Is it fair to use portions of a band’s song in the background of your video without the band’s permission? Harvard professor Lawrence Lessig, the great French pop-rock band Phoenix, and the international legal system agree: Yes, it’s fair. And because it’s fair, Phoenix’s Australian record label has egg on its face and less money in its bank account. Confused yet?
Here’s what happened, as explained by The Sydney Morning Herald: Lessig used snippets of “Lisztomania” from Phoenix’s 2009 album Wolfgang Amadeus Phoenix in a lecture video that was posted online in 2010. Last June, Liberation Music, the label that released Wolfgang Amadeus Phoenix in Australia, issued a demand that Lessig take down the copyrighted content or else face legal action. The demand resulted from an automated system that flagged the label’s copyrighted content on YouTube; in other words, no human review process occurred between the software detecting “Lisztomania” in Lessig’s video and the label threatening legal action. Lessig responded by filing a suit in the US District Court in Massachusetts asserting his fair use rights under U.S. and Australian law. (Ironically, the video, entitled “Open,” was about fair use.) The case was settled Wednesday with the ruling that Liberation Music must pay court costs and change its YouTube takedown request policy. The Morning Herald has more:
Under its previous policy, Liberation allowed a single employee – without proper legal knowledge or even viewing the video in question – to rely on the automated system to threaten a lawsuit. In future Liberation will not issue takedown requests without human review, according to the Electronic Frontier Foundation, which represented Professor Lessig in the case. The foundation’s intellectual property director, Corynne McSherry, said too many content owners were issuing takedowns and manipulating content filters without respect for the rights of users. “This fight may be over, but the battle continues until every content owner embraces best practices that protect fair use,” Ms McSherry said. Liberation Music managing director Warren Costello agreed the use of the song in the video qualified as fair use under US law and fair dealing under Australian law. He said he regretted that the takedown notice was issued. “Upon learning of the mistake we immediately reinstated Professor Lessig’s video, amended our review process and have worked co-operatively with Professor Lessig to resolve this matter as quickly as possible,” Mr Costello said.
Via Tumblr, the members of Phoenix issued a statement in support of Lessig’s video and fair use in general. Here’s that statement in full:
WE SUPPORT FAIR USE OF OUR MUSIC!
WE WERE UPSET TO FIND OUT THAT A LECTURE BY PROFESSOR LAWRENCE LESSIG TITLED ‘OPEN’ WAS REMOVED FROM YOUTUBE WITHOUT REVIEW, UNDER THE MISTAKEN BELIEF THAT IT INFRINGED OUR COPYRIGHT INTERESTS.
THIS LECTURE ABOUT FAIR-USE INCLUDED -AS EXAMPLES- BITS OF SPONTANEOUS FAN VIDEOS USING OUR SONG LISZTOMANIA.
NOT ONLY DO WE WELCOME THE ILLUSTRATIVE USE OF OUR MUSIC FOR EDUCATIONAL PURPOSES, BUT, MORE BROADLY, WE ENCOURAGE PEOPLE GETTING INSPIRED AND MAKING THEIR OWN VERSIONS OF OUR SONGS AND VIDEOS AND POSTING THE RESULT ONLINE.
ONE OF THE GREAT BEAUTIES OF THE DIGITAL ERA IS TO LIBERATE SPONTANEOUS CREATIVITY – IT MIGHT BE A CHAOTIC SPACE OF FREE ASSOCIATION SOMETIMES BUT THE CONTEMPORARY EXPERIENCE OF DIGITAL RE-MEDIATION IS ENORMOUSLY LIBERATING.
WE DON’T FEEL THE LEAST ALIENATED BY THIS; APPROPRIATION AND RECONTEXTUALIZATION IS A LONG-STANDING BEHAVIOR THAT HAS JUST BEEN MADE EASIER AND MORE VISIBLE BY THE UBIQUITY OF INTERNET.
IN A FEW WORDS:
WE ABSOLUTELY SUPPORT FAIR USE OF OUR MUSIC,
AND WE CAN ONLY ENCOURAGE A NEW COPYRIGHT POLICY THAT PROTECTS FAIR USE AS MUCH AS EVERY CREATORS’ LEGITIMATE INTERESTS.
A few lessons here: Sometimes you need a man to do a machine’s job; ask a band before you sue on their behalf; don’t try to beat a Harvard law professor at his own game. Watch Lessig’s lecture below.