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This DMCA Notice Got Runover By A Reindeer...
from the sing-along! dept
Eric Goldman alerts us to a lawsuit involving copyright on the infamous song, Grandma Got Run Over By A Reindeer" (yeah, I thought we'd heard the last of that one for another 11 months too...). Apparently, one of the performers on the original song, Elmo Shropshire holds at least some of the copyright on that song (on the underlying composition). Shropshire got upset when he learned that Canadian resident Aubrey Canning had uploaded a video to YouTube, which involved pictures of (you guessed it) reindeer, along with a cover version of the song. After sending a takedown to Canning (which he ignored) and then to YouTube, the video was taken offline. Canning filed a DMCA counternotice, claiming fair use, and Shropshire sued Canning and YouTube (then later dropped YouTube).
The court has ruled on the initial part of the lawsuit (ruling embedded below), dumping the lawsuit mainly due to mistakes by Shropshire, who may amend the lawsuit and refile (which seems likely). Still, there are some interesting elements of the lawsuit, including that part of Shropshire's claims is that the "fair use" DMCA counternotice was a misrepresentation and thus violates 512(f) of the DMCA. In the past, we've only seen 512(f) used (and rarely at that) against people for filing bogus takedowns, rather than for bogus counternotices. It's the part of the statute that says you can be liable for damages if you misrepresent anything in filing DMCA notices. It seems like a stretch to claim that a legitimate belief that a video was fair use -- even if it later turns out it was not -- would qualify as a 512(f) trigger. In fact, the court points out that nothing in Shropshire's lawsuit appears to indicate any actual misrepresentation.
On top of that, the main claim of the lawsuit -- straight up infringement -- failed because Canning is in Canada, and Shropshire didn't do much to say that any infringement happened in the US. Shropshire had initially claimed that the creation of the video itself was infringing, but the court points out that the creation was entirely in Canada. Shropshire's response was to then say that it was the uploading of the video in the US that was the problem. The problem with that is that's not what he claimed originally -- so changing the claim midway through isn't looked upon kindly. It's worth pointing out that Shropshire (and Canning, for that matter) appear to be fighting this battle without any lawyers, which makes for a high level of sloppy arguments.
Another -- perhaps bigger -- mistake that Shropshire made is that he apparently did not inform the co-holder of the copyright on the composition, Patsy Trigg (via Kris Publishing) and did not include Trigg/Kris as co-plaintiffs in the lawsuit. Shropshire claims he was only seeking his portion of the royalties for this video, so he didn't need to include Trigg (who appears to be his ex-wife). However, the court notes that Trigg and Kris Publishing are a "necessary and indispensable party" to any such lawsuit, since their agreement is that Shropshire and his publishing representative, Evergreen Publishing, cannot grant a license without approval of Kris Publishing -- and that Kris Publishing "is entitled to a portion of “all royalties, monies, and all other compensation” associated with musical composition." In other words, any money he gets for the song, she gets some too -- and thus she should be a part of this lawsuit.
Along those lines, another possible mistake is that Shropshire had granted an exclusive license over the copyright on the composition of the song to the publishing company, Evergreen Publishing, which was not a party to the suit. The court declines to rule directly on the matter, but at least suggests there may be an argument that Evergreen should be a party to the lawsuit as well, rather than Shropshire trying to work his way around them.
One final point: this seems like a ridiculous amount of work to go through to slap down someone who put up a video of your campy novelty song with some photos of reindeer. But, perhaps that's just me.
The court has ruled on the initial part of the lawsuit (ruling embedded below), dumping the lawsuit mainly due to mistakes by Shropshire, who may amend the lawsuit and refile (which seems likely). Still, there are some interesting elements of the lawsuit, including that part of Shropshire's claims is that the "fair use" DMCA counternotice was a misrepresentation and thus violates 512(f) of the DMCA. In the past, we've only seen 512(f) used (and rarely at that) against people for filing bogus takedowns, rather than for bogus counternotices. It's the part of the statute that says you can be liable for damages if you misrepresent anything in filing DMCA notices. It seems like a stretch to claim that a legitimate belief that a video was fair use -- even if it later turns out it was not -- would qualify as a 512(f) trigger. In fact, the court points out that nothing in Shropshire's lawsuit appears to indicate any actual misrepresentation.
On top of that, the main claim of the lawsuit -- straight up infringement -- failed because Canning is in Canada, and Shropshire didn't do much to say that any infringement happened in the US. Shropshire had initially claimed that the creation of the video itself was infringing, but the court points out that the creation was entirely in Canada. Shropshire's response was to then say that it was the uploading of the video in the US that was the problem. The problem with that is that's not what he claimed originally -- so changing the claim midway through isn't looked upon kindly. It's worth pointing out that Shropshire (and Canning, for that matter) appear to be fighting this battle without any lawyers, which makes for a high level of sloppy arguments.
Another -- perhaps bigger -- mistake that Shropshire made is that he apparently did not inform the co-holder of the copyright on the composition, Patsy Trigg (via Kris Publishing) and did not include Trigg/Kris as co-plaintiffs in the lawsuit. Shropshire claims he was only seeking his portion of the royalties for this video, so he didn't need to include Trigg (who appears to be his ex-wife). However, the court notes that Trigg and Kris Publishing are a "necessary and indispensable party" to any such lawsuit, since their agreement is that Shropshire and his publishing representative, Evergreen Publishing, cannot grant a license without approval of Kris Publishing -- and that Kris Publishing "is entitled to a portion of “all royalties, monies, and all other compensation” associated with musical composition." In other words, any money he gets for the song, she gets some too -- and thus she should be a part of this lawsuit.
Along those lines, another possible mistake is that Shropshire had granted an exclusive license over the copyright on the composition of the song to the publishing company, Evergreen Publishing, which was not a party to the suit. The court declines to rule directly on the matter, but at least suggests there may be an argument that Evergreen should be a party to the lawsuit as well, rather than Shropshire trying to work his way around them.
One final point: this seems like a ridiculous amount of work to go through to slap down someone who put up a video of your campy novelty song with some photos of reindeer. But, perhaps that's just me.
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There is a reverse on this too, which makes the DMCA pretty much correct (even if filed incorrectly): Nobody could issue a license without the other, and as such, the guy in Canada could not obtain a license.
As YouTube is based in the US, the copyright violation occurs in part in the US. As the US and Canada have various trade agreements (including some on copyright), Canada isn't a place where someone can go hide. Sort of explains why ACTA style agreements are needed to make this stuff more transparent, even as it goes over borders.
In the end, the judge explained to the plaintiff exactly how to get the job done. It could have more easily been done by only sending a DMCA to youtube, who would have likely just taken the video down.
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ACTA style agreements are needed like a dead artist needs extended copyrights to incentivize the creation of more works.
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Shooting oneself in the foot...
I don't understand how people can think that a lack of exposure is somehow better than a very small handful, (if that), of sales lost due to 'pirating' some YouTube posting.
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I wonder why he's divorced...
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Am I missing something here?
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Re: Shooting oneself in the foot...
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Re: Shooting oneself in the foot...
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DMCA NOTICE
Take a look and see if you see where the original writer as I said, gave them the rights to that song to do as they see fit.
Maybe I'm crazy but this whole law suit seems a massive waste of time
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As mentioned in the very first paragraph, the guy DID send a DMCA takedown to YouTube who took it offline.
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a high-priced lawyer
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Remember, fair use for non-commercial means keeping it to yourself. Publishing it in public, even if you have no intention of making money from it, makes it a commercial work. Putting it on a for profit website (trading hosting for the video) makes it a commercial transaction.
Perhaps you need to relearn what "non-commercial" really applies to.
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Why stop at just the one video?
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Better to be fool and keep your mouth shut, then to say something and prove that you are.
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Better to be fool and keep your mouth shut, then to say something and prove that you are.
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You are simply incorrect here.
Read (for example) the terms and conditions for non-commercial use of Magnatune music which is licensed via a cc non-commercial license and you will find that YouTube is regarded as non-commercial.
You are trying to push the law beyond what it actually says. (A common trait amongst legal extortioners).
Using the logic that you are applying I could prove that absolutely EVERY use is commercial.
It is you that needs re-education.
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For cover versions the license is compulsory. All the guy had to do was go to the appropriate agency and pay the fee. No-one can stop him.
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Sing with me now...
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Almost every claim in the paragraph above is false.
I mean, you're not even close.
Putting content on YouTube does not take away fair use defenses. Publishing something in public does not make something commercial. And, even if something is commercial (which this was not), it does not remove a fair use defense. Commercial use is only one factor, and as we've discussed many times in the past, there is a ton of fair use that is commercial.
Not sure why you would put forth an entire paragraph that is 100% wrong, but next time, perhaps, consult the law.
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It would be hilarious if..
Suck on that, Shropshire.
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Re: I wonder why he's divorced...
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