean when I'm critiquing the use of lighting. If I'm, however, using very long stretches of the original film, particularly stretches that don't include changes in lighting, well that's going to be a lot harder to defend in court. And then there's the effect of the use upon the potential market for the copyrighted work. If my derivative work could possibly hurt the sales of the original by displacing the sales of that original, that's a problem. And this one is a tricky one, right because what if I'm not critiquing the technique of a film, but the quality of a film. And what if I present a video where I do an extensive tear down of a movie and I explain how I think it is not a good film, or I'm arguing that people shouldn't go see that movie, that it would be a waste of their time and money. Well, if folks value my judgment, I could well be said to have a negative impact on the sales of the original work. However, generally that would still be protected However, if I were to use the original in some way that would make people want to buy my derivative work or consume it for free or whatever instead of the original, well that's harder to defend. So let's say, like in my critique of The Lighthouse, I included the entire film of the Lighthouse in my critique. That would be very hard to defend, not just because I'm using a substantial amount of the original work, but also the company did argue, Hey, why would people pay to see our movie if they can see it for free? Just wrapped up in the context of this supposed criticism video, the copyright holder it can make a valid claim that my derivative work would not exist without the copyrighted original piece, and yet it was essentially siphoning sales away from that original piece that is not protected under fair use. Okay, we've got that all established. We're gonna make a couple more points before we wrap this up. Um, So, when it comes to stuff like music, I mentioned that you can copyright the musical composition, and you can copyright the lyrics separately. One other thing you can do, however, is copyright individual performances of a piece of music. So, for example, let's say that you're making a video and you want to make use of a recording of Beethoven's Ode to Joy. Now, Oh to Joy is part of Beethoven's Symphony number nine. Beethoven composed that in the eighteen twenties, and it has long since passed into the public domain. You can use Ode to Joy in anything you like for free. There's no one to pay royalties to as far as that's concerned, or licensing fees. Two. However, that just covers the music itself. A performance of Ode to Joy will have its own copyright which dates to the recording of that piece. So even though the music is in public domain, a performance lily is not unless you're using a performance of Oh to Joy. The dates from before the nineteen twenties. So you could perform to Joy yourself in your project, you'd be good to go. The music is in the public domain, the performance is yours. You're fine. But if you wanted to, say, use a recording of the London Philharmonic's performance that they did sometime in the nineteen nineties of Oh de Joy, well then you would have to deal with some licensing arrangements to get the proper permissions to make use of that music, because while the musics in the public domain, the performance is not. Then there are other things to consider as well. So remember when I said parody is kind of a special case with fair use. This one gets even more complicated than other forms. So technically parody falls under fair use if it falls under the criticism and comment consideration for fair use. A typical definition of parody is quote and immit pation of the style of a particular writer, artist, or genre with deliberate exaggeration for comic effect end quote. But that doesn't automatically mean that it's fair use. For it to be fair use, that specific parody really needs to comment upon or criticize the original work that it is parodying. For that reason, some but not all, of weird Al Yankovic's parody songs would easily fall under fair use, and others would be questionable. Now. I mentioned weird Al because he's the most famous parody artist I can think of, that probably the one that most people have heard of, and some of his parodies do tend to target the original work. So Smells Like Nirvana is a parody of the Nirvana song Smells Like teen Spirit, and it's all about critiquing the original song. There are lyrics of what is this song all about? Can't figure any lyrics out that comments on the lyrics of the original work. Other verses fun at Kurt Cobain's slurring and mumbling of words, making it hard to understand what is actually being sung, So that song parody would probably hold up under fair use. But then take a song like Foil. Foil is a parody of Lord's song Royals, so it's using the music and lyrical structure of Royals. You know, they change the actual lyrics, but it's the same rhyme, scheme and scanshion of Royals. But the song Foil isn't a commentary on Royals. Instead, it's a comedic song about aluminum foil. And I'm pretty sure you couldn't make an argument that it's somehow commenting on the original work, which means that would be harder to defend as fair use. It's not a bad song, by the way. This isn't a commentary on the quality of the parody, but rather whether it would fall under the consideration of fair use or not. Now, to be clear, weird al makes it a practice to get permission to do his parodies before he does them. He licenses the songs. In cases like smells like Nirvana, he might have been able to skip that step, or more likely his music label would have if they were, you know, willing to defend any lawsuits that came their way as a result. But as both the courtesy and kind of the necessity, he reaches out before recording parodies. Usually, um, there's at least one version of this where things didn't work out, though, actually there's a couple I can think of, but I'm gonna mention one in particular. So back in two thousand six, where All Yankovic was working on an album and he wanted to include a parody of the James Blunt song You're Beautiful. Yankovic's version was a parody called You're Pitiful about a middle aged dude who seriously down on his luck. Blunt was receptive and he gave the go ahead to Yankovic. But as Yankovic's album neared publication, Blunt's record label, Atlantic Records, reached out to Yankovic's label and demand did that the song not appear on the album. And you know, music labels typically hold the I p for the actual songs of an artist in this case is a little more complicated than that. So getting permission from Blunt, while a good thing, wasn't totally legally binding. Blunt probably could have pushed back on Atlantic Records about this, but that's not exactly an easy thing to do when you're an artist. I mean, you you want to work with your label. You don't want that to be a confrontational relationship. And as I mentioned earlier, defending fair use is expensive because it all goes to that consideration of a court, and that means lawyers and lawyers have fees, and so defending an instance as fair use in court can mean that you're paying thousands or tens of thousands of dollars in fees just to defend yourself. There's a financial disincentive to the average person because again, these laws were made with corporations in mind, big entities that can afford these kind of things. The average person can't. So corporations like music labels or publishers have you know, entire teams of lawyers who do this stuff all the time. They can put pressure on folks with threats of lawsuits. And even if those folks are in the right. You know, even if their works clearly would fall under fair use, to defend it in court could be way too expensive for these individuals to afford it. There have been cases in which people have settled out of court for thousands of dollars, not because they felt they were legit and the wrong, but because trying to prove that they were innocent of infringement was more expensive than settling. It's pretty darn brutal. Now, what about all those posts and YouTube videos that say no copyright infringement intended? Those are pretty much worthless. It's akin to posting on Facebook that you aren't giving Facebook the rights to your data. That's also useless because just by sign going on to Facebook and making an account, you have to agree to Facebook's terms of service. That kind of supersedes your little post that says you're not in favor of Facebook using your data. Facebook's responses too bad, because you agreed to it by being on the platform. That's part of our terms of service. If you don't want us to take your data, don't be on Facebook. That's kind of the way that works. So if you come across a video that says no copyright infringement intended, or a picture on Instagram that clearly doesn't belong to the account that posted it. Just note that that phrase means nothing. Intent is not part of determining whether someone is infringing copyright in the first place. It doesn't matter what you intend. There's definitely a gradient when it comes to copyright infringement. Like if I include half of a music video online, that's copyright infringement. But if I include the whole thing, that is worse. And if I monetize the video where I do it, that's even worse. But even that smallest for example I gave is still infringing. Doesn't matter whether I think it is or not. You know, if I can think something's not a crime, but if legally it's a crime, it doesn't really matter what I think. There are a lot of other things I need to say about this, but one thing I want to sum up with right here before I close out, and we will pick back up in the next episode, is that Tom Scott did a great job exploring the issues of copyright and YouTube in particular, and I'll look more at YouTube in the next episode. He did in a video titled YouTube's Copyright System isn't broken, the world's is, and shout out to listener Kat, who first turned me onto Tom Scott's videos. Scott does what I do, only he does it with a British accent, so he's better at it than I am by default. Also, he's genuinely good at explaining stuff like this, so make sure you check that out. And we'll come back to talk more about YouTube and copyright infringement and content i D and some of the laws that have been passed after big media companies have lobbied Chris in the United States that have changed the way information gets shared on the Internet. We'll also talk about some of the crazy movements that companies have made against individuals and an effort to crack down on things like piracy. Because all this is tied up together and it's all a mess, And really what it boils down to is that copyright law itself is in dire need of a full rewrite. But that's dangerous because the parties that are particularly interested in a rewrite of copyright law are not looking to make it better, They're looking to make it last longer. I hope you enjoyed that episode from Copyright and Fair Use. Uh yeah, fair use is one of those things that we can't easily leverage ourselves, even in a podcast in a big company. Like you might wonder, why don't I do an episode about, you know, a certain musical instrument like the mog synthesizer and then include a whole bunch of mog music. Well, it's because even though you could argue, yeah, it's fair use, you're commenting on something and you're using it as an example, and it's the vast majority of the material is original. It's not taken from a copyrighted work. That's still something that comes up in court cases, right, Like, that's something you argue once you've already been sued, and ain't nobody wants to get sued. So yeah, it is a complex thing, and it's one that that unless you're paying licenses to use material for so that you can make absolutely certain that you're not treading on any toes, you've got to be super careful. So I hope you enjoyed that episode about copyright and fair use. I hope that was interesting and informative to you. We'll be back with new episodes tomorrow, so I will chat with you. Then. Oh wait, that's not how I end this. I'll talk to you again really soon. M Text Stuff is an I heart Radio production. 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