Re: Legality of adding music?

— In videoblogging@yahoogroups.com, Adrian Miles wrote:
> not in this country in the current climate. We have had uni students
> prosecuted…

Hi Adrian and others-

I agree the current climate is one of caution. But, I think what we're
talking about here (adding music onto non-commercial video) is a lot
different than students downloading music — if those are indeed the
lawsuits you are referencing.

Because videoblogging is so new, I don't think a precedent is set.
What would be most analogous thing, then, to videoblogging? Home video
production? Public access TV? I wonder, have there been any documented
cases of litigation in those areas when music clips were added sans
permission?

I've been doing some reading on Copyright & Fair Use, and I think it
really depends on how you interpret the policy. Fair Use allows for
"transformative" use of copyrighted material. What does this mean?
According to Stanford University Libraries (link at bottom):

"So what is a "transformative" use? If this definition seems ambiguous
or vague, be aware that millions of dollars in legal fees have been
spent attempting to define what qualifies as a fair use. There are no
hard-and-fast rules, only general rules and varying court decisions.
That's because the judges and lawmakers who created the fair use
exception did not want to limit the definition of fair use. They
wanted it–like free speech–to have an expansive meaning that could
be open to interpretation.

In a 1994 case, the Supreme Court emphasized [transformative use as
the] primary 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?"

They later give an example of transformative use:

"Roger borrows several quotes from the speech given by the CEO of a
logging company. Roger prints these quotes under photos of old-growth
redwoods in his environmental newsletter. By juxtaposing the quotes
with the photos of endangered trees, Roger has transformed the remarks
from their original purpose and used them to create a new insight. The
copying would probably be permitted as a fair use."

Here is what I interpret from that explanation. The act of playing a
music clip on top of a visual image (e.g. on video) would probably
qualify as fair use, because the visual image would surely add new
expression and/or meaning to the original music.

One last piece of information — The Copyright Crash Course (link at
bottom), which is published by the University of Texas under a
Creative Commons License, discusses something known as the Good Faith
Fair Use Defense. They say:

"There is one special provision of the law that allows a court to
refuse to award any damages at all if it so chooses, even if the
copying at issue was not a fair use. It is called the good faith fair
use defense [17 USC 504(c)(2)]. It only applies if the person who
copied material reasonably believed that what he or she did was a fair
use – as would likely be the case if you followed this Policy! If you
qualify for this defense, it makes you a very poor prospect for a
lawsuit. On the other hand, if you disregard sound advice about fair
use, a court would be free to award the highest level of damages
available. This makes someone who ignores policies a handsome target
for a lawsuit."

I'd like to hear everyone's comments on this, because I think it's an
important topic for videobloggers.

Copyright Crash Course:
http://www.utsystem.edu/ogc/intellectualproperty/cprtindx.htm

Stanford U Copyright & Fair Use:
http://fairuse.stanford.edu/Copyright_and_Fair_Use
_Overview/chapter9/index.html

***Please note, this message has just been my personal interpretation
of Fair Use. Don't use it as your sole defense for using copyrighted
materials! Instead, use it as a spring board for your own research.