Fair Use Fridays: Rebecca Black Bob Dylan and Hitler Take on Friday Mornings

Genius parody - Bob Dylan does Rebecca Black's Friday. Original went viral, over 50 million views on YouTube, watch it below:



Slow version below:



Hitler's reaction:






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FTV | fashiontv.com - Moschino Fall 2011 Milan

FashionTV's YouTube channel explodes in popularity, over 103,000,000 views, beats all other fashion channels by orders of magnitude. http://www.ftv.com/. Visit FTV's Youtube channel here.

Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here

Fair Use Fridays: Dramatic Chipmunk Tackles Fair Use

From American University Center for Social Media, "Fair Use Is A Right" - the link is here, but they gave me no embed code, urging only to share on Facebook and Twitter.   So without a formal invitation to share on YouTube, would me posting it to YouTube be fair use?

If you are new to Dramatic Chipmunk, here is the original - with 26 million views on YouTube




Then of course Best of Dramatic Chipmunk:




A more in-depth study of Dramatic Chipmunk as one of the Internet Memes of 2007 from Rocketboom.



 Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here  

9th Circuit en Banc: Preemption of Contracts Involving Ideas, and Judges on YouTube: Gnarly!

The 9th Circuit Court of Appeals has a channel on YouTube. A couple of weeks back, I met Chief Judge Alex Kozinski at a Federal Bar Association cocktail party with the greeting "Hey Judge I saw you on YouTube!" This is the type of greeting that New Yorkers think Californians will enjoy. I survived the greeting to have a good discussion. The Cassirer case, the Ninth Circuit en banc video on YouTube here.

But once again, I am drawn back to YouTube for a wonderful argument on an important case (thank you Anonymous tipster). My initial post on the 9th Circuit's original decision in Montz v. Pilgrim Films here.

I rarely take a position in copyright cases (as opposed to Nazi art looting cases) saying that a case is right or wrong. Sometimes I say that a copyright case is well-reasoned. But Montz v. Pilgrim Films, as you can see from my earlier post here, is a case where I opined that the 9th Circuit was "clearly incorrect".

Now with the argument on YouTube, you too can access the wonderful world of copyright and the cutting-edge issue of preemption. Here, the issue is whether or not a state can regulate contracts governing the buying and selling of ideas. This is big, heady, important stuff and this case is of extraordinary importance. I am happy to see the Ninth Circuit take it en banc.

In Chapter 10 of Copyright Litigation Handbook "Removal from State Court and Preemption" I cover the tension between the Copyright Act and state law.

More Copyright Litigation Blog posts on preemption here.

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FashionTV and YouTube Cover New York Fashion Week Live For The First Time

Catch what's happening on the catwalks LIVE at New York Fashion Week http://www.youtube.com/liverunway Subscribe to the FTV Hot fashion channel on YouTube here

Fashion TV broadcasts in 193 countries to over 350 million households and 7 million public locations across the 5 continents; it is the only 24-hour fashion, beauty & lifestyle television station worldwide. Based in Paris, France since 1997, Fashion TV is streamed through 30 satellites and thousands of cable operators and its content focuses on fashion shows, backstage access, photographers, models and celebrities.
In North America, FashionTV SD broadcasts on Atlantic Broadband Cables in Miami Beach (channel N. 179); FashionTV HD broadcasts on DISH Network (channel N. 374) and on DISH LATINO Ultimate Pack (Channel N. 5304); In addition, FashionTV HD is offered as Paid-Direct-To-Home service via IntelSat 805 satellite and FashionTV international European Live streaming feed and all its worldwide VOD clips is offered for monthly membership of F-CLUB on http://www.ftv.com/

If you would like to distribute or do a licensing deal with FashionTV in North America, give me a call and I will connect you with our team.
Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here

Copyright Law: Fair Use Fridays - Kutiman Mixes YouTube - The Mother of All Funk Chords

Copyright law's fair use doctrine is embedded in 17 USC 107, which provides:

§ 107. Limitations on exclusive rights: Fair use



Notwithstanding the provisions of sections 106 and 106A [a copyright owner's exclusive rights to publish and distribute copyrighted works] , the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the 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.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

The four "fair use" factors require a fact intensive analysis.   So what do you think of Kutiman's mashup/remix of videos he found on YouTube (video below)?  Cool?  Yes.  Fair use?  You decide, and check out Kutiman's other "Thru You videos on YouTube here.

Kutiman's thru-you.comhttp://thru-you.com/ says:  "Check out the credits for each video - you might find yourself".

Yes, another way for America to find itself.  Will Kutiman be YouTube's Andy Warhol, doling out 15 seconds of fame to the famous and not-so-famous?

 HT to Mike Masnick of Techdirt.

More Copyright Litigation Blog posts on the fair use doctrine here.

Copyright Litigation Blog reporting on Max Papeschi and the continuing NaziSexyMouse controversy here.  Pamela Geller, author of Atlas Shrugs Blog (and author of The Obama Administration's War on America's post "The left owns western culture. Music, media, arts.  Where does the road of leftism lead?  To hell." Full post here.  That's a relief! Up until now, everyone was thinking that NaziSexyMouse was a vast right wing conspiracy.



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SDNY: YouTube Granted Summary Judgment on Copyright Infringement - No Contributory Liability

In Viacom Int'l Inc. v. YouTube Inc., 07 Civ. 2103 (June 23, 2010 SDNY), Judge Stanton granted summary judgment dismissing contributory copyright infringement claims against YouTube and upheld the safe harbor provisions of the Digital Millenium Copyright Act, 17 USC 512(c) for internet service providers (ISPs).   This was so, even though, as Judge Stanton noted:

From plaintiffs’ submissions on the motions, a jury could find that the defendants not only were generally aware of, but welcomed, copyright-infringing material being placed on their website. Such material was attractive to users, whose increased usage enhanced defendants’ income from advertisements displayed on certain pages of the website, with no discrimination between infringing and non-infringing content.

At issue in the case is who bears the burden of policing for copyright infringements.  Do copyright owners bear the cost, or do ISP's have to act as cops?

In analyzing the legislative history of the DMCA safe harbor provisions, Judge Stanton noted:

The tenor of the foregoing provisions is that the phrases “actual knowledge that the material or an activity” is infringing, and “facts or circumstances” indicating infringing activity, describe knowledge of specific and identifiable infringements of particular individual items. Mere knowledge of prevalence of such activity in general is not enough. That is consistent with an area of the law devoted to protection of distinctive individual works, not of libraries. To let knowledge of a generalized practice of infringement in the industry, or of a proclivity of users to post infringing materials, impose responsibility on service providers to discover which of their users’ postings infringe a copyright would contravene the structure and operation of the DMCA.

Judge Stanton appeared to be impressed that when Viacom gathered evidence of 100,000 infringing videos and sent a massive takedown notice, YouTube had the videos taken down by the next day.

I discuss Cease and Desist Letters and Declaratory Judgment Actions in Chapter 6 of my Copyright Litigation Handbook.   In Chapter 7, Drafting the Infringement Complaint, I deal with Internet Service Providers.  There is a growing body of case law saying that you have to be pretty specific with your takedown notices and follow the rules in order to trigger liability of an ISP.

In Viacom v YouTube, Judge Stanton notes that providing the URL (uniform resource locator) of the infringement is the type of information that would comply with the specificity required of a takedown notice.

Opinion below:

Viacom v YouTube


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Fair Use Friday: An Old Favorite - Fair(y) Use Tale

This explanation of copyright and fair use has been viewed almost 10 million times on YouTube, so you've probably seen it.   But it's great and fits in well with my two previous fair use video posts here and  here.

Reminder, fair use is an unsettled field, expensive to litigate, be careful out there from the US Code Chapter 17 (the Copyright Act): 

§ 107. Limitations on exclusive rights: Fair use


How Current is This? Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the 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.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Fair Use Fights Captain America - Basic Books v Kinko's Copyright PSA

Remixing Videos Without Permission: Remix Culture - Analysis of Mashups in American Culture

Comment on Copyfight about a great video on Remix culture, Youtube and the battle for creative control over American culture.  Watch it.