If you are an artist or an online business using video marketing on YouTube and other video sharing websites, you will have probably thought about the legal aspects of creating YouTube videos or faced a take down notice.
One of the biggest mistakes that online business owners and video marketers make is assuming that as long as they have followed YouTube’s terms of service they have fulfilled their legal obligations.
A classic example of a blunder made by a Texas Governor which led to his website being shut down by Google reveals how certain assumptions you make, whether about the legality of copyright or any other law as it operates online, can turn out to be misguided.
As reported by Austin News Texas Governor Rick Perry’s YouTube channel was shut down by Google due to multiple third party notifications of copyright infringement. His campaign was dedicated to creating videos which attacked and criticised Sen. Kay Bailey Hutchison. However that wasn’t the reason why the video was taken down.
YouTube didn’t have any problem with the content, rather the music which was being used in the online ads. Although the politician probably would have paid to acquire rights to use the music for web only videos apparently nobody turned their minds to this or just wrongly assumed, that short clips of music online will always constitute “fair use”.
Neither did anyone try to get around the copyright restrictions on using songs in videos for YouTube has enabled via YouTube’s Content ID system which flags copyright music in a video. This gives the copyright owner the choice of having the video taken down or adding a pop up ad with a link to buy the song in question.
There is long established case law which has held that taking only a few bars of a song can constitute infringement which isn’t excused by fair use or, in Australia, “fair dealing” where it takes the ‘heart of the work’.
A recent case where this occurred was in relation to the 1981 pop hit ‘Down Under’ by rock band ‘Men at Work’ who were held to have reproduced a substantial part of a folk song ‘Kookaburra sits in the Old Gum Tree’ composed in 1934. Men at Work were held by the Federal Court of Australia to have engaged in copyright infringement. The flute riff, the contentious part, was said to reproduce two of the three bars of the original four bar Kookaburra song, even though it was mixed in with other musical notes.
Where use of a work consitutes copyright infringement, putting aside the defence of fair use, is both a qualitative and a quantitative judgement. A few bars of a song which is instantly recognisable has been deemed to be infringement.
Raising fair use or fair dealing as a defence to copyright infringement arises as a separate matter once it has been decided that copyright infringement has occurred.
The US Supreme Court has upheld the right of a group to use a past artist’s music in their own track such as Live Crew’s parody of Pretty Woman. The reason it was allowed was that it was deemed to be a parody under US fair use laws.
However Australian fair dealing laws were much less permissive than US law and many parodies of various kinds were disallowed by the High Court. While there are certain fair dealing exceptions to the use of copyright material without permission until recently there were only narrow exceptions and no comparable general “fair use” defence
Australia now has a separate defence of parody in the Copyright Act, however neither the concept of parody or related concept of satire has been defined in the Copyright Act, nor has it been considered by Australian courts. However under the former fair dealing provisions various forms of parody have been interpreted narrowly. In the US the first amendment right to free speech may give parodies more protection than under Australian law. It would be unwise to construe parody and satire according to US law. The test which the parody defence is based on is an international test and the Courts may look more to the decisions of European courts which have incorporated it into their laws when interpreting and applying the test.
The new parody exception in Australian law is based on what is known as the ‘Berne/TRIPS ‘3 step’ test’ which applies three considerations where it will apply as follows:
1. In certain special cases
2. Where the use does not conflict with a normal exploitation of the work; and
3. Where the use does not unreasonably prejudice the legitimate interests of the author.
Parody and/or satire is a very powerful form of social commentary and expression, a critical part of encouraging free speech and critical discussion. Perhaps the test should be simply whether a particular work adds significantly new expression so as not to be a mere substitute for the original work. Many artists are attracting millions of users to their channels by engaging in parodies of popular music artists. One of the biggest is VP Princess. Miley Cyris parody by VP Princess
In addition to moral rights those creating YouTube videos need to consider moral rights when making use of an artists’ works in addition to other laws and jurisdictional issues.
Merely complying with YouTube’s terms of service will not necessarily protect you from legal action when creating videos whether as a powerful form of social commentary or in your video marketing endeavours.