The legal tabloid blog Above the Law posed the question on Friday whether a video posted on YouTube of a group of young men playing on a beach and lipsyncing to Miley Cyrus’s song “Party in the USA” was a fair use.
As a reminder, fair use is a copyright doctrine by which someone who has infringed a copyright can avoid liability. The doctrine began as common law, but was codified by Congress in 17 U.S.C. § 107. As codified, the doctrine consists of four factors: (1) purpose and character of the use, (2) nature of the copyrighted work, (3) the amount and substantiality of the portion used, and (4) the effect of the use upon the potential market for or the value of the copyrighted work. If a court (or jury) finds that the factors balance in favor of the user of the copyrighted work, the use is not considered an infringement.
There are certain purposes that are enumerated as weighing in favor of a finding of fair use, including criticism and comment, and other purposes that courts have determined serve similar social purposes, such as parody. Here, the video could in fact be a parody of Cyrus’s song. The lyrics of the song concern a girl who was nervous about coming to Hollywood until she heard a song by the artist Jay-Z, at which point she put her hands up, nodded her head like yeah, moved her hips like yeah, and felt better. Later she hears a song by Brittney Spears and her own song, and repeats the process. Similarly, the men in the video appear to be letting their butterflies fly away as they listen to the Cyrus song. In addition, the parody is titled “Party in the FIP” (FIP stand for Fire Island Pines). As Fire Island is known for being a major destination for gay men, the video may also be making the comment that these men were nervous about living as gay men in the USA, but then, hearing the song, they knew they would be okay.
There is no question that Cyrus’s song is creative within the meaning of the fair use doctrine and was published; therefore the nature of the work weighs in favor of the copyright holder.
The video uses the entire song, but as it is likely a parody, that is has taken the heart of Cyrus’s work should not weigh against it. The essence of parody requires the summoning up of the work that is the subject of the parody.
Finally, it is unlikely that those who would purchase Cyrus’s song or watch an official music video (should one be produced) would be swayed away by the production of this work. On the other hand, if one only wanted to hear the music and ignored the video, there would be no difference between listening to the parody and listening to the original song. However, as this is a YouTube video and not downloadable (without special software), it can only be played in certain circumstances. Whereas the legitimate version of the song is easily transferred to other media.
At the end of the day, I would anticipate the use of the song to be considered a fair use. It doesn’t much matter though, because Disney seems to be okay with the use. Furthermore, Ms. Cyrus was “OBSESSED” with it.
Cross Posted from The Spontaneous Huddle
2 Comments for Fair and Enjoyable Use
Daniel | August 30, 2009 at 6:19 pm
Joshua L. Simmons | August 30, 2009 at 11:17 pm
Indeed the content industry was/is perpetually looking for technological, legal, and hybrid methods of preventing mass-infringement. It’s also true that these attempts have been largely unsuccessful, despite hundred of thousands (millions?) of dollars being spent in their development.
If the YouTube parody video were to supplant the market for the legitimate version, clearly the fourth factor would weigh in favor of the copyright holder. One does wonder, however, whether a court would find it relevant that despite the infringer’s purpose of creating a parody, the resulting product could in fact serve as a substitute with some minor alteration by the end user. I could imagine a court saying that the determination of fair use must be made based on the product that was created by the infringers use, and not by other uses an end user might make of the product.
For example, imagine a product being created which served several uses that were non-infringing either because they do not infringe or they are covered by fair use, perhaps a audio-video recording device. Then imagine that the end users of the product began using it for infringing uses, should the original creator of the product be liable to the copyright holders whose works are being infringed?
One other note. Daniel points out that he doesn’t think the arguable parody even infringes on the official video. I do not believe Disney or Cyrus have released an official video for this song. However, if they did and the parody was of the video only but used the music in addition, would that change the calculus? In other words, Cyrus creates a copyrighted song and a copyrighted video and combines them. The parodists then infringe both to create a parody only of the video, does the fair use of the video extend to the fair use of the song?
It’s interesting that you mention that the legitimate version of the song is easily transferred to other media, as we had a few years of the content industries’ kicking and screaming (and § 1201 enacted) to prevent that.
Let’s imagine that the legitimate version of this song were released on a CD equipped with copy protection which may be circumvented by a magic marker — about the same level of protection as the audio track or indeed any video posted on Youtube has. In this situation, would the fourth factor (assuming that we’re talking about the market for the audio, not the video, since I don’t think the arguable parody even _infringes_ on the official video) be neutralized?
Perhaps the low-quality audio accompanying Youtube clips doesn’t affect the market for the original audio. Whether this makes a difference may turn out to be pretty important, as more people turn to Youtube as their preferred version of the Celestial Jukebox. Many music video publishers post official versions of music videos on Youtube for free consumption, whether or not they know how easy it is to download the videos or extract their audio, presumably under the belief that their actions are at the very least not _hurting_ the potential for future revenue.
[standard observations on failure of courts / legal thought to comprehend the almost invariably positive effect on the market of much infringement, let alone arguable fair uses on Youtube]