Baby blues over the fair use copyright puzzle

Aug 21, 2008 by Kay Elizabeth

Almost every parent has a similar video tucked away in their collection – their kiddie boogying on down to some pop music and having a blast. What began as a simple sharing of a video by a proud parent however has ended up in court though for another round. As PCMag reports, this protracted saga is still ongoing.

It all began when the Feb 2007 YouTube video of a baby dancing to a Prince song was subjected to Digital Millennium Copyright Act (DMCA) takedown notices. Universal had got upset at the use of their artist’s music in it and complained to YouTube that it was a violation of copyright. YouTube dutifully took it down.

The child’s mother fired back a DMCA counter-notification, saying it was “fair use” under copyright law and therefore authorized. Back up it went. Stephanie Lenz, the mother, then filed suit against Universal in court. Universal tried and succeeded in getting the case dismissed, only for her to refile and the merry go round to begin again in mid April of this year.

So what’s “fair use” consist of anyway? My understanding is that fair use allows a certain small amount of a copyrighted work to be used freely without requiring express permission from the owner. For example, if you wanted to write an essay and quote an excerpt from a book to illustrate a point, that would be considered fair use…maybe.

There’s a reason I say maybe. You see fair use is a murky world with no plain definition of what is and is not acceptable under those terms. There’s no certain percentage you can use, no limitation on the word count laid down. If you look for solid numbers to make sure you’re within the guidelines, as far as I know you’d be hard pressed to find them.

Even the US Copyright Office page on fair use admits there’s no hard and fast ruling on it. Their best advice? If in doubt, contact the copyright owner for permission.

The closest thing to a definition they have is this, and I quote:

The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as fair use: “quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.”

Copyright protects the particular way an author has expressed himself; it does not extend to any ideas, systems, or factual information conveyed in the work.

The latest from the courtroom is that the judge says fair use needs to be considered before DMCA takedown notices are distributed. Where does that leave you then?

I’d venture to say that you have nothing but your common sense really to guide you. If you think the author might get mad at how much you’re using, then that’s a pretty good yardstick that it’s too much in my opinion. A snippet or paragraph here or there would be acceptable but not entire chapters, for example. I’m no expert but that would be my interpretation of it.

According to the PCMag article, the feeling is that Universal was trying to placate their star who’d been making noises about his music being found online. Would Prince really grudge a baby dancing to his music, maybe even a future fan in the making? I think that’s pretty sad if it’s true that’s what was behind it.

Let’s hope it’s not. The video only lasts twenty nine seconds in its entirety. I’d hate to see mute recordings of kids partying in the future or even worse, that no one felt they could share them at all for fear of reprisals.

Party on, lil’ dude!