Don’t Start Copyright Battles You Don’t Understand

Every once in a while, a copyright litigation story makes a fine cautionary tale for users of social platforms, and this is true partly because the conflict tends to spawn misleading headlines or comments that add fuel to an outrage already borne of ignorance.  In this case, I am referring to Prince’s estate easily prevailing on summary judgment in a copyright dispute with a YouTuber named Kian Habib. 

For instance, in 2017, The Blast posted the headline Prince Sues Random Guy for Posting Concert Videos on YouTube, and the very short article that followed naturally made references to Prince’s famously litigious nature still presiding over the management of his estate since his untimely passing in April of 2016.  In a post several years ago, I commented on the nature of Prince’s desire to control the use of his music, opining that it was a natural extension of the passion he put into everything he did, noting that he tolerated neither corporate labels nor web platforms nor even fans making decisions about what he thought best for his music. 

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And that brings us to the facts in the matter of Comerica v. Habib, in which Habib, while operating his channel PersianCeltic, uploaded five videos featuring substantial amounts of six songs performed by Prince during one of two concerts Habib had attended.  I know people upload smartphone camera clips from live concerts all the time; and in most cases, when short clips are uploaded to, say, a Facebook page, it will not be the target of a takedown by the artist(s) or their agents.  This does not mean said uploads are necessarily non-infringing, only that the rightsholders do not see them as problematic.

In Habib’s case, however, there are two major distinctions that make him someone other than a “random guy,” as The Blast described him.  First, a YouTube channel seeking subscribers will be seen as legally distinct (i.e. as a commercial enterprise) from a personal Facebook page; and second, Habib took the very unwise step in this case of filing a counter-notice in response to Comerica’s valid takedown request directed at the five videos. 

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As explained in detail in an older post, the DMCA was designed as a mechanism for rightsholders to remove infringing content from platforms without suing anybody.  The premise was that innocent users will inevitably upload material that isn’t theirs; the rightsholders will send a takedown requests; the platform will comply and remove the infringing material; and that would be the end of the matter in most cases.  BUT, if a user files a counter-notice asserting that the takedown was made in error, the user is well-advised to know what he’s talking about because the only option left to the rightsholder at that point is to take legal action against the allegedly infringing user.  

As discussed in the past, when the rightsholder is a small creator with limited resources, the counter-notice procedure can serve as a disadvantage because litigation is very costly and not all counter-notices are valid.  But when the rightsholder has resources—and especially if that rightsholder happens to representing the Estate of Prince!!—a lawsuit will be forthcoming unless the counter-notice is truly on solid ground.  Habib’s ground was not merely squishy but was a swampy marsh filled with half-baked notions about copyright law—a classic example in the Don’t Column for YouTubers and other users of creative works.  

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{T]he reason I thought this case worth mentioning is that the defenses argued do resemble the kind of assumptions about copyright that one sees in the digital ether all the time.  For instance, Habib apparently noted that Prince’s copyrights do not cover the live performances at the concerts, which is true, except that his capturing and uploading said performances is called bootlegging. He likewise offered his own legal theory that he is the only copyright owner of the videos—as if that ownership somehow extends to Prince’s music and performances as captured in his recordings.  

Little surprise of course that Habib also attempted a fair use defense without a net, positing that his videos are “transformative in nature because [he] specifically chose the vantage point to record from and alternated between shots of the performance and reactions from the crowd.”  He also argued that capturing banter from the crowd and adding commentary on his channel like “AMAZING” rendered his use “transformative.”  Both crazy and far from the mark on fair use, these amateur theories are typical of the kind of post-Lessig “remix culture” confusion that still gets users into unnecessary trouble.  

I think my favorite among Habib’s fair use defenses (under the third factor considering amount of the work used) is described in the Court opinion thus:  “Habib argues that the third factor weighs in his favor because his videos, in aggregate, add up to ‘approximately 17 minutes” of run-time, which he contrasts with the “approximately 6 hours’ total of the two Prince concerts he attended.”  By that logic, why stop with a mere 6 hours of concert time?  Why not contrast those 17 minutes against Prince’s entire career until Habib’s videos represent some fraction of a percent of Prince’s oeuvre?

Because that’s not how copyright law works, and it is certainly not how the third fair use factor works.  This prong of the defense looks at the amount and substantiality of the use of a single work and weighs that use in context to the purpose of the use assessed under the first factor. How large the author’s catalog, how long his career, or how much money he has earned to date has no bearing on these considerations. 

Unfortunately, the only way to get a definitive answer on whether a particular use is a fair use is to have it resolved in federal court. Judges use four factors to resolve fair use disputes, as discussed in detail below. It’s important to understand that these factors are only guidelines that courts are free to adapt to particular situations on a case‑by‑case basis. In other words, a judge has a great deal of freedom when making a fair use determination, so the outcome in any given case can be hard to predict.

The four factors judges consider are:

• the purpose and character of your use
• the nature of the copyrighted work
• the amount and substantiality of the portion taken, and
• the effect of the use upon the potential market.

The Transformative Factor: The Purpose and Character of Your Use

In a 1994 case, the Supreme Court emphasized this first factor as being an important indicator of fair use. At issue is whether the material has been used to help create something new or merely copied verbatim into another work. When taking portions of copyrighted work, ask yourself the following questions:

• Has the material you have taken from the original work been transformed by adding new expression or meaning?
• Was value added to the original by creating new information, new aesthetics, new insights, and understandings?

In a parody, for example, the parodist transforms the original by holding it up to ridicule. At the same time, a work does not become a parody simply because the author models characters after those found in a famous work.

Purposes such as scholarship, research, or education may also qualify as transformative uses because the work is the subject of review or commentary.

The Nature of the Copyrighted Work

Because the dissemination of facts or information benefits the public, you have more leeway to copy from factual works such as biographies than you do from fictional works such as plays or novels.

In addition, you will have a stronger case of fair use if you copy the material from a published work than an unpublished work. The scope of fair use is narrower for unpublished works because an author has the right to control the first public appearance of his or her expression.

The Amount and Substantiality of the Portion Taken

The less you take, the more likely that your copying will be excused as a fair use. However, even if you take a small portion of a work, your copying will not be a fair use if the portion taken is the “heart” of the work. In other words, you are more likely to run into problems if you take the most memorable aspect of a work. For example, it would probably not be a fair use to copy the opening guitar riff and the words “I can’t get no satisfaction” from the song “Satisfaction.”

This rule—less is more—is not necessarily true in parody cases. A parodist is permitted to borrow quite a bit, even the heart of the original work, in order to conjure up the original work. That’s because, as the Supreme Court has acknowledged, “the heart is also what most readily conjures up the [original] for parody, and it is the heart at which parody takes aim.” (Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994).)

The Effect of the Use Upon the Potential Market

Another important fair use factor is whether your use deprives the copyright owner of income or undermines a new or potential market for the copyrighted work. Depriving a copyright owner of income is very likely to trigger a lawsuit. This is true even if you are not competing directly with the original work.

For example, in one case an artist used a copyrighted photograph without permission as the basis for wood sculptures, copying all elements of the photo. The artist earned several hundred thousand dollars selling the sculptures. When the photographer sued, the artist claimed his sculptures were a fair use because the photographer would never have considered making sculptures. The court disagreed, stating that it did not matter whether the photographer had considered making sculptures; what mattered was that a potential market for sculptures of the photograph existed. (Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992).)

Again, parody is given a slightly different fair use analysis with regard to the impact on the market. It’s possible that a parody may diminish or even destroy the market value of the original work. That is, the parody may be so good that the public can never take the original work seriously again. Although this may cause a loss of income, it’s not the same type of loss as when an infringer merely appropriates the work. As one judge explained, “The economic effect of a parody with which we are concerned is not its potential to destroy or diminish the market for the original—any bad review can have that effect—but whether it fulfills the demand for the original.” (Fisher v. Dees, 794 F.2d 432 (9th Cir. 1986).)

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Too Small for Fair Use: The De Minimis Defense

In some cases, the amount of material copied is so small (or “de minimis”) that the court permits it without even conducting a fair use analysis. For example, in the motion picture Seven, several copyrighted photographs appeared in the film, prompting the copyright owner of the photographs to sue the producer of the movie. The court held that the photos “appear fleetingly and are obscured, severely out of focus, and virtually unidentifiable.” The court excused the use of the photographs as “de minimis” and didn’t require a fair use analysis. (Sandoval v. New Line Cinema Corp., 147 F.3d 215 (2d Cir. 1998).)

As with fair use, there is no bright line test for determining a de minimis use. For example, in another case, a court determined that the use of a copyrighted poster for a total of 27 seconds in the background of the TV show Roc was not de minimis. What distinguished the use of the poster from the use of the photographs in the Seven case? The court stated that the poster was clearly visible and recognizable with sufficient observable detail for the “average lay observer” to view the artist’s imagery and colorful style. (Ringgold v. Black Entertainment Television, Inc., 126 F.3d 70 (2d Cir. 1997).)

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The “Fifth” Fair Use Factor: Are You Good or Bad?

When you review fair use cases, you may find that they sometimes contradict one another or conflict with the rules expressed in this chapter. Fair use involves subjective judgments, often affected by factors such as a judge or jury’s personal sense of right or wrong. Despite the fact that the Supreme Court has indicated that offensiveness is not a fair use factor, you should be aware that a morally offended judge or jury may rationalize its decision against fair use.

For example, in one case a manufacturer of novelty cards parodied the successful children’s dolls the Cabbage Patch Kids. The parody card series was entitled the Garbage Pail Kids and used gruesome and grotesque names and characters to poke fun at the wholesome Cabbage Patch image. Some copyright experts were surprised when a federal court considered the parody an infringement, not a fair use. (Original Appalachian Artworks, Inc. v. Topps Chewing Gum, Inc., 642 F.Supp. 1031 (N.D. Ga. 1986).)