YouTube: Using copyrighted music on your videos - What constitutes to fair use under copyright law

Forums › Off topic › YouTube: Using copyrighted music on your videos - What constitutes to fair use under copyright law

BlueToothKiwi

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#38085 24-Jul-2009 09:04

This morning I noticed that two of my videos in my YouTube channels have the sound track blocked. Under the video, It has a big message that says, 'This video contains an audio track that has not been authorized by WMG. The audio has been disabled..'

I do accept I have used copyrighted music in the first few seconds of the introduction. I assumed it would be acceptable under the fair use clause.

Youtube does have a policy to rectify disputes. It has an electronic form where you can dispute this. You do have to sign a declaration stating, 'I have a good faith belief that the material was disabled as a result of a mistake or misidentification, and that I am not intentionally abusing this dispute process'.

It also warns me that 'submitting an invalid dispute could result in penalties against your account.' So naturally, I am nervous about submitting my dispute until I am sure I have a valid case.

What I want to know is what constitutes as fair use. Surely a few seconds of a track used in the introduction of a video like this one is not a breach where I used the song 'Fire Starter by the prodigy]?

video

Tim M, Auckland
Blog: http://paddler.co.nz

tonyhughes

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#238530 24-Jul-2009 09:15

Do you own the rights to the song?

For what reasons are you claiming fair use? Comparison? Critical commentary?

"I want to use it to make my video better in some way" really doesn't count as fair use!

wonderferret

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#238533 24-Jul-2009 09:20

EDIT: Cleaned up some of the formatting

I am not a lawyer so don't accept this as gospel.

New Zealand doesn't have a "fair use" doctrine as part of the copyright act. The closest we have is "fair dealing"

As far as I can tell the relevant sections of the Copyright Act 1994 that would apply is section 41 as amended in 2008.

If the sound track is recorded incidentally it is not a violation e.g. radio playing in the background, car drives past with the song playing on the radio etc. Using it as a background track for a video is probably not permitted.

Relevant section pasted below

Incidental copying of copyright work

(1) Copyright in a work is not infringed by

(a) the incidental copying of the work in an artistic work, a sound recording, a film, or a communication work; or

(b) the issue to the public of copies of an artistic work, the playing of a sound recording, the showing of a film, or the communication of a work to the public, in which a copyright work has been incidentally copied; or

(c) the issue to the public of copies of a sound recording, film, or communication work to which paragraph (a) or (b) applies.

(2) For the purposes of subsection (1), a musical work, words spoken or sung with music, or so much of a sound recording or communication work as includes a musical work or those words, must not be regarded as incidentally copied in another work if the musical work or the words, sound recording, or communication work is deliberately copied.

xpd

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#238536 24-Jul-2009 09:23

I had the same thing... video had 3 tracks in it and it got removed for the last track although it wasnt as well known as the first two!

Copyright is madness when youve been accused of breaching it...... surprised one video of my daughter dancing hasnt been removed because you can clearly hear what music is playing in the background and its copyrighted...

Gavin / xpd / FastRaccoon / Geek of Coastguard New Zealand

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Tohe

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#238542 24-Jul-2009 09:42

I think copyright law is a bit draconian and needs to be updated to move with the times.
I can understand them removing a LOT of videos that are just 1 or 2 static pictures with a song in the background though
(There are heaps of those on youtube)

BlueToothKiwi

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#238547 24-Jul-2009 09:48

Thanks wonderferret. It does not seem I have a leg to stand on - so I wont waste my time disputing it. Obviously my idea of 'fair' in the words fair use (and the NZ equivalent, fair dealing) is very different from the legal interpretation.

Anyway - YouTube also had a button called 'AudioSwap'. When I clicked on it, it gave me a list of songs I can use in its place for the above video.

I clicked on 'I feel Lucky'. It automatically selected a song [Bring Me To Life' by Evanescence] - it is better than watching the video in silence.

I am still annoyed - as I now lost all the sound of the fireworks / laughter and the atmosphere that made the original video what it was. I wish YouTube will allow me to redub the sound (without the offending intro music) and re merge it with the existing video.

Tim

Tim M, Auckland
Blog: http://paddler.co.nz

freitasm

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#238548 24-Jul-2009 09:49

Remember, YouTube does not operate under New Zealand law. If you are not using the music track under what the U.S. law would consider Fair Use, then you are out.

allstarnz

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#238568 24-Jul-2009 10:59

I am getting annoyed with this whole copyright stuff with YouTube. The record companies need to get out there and put their official videos up if they're going to get grumpy with unofficial versions being put up.

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BlueToothKiwi

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#238573 24-Jul-2009 11:05

freitasm: Remember, YouTube does not operate under New Zealand law. If you are not using the music track under what the U.S. law would consider Fair Use, then you are out.

Thanks, mauricio. I did some further research and this is what I found:?

'Copyright Disclaimer Under Section 107 of the Copyright Act 1976, allowance is made for "fair use" for purposes such as criticism, comment, news reporting, teaching, scholarship, and research. Fair use is a use permitted by copyright statute that might otherwise be infringing. Non-profit, educational or personal use tips the balance in favor of fair use.'

I could pretty legitimately argue against the removal of the backing track - but frankly I got better things to do with my life - and besides I don?t feel morally justified - in the end of the day - some other guy did write the song that I have taken liberty with.

Anyway - I went through my old YouTube video archives - it looks like YouTube have removed some of my best (and original) videos permanently including some that used to get over 100k views / year - all because of the audio tracks.

In cases where the audio track is only incidental or only audible at the introduction (like the one above), they gave me an option to do an audio swap.

In some cases, where the copyright infringement of the background music was more blatant, they actually REMOVED my videos. This means I can?t even change the audio track to my original footage using the audioswap feature.?

However, I did notice that the embedded videos of the removed content are not affected - as long as you dont click through to the YouTube web site.

Here is an examples of blog posts where you can see my embedded videos - but if you click through, you get the 'This video is no longer available due to a copyright claim by WMG.' message.

http://thenxtstep.blogspot.com/2007/09/using-new-power-function-motors-with.html

And this one below:

Tim M, Auckland
Blog: http://paddler.co.nz

Tohe

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#238579 24-Jul-2009 11:36

I found this amusing

BurningBeard

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#238587 24-Jul-2009 12:08

It's gotten to the point now where you can't even have a video of you playing Metallica on Guitar Hero. Some people get around this by fading the song in and out.

Some users have started posting official videos with live bootleg recordings of the same song over the top.

My very metal Doctor Who theme

dickytim

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#238591 24-Jul-2009 12:16

I'd better check my video's, I did a Dressge test to chopped and sliced metallica...

BlueToothKiwi

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#238593 24-Jul-2009 12:26

Thanks Tohe for the link. Funnily enough all the ones they had issues with all happened to be Warner - just make you wonder how HUGE their royalties list must be.

OK - I have managed to sort all the reported 'violations' on my videos:

I deleted a few, audio swapped a few and disputed a few. Hopefully I dont have to worry about it.

Next time I make a video, I will compose my original audio track...

Tim M, Auckland
Blog: http://paddler.co.nz

rossmnz

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#238617 24-Jul-2009 14:08

Bastards!

I used "The firestarter" by Prodigy too as the backing music for my Wow twink video.
Nicely timed it to get honour kills with "you're the victim".

How dare they. It makes my video at least 10 times better with music! Im sure Keith flint et al are far too busy with cocaine, groupies and the like to care about my video.

I think i should dispute this!!

note: for those of you not bright enough, im being sarcastic here. <3
However, this story is real!

The force is strong with this one!

BlueToothKiwi

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#238658 24-Jul-2009 15:33

note: for those of you not bright enough, im being sarcastic here. <3

However, this story is real!

Point taken. And I suppose your WoW video was this one, Rossmnz?

Tim M, Auckland
Blog: http://paddler.co.nz