Mom Sues Music Company Over Baby Video Removal

penguin_dance writes "A Pennsylvania mom is fighting back, suing Universal Music Publishing Group for having a home movie taken down off of YouTube. The movie, featuring her 18-month old bouncing to Prince's song, 'Let's Go Crazy,' was cited for removal by the Group for copyright infringement. Mom Stephanie Lenz was first afraid they'd come after her — then she got angry. She got YouTube to put the video back up, she's enlisted the help of the Electronic Frontier Foundation, and she's filed a civil lawsuit (pdf). 'I thought even though I didn't do anything wrong that they might want to file some kind of suit against me, take my house, come after me. And I didn't like feeling afraid ... I didn't like feeling that I could get in trouble for something as simple as posting a home video for my friends and family to see.'"

Two words...

[Anonymous Coward]

fair use.

I know Prince is a scary guy, but this ....

[trolltalk.com]

FTFA:

A well-placed source directly involved in the situation confirmed to ABC News that Prince was directly involved in seeking the takedown of Lenz's video.

"This guy scours the Internet,'' the source said of the legendary artist, who once changed his name to an unpronounceable symbol and wrote the word "Slave'" on his cheek until he won back the rights to his music from another publishing company.

"He's really intense about this stuff," the source said, adding that Lenz's video "happened to be one of many'' that artist apparently located online and demanded be taken down.

Doesn't the guy have better things to do with his time than to send takedown notices for 29-second video clips?

Hey, maybe he'll have to change his name again to avoid being known as the Bozo formerly known as Prince ...

Re:Offense is the best defence?

[Wavicle]

To knee jerk reaction guy who didn't read the links:

1. She talked to a lawyer.
2. That lawyer is the EFF.
3. They're pretty experienced in this matter, and they intend to collect when she does.
4. Seeking a declaratory judgment is a pretty reasonable thing to do.
5. Universal doesn't get to trample over fair use just because they're a big company.
6. A company that knowingly tramples your rights should pay a fine.

Re:Offense is the best defence?

[trolltalk.com]

"I'd point out that the fact that she wasn't charging money for the video has NO effect"

The link you point to says otherwise:

1. the purpose and character of the use, including whether such use is of commercial nature

...

3. amount and substantiality of the portion used in relation to the copyrighted work as a whole - in this case, a 29-second clip

4. the effect of the use upon the potential market for or value of the copyrighted work. - in this case, none.

...

"incidental and fortuitous reproduction"

This whole thing is de minimus,or at least it shold have been, if Prince didn't spend his days surfing the net looking for such minor "infringements". And yes, the article makes it clear that it was Prince who found the clip, and who was the one pushing for the DMCA notice.

Re:Legal Precedence?

[pla]

could someone explain to me what right she had to use the song in the video?

I have to suspect you as a troll, but since you phrased it so politely...

The song played in the backround. In Real Life. The baby danced to it. The whole sickening glurge-factor aside (I agree, "for the kids" has no more meaning for "us" than it does for "them"), "documentary" falls well within the bounds of "fair use". And even if it didn't, the scene still happened. You can argue with the law, you can't argue with reality.

So, what right does she have to the song? The same right you or I or anyone has to their own lives, to our own culture, and to hell with the law if someone can twist it to say otherwise. I can tell you my day sucked, and Hoover can go pound sand.

Huh?

[Per Abrahamsen]

> If she was posting this on her own non-commercial website, I doubt anyone would have cared.

Is there anything in the past behavior of RIAA that supports that claim?

I know little of RIAA, but the Danish equivalent have had no trouble targeting non-commercial use with ridiculous claims.

Have you actually watched the video?

[MacDork]

Here it is. [youtube.com] UMG doesn't have a leg to stand on.

Re:I know Prince is a scary guy, but this ....

[Kierthos]

Prince's issues were with Warner Brothers. BMI published only two of his albums (his second album, self-titled, and Dirty Minds).

Re:How to get permission

[greenbird]

Of course, if they decide they don't want to take your money because you're small potatoes, it's obviously ironic if they decide to pay a ton of money to lawyers, to sue people over equally small potatoes.

What the hell are you talking about suing for small potatoes. A jury recently decided blatant infringement like this cost the music industry $9,000 per song infringed. If you ask them they'll tell you it cost them billions a year and they're paying about that much to the congress critters to pass laws so they get that much every time they sue anybody.

Re:Two words...

[mollymoo]

She's not using the whole song, it's a 29 second clip. And the audio quality is awful. Nobody wold find that video an adequate substitute for the real deal. That's doesn't necessarily make it legal though.

Re:Tag goodforher !

[king-manic]

There's some truth to that, but how exactly are the music moguls harming her child by not allowing her to publish copyright music without a license?

Because copyright doesn't extend that far. A baby video with music would qualify as fair use/ derivative work.

Re:How to get permission

[king-manic]

Not that it's right for the companies to go around forcing takedowns of harmless uses of their copyrights, but it also says something that nobody even tries to secure permission before putting soundtracks in their youtube videos.

The thing is you ought not have to, to use a clip. In most places in the west except the US you don't have to. In fact it's most likely the same in the US. A clip is fair use and a clip in a another work is derivative works. The GP is basically teaching them the law as the records companies dearly want. Not the law as it is. So the GP is in effect either being ironic or teaching his/her child to give up rights. The common view of copyright is severely skewed. Copyright is not the content creator graciously granting us the right to us it but society gracious granting the content creator or agent there of a temporary control on distribution.

Re:But ...

[king-manic]

... it *was* copyright violation. Plain and simple. This doesn't come close to fitting the criteria for fair use (a lot of /.ers think anything short of selling it for cash is "fair use" but that's not true at all, not by US law anyway). They didn't sue her, they didn't threaten her (she just assumed that part), they just made her stop distributing Prince's IP. She's totally wrong, she got off with a warning, and now *she's* complaining?

ahh very clearly the Record companies have won in what ever area you live in. As the US LAW does allow for Fair use and derivative works(a short clip of music in the background is fair use). It is exactly what fair use is. They issues a DMCA take down. She responded as the DMCA outlines. She's trying to secure her rights while you have a very distorted view of what copyright law is. It's not how Media positions it, as "creators graciously allowing you to use their works." but it's "society graciously allowing artists/middlemen to seek compensation for their work and providing a legal framework to do so and a temporary monopoly."

Re:Tag goodforher !

[BinaryOpty]

Yes, the reason companies have to license work is because they're making money off of them in effect by having them inside their movie. The mom wasn't making money off of the video and the video wasn't going to steal sales away from people who would want to buy the song, so she was within fair use rights to use the song.

Re:Tag goodforher !

[kjart]

Since I do so like to be pedantic, I would like to point out that if moms are indeed characterized as tough, then she would in act be quite average due to the large number of moms.

Re:Tag goodforher !

[orgelspieler]

I'll never understand the persistence of the myth that you must get clearance for every little sound in your film. The intarweb is full of pretty smart people warning that any image or sound in your films is a copyright violation unless you get permission from the copyright holder. One even said if somebody was wearing an identifiable t-shirt, you had to blur it if you couldn't get "clearance." This is all nonsense. People perpetuating this myth are eroding our fair use rights. IANAL, but I am a copyright holder, and I have talked to a few lawyers about it.

That being said, I'm not sure this ladies video is fair use. The music is effectively a soundtrack and comprises a large portion of the video's content. If I heard my (CC-BY-SA) music in the background of a video like this, I would at least expect a "music by orgelspieler" somewhere in the video description.

Let's recap fair use and how it applies to this case:

1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

Obviously, the only item this might fail on is the amount. 29 seconds is about 10% of the song. You have to meet all four requirements to count as fair use. This is a great case for the courts to help explain what is and isn't allowed. Or better yet, maybe it will serve as a touchstone for those jerks in Washington to get off their asses and do something about this vast gray area that is diminishing the creative output of the nation. Copyright is supposed encourage creativity, not stifle it.

Re:Tag goodforher !

[BinaryOpty]

A slightly analogous argument is to say "well someone could use a knife to kill someone, we can't allow people to have knives then." Just because she could abuse fair use to make 8 movies each using 30 different seconds of a 4 minute song with the intent of people piecing them together into the original song doesn't mean fair use should be illegal, it means abusing fair use to make 8 movies each using 30 different seconds of a 4 minute song with the intent of people piecing them together into the original song should be illegal, which it is. A big portion of that is intent: in the presented case the person is intending for the music to be a replacement of the purchased version, just like someone buying a knife to cut veggies is different from someone buying a knife to murder someone with.

Re:I know Prince is a scary guy, but this ....

[LMariachi]

BMI [bmi.com] isn't a record label, it's a rights clearinghouse. Prince has used both BMI and ASCAP for that purpose. Dirty Mind and s/t were published by "Ecnirp BMI" ("Prince" backwards in association with BMI) but released by Warner Bros.

In the music industry, it's typical for the record label to own the rights to the specific recordings while another entity (ASCAP, BMI) administers rights to performances, sheet music, lyrics, etc., usually in conjunction with a shell company set up by the artist.

Re:Tag goodforher !

[autophile]

The intarweb is full of pretty smart people warning that any image or sound in your films is a copyright violation unless you get permission from the copyright holder. One even said if somebody was wearing an identifiable t-shirt, you had to blur it if you couldn't get "clearance." This is all nonsense. People perpetuating this myth are eroding our fair use rights. IANAL, but I am a copyright holder, and I have talked to a few lawyers about it.

It's not just "on teh Intarweb" that people are saying this. This idea is taught in courses on film production, and the reasons are very simple:

1. You can sue anyone for anything, at any time.

2. Copyright is a big stinking swamp filled with alligators and corpses. Nobody knows which way a judge will jump.

Because of these, copyright holders feel free to sue the heck out of anyone using their copyrighted material in any way, even if that way is technically legal -- because who knows? The judge might just side with you and you might get some money. Large corporate holders have plenty of money to burn, so there's no downside to suing for them.

Conversely, users of copyrighted material have a great deal to lose, even if they win. Fighting cases in court costs money, and successfully defending yourself can be Pyrrhic. I suppose if you're a large corporate user, you wouldn't care monetarily if you lose, but it could cause PR issues, I guess.

In any case, the reason people are told to get clearance for everything is that doing so avoids the whole issue. Going back to the stinking swamp analogy, it's clearly best to just go around it. That's why the "myth" of requiring clearance for everything is perpetuated. It's a Pascal's wager.

No, I don't like it either.

--Rob

Re:But ...

[king-manic]

Yes I suppose my view of copyright law has been distorted by actually *reading* the law! By all means please tell me how copying Prince's music into her home video is "for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research" (17 USC 107). Only for one of those uses do you get to use the other arguments (about commercial vs. nonprofit, nature, substantiality, effect on value). "Me wanty" is not a legally valid justification to infringe on copyrights. Listen, I totally agree that current copyright law has been skewed ridiculously to favor the Disney company & cronies. I can't think of any good reason why the term should be more than 20 years -- if an IP creator hasn't made a decent profit by then, the IP can't have been worth much in the first place, and the whole point of publishing in the first place is to contribute the work to our culture. But that doesn't mean there's no limit. IP creators deserve to be paid for their work just like anyone else. (OK I'm a programmer and my entire livelihood comes from customers giving me money for solving their problems, so I'm biased.) I'm so sick of spoiled whiny brats who think that it's the natural way of the universe that weenies like you can take whatever IP you want and the person who created it is a jerk for thinking you'd ever do anything in return. See, it's their duty to work for free because weenie society has conveniently defined any job that creates IP as being inherently worthless. Meanwhile of course, no one better forget to give you *your* paycheck! Because your work actually matters. I bow down in your saintly presence oh master.

Some one else already responded and addressed how this would qualify as fair use. I too have read the laws and they are being pushed farther and farther away from what they originally were. Your interpretation may be correct very soon however fair use is still broad enough that this woman has done nothing ethically wrong and likely nothing legally wrong. Prince may want his cut, and if the recording was a legitimate CD or radio he already received it. At the moment that is all he legally can command.

IP creators do indeed deserve to be compensated however there are limits. Copyright is a recent invention meant to open up society and enable creators to receive something. The system worked as well when the creator got worked under patronage (most classical music and art was commissioned). The current system is a gigantic strain on society. The artists get much less then 10% back on all sales the consumer has to be careful not to tread on fairly arcane laws and their ownership of anything is in dispute. This system isn't working so well. The only ones winning are lawyers, and the middlemen.

Contrary to how you wish to paint me I buy all my media. Games, movies, music. I object to someone telling where and when I can use this media. Thankfully i live in Canada which to date has a saner approach to copyright. Fair use is broader, Technical protection measures such as DRM is perfectly legal to circumvent for non-infringing purposes and non-infringing is semi-well defined. I hope dearly and work hard towards ensuring Canada doesn't sign the WIPO treaty and doesn't become like America, who ironically built their industry on patents stolen from europe.