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.


McD said...

With regard to factor #1, you're forgetting the ads that are displayed next to the video on YouTube. So, Google may not make any money when you embed it in your Blogger site but anyone who finds it on the YouTube site or clicks through to YouTube from the video on your Blogger page will generate revenue for Google via the ads on that page.

With regard to factor #3, I suspect that it would be measured against how much of that particular song you used and not the length of the entire concert. I personally had a video that I posted to YouTube pulled even though it amounted to just one pitch from an MLB baseball game in 1986.

With regard to factor #4, the issue is potential markets not existing markets and they don't have to be obvious. As explained on this page [fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/9-b.html], a copyrighted photograph used by a sculptor as the basis for a sculpture infringes on the photographers right to do the same even if the photographer might never have thought of making a sculpture from the photo.

Frank Fulchiero said...

Hi Mike, thanks for your comments. My responses:
1. Funny, I don't have any ads on the direct YouTube page showing the video. Is this uncommon? I did consider your concern initially, but ignored it when I did not see any ads.
3. You might be right on this one, though a good attorney might be able to make a case for me!
4. You have a point here also (I can't get your link to work). However, in my defense, I would state that if the song is in the public domain already (I have to check that) and Pete or Bruce's performances are not being distributed in any way by any copyright owners, and I am willing to take the video down if they do indeed do so, I am probably ok. To follow your example, I am willing to destroy the statue based on the photo in the event someone else legally uses that photo for the same purpose.
Fair use is a gray area as we know, I think I am slightly on the right side of legal in this specific case. Interestingly enough, there are other clips of the same concert on YouTube, one with over 70,000 hits. Of course mine looks better because I spent 5 hours compressing it ;-)

Now I wait and see. I thought allowing anyone to embed the video made the entire upload more risky, but decided to go for it.