Tuesday, May 05, 2009

Testing YouTube's Fair Use Policy

Sunday, May 3, was Pete Seeger's 90th birthday. There was a big celebration concert in Madison Square Garden on that day, to praise this amazing man, his amazing wife, and his amazing life. I posted a video to YouTube, as a tribute to him, and as a test of YouTube's interpretation of Fair Use law in the Copyright Act of 1976, 17 U.S.C., Section 107

The video is of Pete's performance at the Inauguration Concert in January. According to my interpretation, use of the above clip is allowed under Fair Use. The factors to be considered in determining Fair Use, and my analysis, are:

(1) The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.
No money is being made from posting the video, and it is instructional for the public to hear how Woodie Guthrie's usually unsung lines are finally sung in public. This is also newsworthy.

(2) The nature of the copyrighted work.
This is an interesting area that I need to research further. It appears that "This Land is Your Land" may not even be copyrighted any more. However, HBO may claim that this specific performance is. And Bruce Sprinsteen's agent and recording contractors may also.

(3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
This is an easy win. The posted clip is only 5 minutes long, the entire concert was an hour and 54 minutes long. There were other compelling performances.

(4) The effect of the use upon the potential market for or value of the copyrighted work.
Here again, we win. HBO is not currently making the clip available either at cost or for free, so there is no potential market. If HBO does decide to make the concert video available, it has to be re-analyzed.

Anyhow, it's my little experiment in copyright policy. I'll keep everyone posted regarding any news. If YouTube takes down the video, I will try other hosting services. This post is a draft, if anyone has any ideas on how to improve it, or any feedback at all, I'd like to hear from you.

Note: I heard from Mike below, he made some good points, and will edit this draft to reflect them.

Incidentally, there is a movement to help nominate Pete Seeger for the Nobel Peace Prize.