More on Fair Use

Vindu Goel of the Mercury News had an article on the Chris Knight v. Viacom saga that I referred to in my previous post on "fair use". His conclusion is that Viacom's use of Knight's video was "fair use", but Knight's posting of the Viacom's video on YouTube was not:

Alas, under the law, Knight is wrong ...

Viacom based its clip on Knight's work, but the show's commentary and editing made it something distinct, with its own copyright protection.

Legally, that means Knight can't post Viacom's clip without permission unless he adds something that would create yet another video - in effect, a commentary on Viacom's commentary. Got it?

"The problem Knight has is what he did with Viacom's work wasn't transformative. It's what I would called unadorned copying," said Anthony Falzone, executive director of Stanford Law School's Fair Use Project.

Now, I understand that if you add nothing to a copyrighted work, then it is considered to be "unadorned copying". But if you do add something to a copyrighted work (as Viacom did to Knight's original video), then is it okay? Consider the case of the Grey Album. Illegal-art.org has the following synopsis of the case:

DJ Danger Mouse remixed the vocals from Jay-Z's The Black Album and the Beatles' White Album and called his creation The Grey Album. He sent about 3,000 promo copies out, and was soon served with a cease-and-desist notice from EMI, who owns the rights to the White Album master.

DJ Danger Mouse clearly produced a transformative work. And yet EMI felt within its rights to serve the cease-and-desist notice. This case never went to trial since DJ Danger Mouse complied with the request (another example of the imbalance between the small artists and giant corporations). So we (or rather, I) don't know what the law would say here. But what DJ Danger Mouse did does seem very similar to what Viacom did in the Knight case.

Fair use

Copyright law and the doctrine of "fair use" has become a hot topic in today's digital, interconnected world. Copyright holders have been flexing their muscle as they try to contain the unauthorized distribution of their work (not always successfully; see my earlier post on DRM). The rights of copyright holders is subject to certain limitations. An important limitation is codified in the doctrine of fair use. Section 107 of the Copyright Act says:

...the fair use of a copyrighted work ... for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.

Unfortunately, the difference between "fair use" and infringement is not always clear. Today something quite interesting happened in the world of copyright and fair use. Chris Knight writes about a video he posted on YouTube. Viacom claimed copyright over this video and sent YouTube a "take down" notice. YouTube obliged and sent Mr. Knight a notice saying that the video was being taken down. The only problem was that the video in question, produced by Viacom subsidiary VH1, was produced---without permission---from a video originally made by Mr. Knight! Mr. Knight is most aggrieved:

Viacom used my video without permission on their commercial television show, and now says that I am infringing on THEIR copyright for showing the clip of the work that Viacom made in violation of my own copyright!

I wonder which of these uses would be considered "fair use". Mr. Knight raises another interesting question:

What does this mean for independent producers of content, if material they create can be co-opted by a giant corporation without permission or apology or compensation? When in fact, said corporations can take punitive action against you for using material that you created on your own?

I wonder what the Electronic Frontier Foundation (EFF) would have to say about this.