Submission Date:
Question:
A taskforce at the college is wanting to use a recent song and video on Youtube. This would be a traditional lip dub with a little step up in production as they would use some greenscreen and use some face tracking to animate anti-racist quotes on the faces of the participants. They want to mimic some of the effects in the video as well as add some of our own. So it is transforming the work. Also, this would be a new creation based on the content of the video and use of the music.
In short, they are looking to do a lip dub of the song with their own spin on the video. The college has their own video streaming platform so this would not be on Youtube.
This would be for the campus community but there might be that people could share outside the organization.
The intent is to educate the campus and is part of a greater initiative to promote diversity equity and inclusion.
Answer:
This submission is a "fair use”[1] question coming at us from a private college, so before we delve into a reply, I have to emphasize that the specific analysis in this case is limited to that type of entity (a private, accredited school).
Since it can get boring "emphasizing" disclaimers in prose form, I will emphasize it in verse:
If ye a public library be
This analysis is not for ye
If a SUNY or public school
Do not swim in this legal pool
Okay. With that out of the way (and for those of you not put off by either the disclaimer, nor the crude verse), here is my answer:
Riffing on, parodying, and building on popular songs can be an effective way to convey a unifying or powerful message to a group. The use of a known work of art can build on shared familiarity, while modifying it with a unique twist can create a unique and unifying experience.
The technique described by the member is a very popular approach for higher education institutions, and for unrecorded performances/parodies/riffs that are done live on campus, the school's ASCAP/BMI may even apply (meaning, the site of the performance has permission).
Of course, this is 2021, and that means, it doesn't happen if it isn't on video (or in a picture). And since we are still in the midst of a pandemic (although things are looking a tad brighter, here in May of 2021), having a video that is an experience customized, created and controlled by the school is a desirable way to build remote cohesion.
When considering the use of copyright-protected content without permission, there are two factors a private institution must consider:
1. Risk management
2. Copyright infringement
"Risk management" is not about the actual legality of one's actions, but the risk that one's actions will be observed and perceived as illegal.
In this case, the additional circumstances the member lists here (not using YouTube to post the final product) enables "risk management" in two ways: a) the resulting video will not be "purged" from YouTube due to a copyright "red flag" (which can happen even if there is a fair use); and b) by hosting it on a less popular server, it is less likely to be seen by services and bots that are "out there"[2] policing copyright laws.
But of course, an educational institution doesn't want to get away with infringement, it wants to not commit it. And that is the essence of the member's question: is creation of this derivative work[3] a "fair use"?
In their question, the member has walked us through some of the "fair use" factors. The member identifies as an educational institution. The member states that the use of the work will be "transformative." The institution will use all of the audio, and be evocative of but different from the video. And, although it is not specifically mentioned as such, the described use of the resulting derivative work will (clearly) not be a replacement in the market for the original.
What is missing from the submission is the consideration: why this particular work? In order to justify a fair use-especially of an entire work (the audio), the use must not only be transformative, but there must be a reason why that particular work is chosen, and the message sent by the "transformed" work must relate to that reason.
In other words, you don't select the underlying work to re-transmit it at face value; you select the works to say something new, that at least in part, relates back to the riffed/parodied work.
The best example I have seen of this lately is a complete, unaltered use of the "Avengers, assemble," scene from the "Endgame." The clip is exactly as it is in the movie, with no changes to audio or video, except the author puts captions near the various super-heroes as they show up, giving the characters new names, and drawing an analogy to how they saw the protests of 2020 developing.
The end result of this modified "Avengers, assemble" clip is not only highly transformative--the clip is no longer in any way about the original superheroes--but the author uses the identities of the originals to make comments about both those iconic comic book figures, and the categorical names he ascribed to them. It's such a good example, it could be used to teach "fair use" in a law school class (you can see it here, or just search "endgame protestors 2020 avengers" and it'll pop right up).
With regard to this use of audio and video, it is this question--why this particular work was selected--that is the missing piece of the puzzle. So long as that piece fits in, there is a good claim for fair use.
If it is decided that there is a good reason to select the original work, the other thing to be cautious about is how the end result (the new video with the unmodified audio) is used. If it is used only as described and is built into a structured discussion about equity and inclusion--especially if the lyrics and images are used as focal points in the discussion-there is a strong case that this is an academic, non-commercial use.
However, we have to remember that at the end of the day, a college is a place where students pay to be. If the video bleeds into recruitment materials, or is not coupled with the education/discussion, the more likely the use could be found to be commercial.
So: the more "academic" the end result (and its context) is, and the more the initiative functions as both a comment on the source material, and its own, stand-alone message, the better. Since fair use is not simply an additive analysis (it's not just one factor vs. another, but rather, how the factors resolve and then inter-relate to each other), every aspect of this is critical.
Within those parameters, and if care is taken so the video is only used in the educational context (not simply sending a link to it out in a newsletter, without the educational content and context), there is a strong case to make that the new video, inspired by the song’s current video and using that unmodified song, is not a copyright infringement.
I am sorry I could not be more definitive...answers like this are why very often, people just ask for permission![4]
[1] I am going to jump right into this answer with the assumption that the reader knows the basics about fair use (Copyright Act Section 107). If you don't know the basics of fair use, you can get the gist on in these "Ask the Lawyer" RAQ’s: Educational films without a license; Fair Use and Restrictions of Song Parodies
[2] So I went to find an example of these "bots" and got more than I bargained for; here is an example of not only how video-sharing services shut down fair use on platforms like YouTube and Facebook, but a story about how this blocking is impacting how people film and transmit law enforcement activity: https://www.eff.org/deeplinks/2021/02/cops-using-music-try-stop-being-filmed-just-tip-iceberg
[3] A derivative work is a work that incorporates copyright-protected work. The right to authorize derivative works is one of the six rights reserved to the owner of a copyright. Parodies that incorporate or draw heavily from the original risk being "derivative works" (and thus infringement) unless they are 1) done with permission or 2) are a "fair use."
[4] For instance, Weird Al, although he could likely claim fair use for many of his parodies, always gets permission.
Tag:
Academic Libraries, Copyright, Derivative Works, Fair Use, Music, Parodies, Streaming
