Prince's recent DMCA takedown on six second clips on Vine of a Prince concert at SXSW. These clips were clearly fair use -- showing tiny snippets where the music isn't even recognizable.
Prince's DMCA takedowns sent over fan-recorded concert videos of his performance of Radiohead's song "Creep." As EFF points out, Prince has no real copyright claim here. The copyright of the song is Radiohead's -- and Radiohead demanded that the videos be put back online -- and the copyright on the video is whoever took the videos. But that didn't stop Prince.
Of course, no surprise here, Prince's connection to the infamous YouTube takedown of Stephanie Lenz's 29-second video of her toddler dancing to a Prince song in her kitchen. The lawsuit over that one is still going on. That one might actually be more about Universal Music than Prince, but given his other takedown actions, it would be surprising if he didn't support Universal on that one (even if he's had other disagreements with the label).
Of course, if the EFF wanted, it could make the list even longer. Prince sent a cease & desist to an artist who put together a puppet-based tribute to the artist. He similarly threatened a bunch of fan websites, claiming that any photos of him or his album covers was infringement. Oh, and then there was the time he sued 50 musicians for having the temerity to record a tribute album to Prince for his birthday. Such a nice guy.
We just posted about Prince's NPG Records issuing DMCA takedowns on a set of Vine videos. While noting that Prince regularly seeks to shut down internet support of his work far beyond what the law allows, we also pointed out that, given the 6 second limit on Vine videos, it seemed almost certain that the videos in question would be protected as fair use and/or de minimis use. After posting that story, we heard from Zack Teibloom who, it turns out, is the person who shot and posted the Vine videos in the first place. They were taken at Prince's SXSW concert. He noted that he treated the takedowns as "cease and desist" letters and chose to take them all down. Before he did so, we were able to snag one of the videos, which we've now posted to YouTube solely for the discussion over whether or not the original takedown was an abuse of the DMCA.
We believe, strongly, that NPG's takedown notice is faulty, and it's quite possible that it violated 512(f) of the DMCA in that it appears NPG knowingly misrepresented that the works were infringing. In the DMCA notice, NPG claims:
These are unauthorized recordings and are unauthorized synchronizations
As such, I have a good faith belief that use of the copyrighted work
described above is not authorized by the copyright owner (or by a third
party who is legally entitled to do so on behalf of the copyright owner)
and is not otherwise permitted by law. I hereby confirm that I believe the
tracks identified in this email infringe my copyright.
However, it is incorrect that the use was not permitted by law. Under both fair use and de minimis use, such a use is clearly permitted by law. Furthermore, as a court found in the Lenz v. Universal Music Group case, the filer of a DMCA takedown needs to take fair use into account before issuing the takedown. Separately, as a bootleg video, this might not even be subject to the DMCA at all.
As per Vine's own limitation, the clip is a mere six seconds long, showing five disjointed clips of a song. If we were to do a four factors test for Teibloom's original use, it seems clear that it is fair use.
The purpose and character of the use:
The showing of brief six second, disjointed clips was clearly just to highlight that Teibloom had attended the SXSW show, and was linked from his review just to highlight the sense of what the show was like. It's clearly not a full use of the song or anything attempting to be a replacement for the song or the concert itself. It was a brief "view" of one attendee's perspective, which is clearly transformative from the original work. As such, it clearly "added value" to the original, since it was showing something different and unique from the original, while providing some perspective on the experience of attending such a show.
The nature of the copyrighted work
This was a recording of a brief bit of a live event, not of the sound recording or anything like that. Again, the point was to capture the live atmosphere and experience. This prong of the fair use test is supposed to be to protect the dissemination of information, and that seems clear from the use.
Also, even the brief bit of music that you hear is a pretty generic soul / funk music riff, rather than something highly unique and identifiable with Prince himself. I'm not even sure that the song being played is a Prince song. It sounds so generic and short it's difficult to identify. As a test, I tried to use Shazam on it, and despite claiming to be able to identify a song with as little as one second of music, it said it could not find a match. If you'd asked me I would have thought it was a just a generic James Brown-style riff rather than anything specific to Prince. Given that, while the performance is potentially covered by a copyright, it's not clear that the song is covered by Prince's copyright.
Hell, just the fact that it's unclear what the song is highlights why this is almost certainly fair use or de mininmis use. One of the characteristics of de mininimis use is if you can distinguish the work. When even the expert automated ears at Shazam can't do that...
The Amount and Substantiality of the Portion Taken
Six disjointed seconds. 'Nuff said.
The Effect of the Use Upon the Potential Market
There is clearly no negative use whatsoever. It is not as if someone will not buy or license a Prince song because this clip was "good enough" as a substitute. There is no rational way to support such a claim.
That said, it is possible that Prince's takedown actions might cause people to no longer want to support his works, but that's his own actions, not this particular video.
That's for Teibloom. As for us reposting the video and discussing it here, our use is even more transformative, as it is now about the discussion on whether or not the video itself is fair use. Without showing the video it is difficult to have a reasonable or competent discussion on whether or not it was fair use.
Either way, we believe that Prince and NPG Records are abusing the DMCA, potentially in violation of 512(f), and using the DMCA to take down perfectly legitimate videos that are allowed under US copyright law.
Ah, Prince. The purple-loving musician has built up an irrational hatred for all things internet over the years, mostly focused on his belief that he should have 100% control over everything he has ever done. He's gone after companies and fans for posting pretty much anything. His music is also at the heart of the (still ongoing) Stephanie Lenz case, in which Universal Music Group issued a copyright takedown on a 29-second video with some Prince music in the background. In that case, the court said that UMG needed to take fair use into account before sending the takedown.
Given that, it seems rather surprising to find out that Prince is targeting even shorter clips -- including six second clips on Vine, the Twitter offshoot/acquisition, that allows people to post short video clips no longer than 6 seconds. Vine has built up a decent following pretty quickly, and it's difficult to see how anyone could argue that music appearing in such a Vine video wouldn't be either fair use or de minimis use (or both). But don't tell Prince that.
The DMCA takedown comes from NPG Records, which is Prince's personal record label, and names eight Vine clips, which apparently have all been removed. The notice was just sent on March 26, meaning we're still within the time frame in which someone could have filed a counternotice. One hopes that counternotices are being filed, and (perhaps) that someone is willing to challenge Prince on claiming that such videos are not fair use. Would he honestly claim that such a video harms the market for his music?
from the dawwwww...-he's-so-CUTE-when-he's-angry! dept
For an artist who has worked tirelessly to maintain his artistic integrity (even going so far as to change his name/wear a mask), Prince has done more than most to ensure that his vision remains intact all the way up to the fans' ears. Unfortunately, he seems to view this "connection" with his fans as one-way.
Somewhere deep down, we're sure Troy Gua expected he'd someday have to face saying goodbye to the much-lauded miniature doll that was at the center of his art series, Le Petit Prince. This was no small project -- Gua literally recreated many famous Prince moments with the little guy and even included detailed props like the Purple Rain motorcycle. Ironically, we were recently emailing with Gua to do a piece about the new calendar he was putting out featuring some of these photographs, but this week Gua sadly informed us the dream is over. He received a cease and desist letter from the real Prince's people on Monday.
Not only did Troy Gua receive an angry email, but also a very official hard copy via FedEx. The order states that Gua is not allowed to "exhibit the photo work or the sculptural doll," which covers pretty much the entire Le Petite Prince project. Gua has decided not to fight back and has left instructions on his website asking fans to only leave positive comments.
Gua's taking the high road, but Prince seems unwilling to allow any sort of expression based on him or his works to see the light of day anywhere. CityPages points out that another artist was hit with a C&D for posting Prince remixes for streaming only at her SoundCloud page. Presumably, the upcoming calendar would be considered commercial use of Prince's image (I suppose) and that may have urged on the Purple Hammer, but DJ Lenka Paris' mixes weren't being sold or made available for download, so it's not entirely a crackdown on commercial use.
It may be that Prince wants all things "Prince" to originate from Prince only. If so, Prince should learn to let go. No one has that much control and attempting to maintain "artistic integrity" by stomping out anything not officially blessed by the man himself is an awful way to treat fans. Here's exactly how to do CwF WRONG:
If it wasn't clear before, his Purpleness has some very stringent ideas around what his fans can and cannot do in their appreciation of him. In a nutshell: Yes, please do pay $250 for that concert ticket, but 'Hova help you if you seek to publicly admire him through music or art.
Prince has a large fan base and it appears that his fans won't fight a legal battle with a.) someone with much more money or b.) someone they respect greatly, even if that respect is completely one way. One of those is logical and the other is understandable, but either way, it's tough for non-Prince-acolytes to respect an artist whose response to fan efforts that stray into "his" territory is unvarying legal thuggery.
Yesterday, our most popular post involved a story of a questionable DMCA takedown notice leading to the shutdown of 1.5 million sites. This was not a first. We've written numerous times about bogus DMCA notices and the damage they can cause by censoring works without an adversarial hearing first. And one thing that always comes up is the question of whether or not there's punishment for bogus DMCA takedowns. In general, the answer has been no. There may be a few very specific circumstances under which whoever signed off on a bogus DMCA notice could be charged with perjury, but the specifics there are quite limited.
Now, one of the more famous cases concerning bogus DMCA takedowns -- which started all the way back in 2007 -- is heading back to court today, to see if Universal Music can be punished for issuing a bogus takedown on a woman, Stephanie Lenz, for posting a 30-second video of her toddler son dancing to Prince's "Let's Go Crazy." If you haven't seen the video, the song is barely audible, and the whole thing is a 29-second clip. There is a strong fair use argument.
The case has been taking the slow route through the court system, with Lenz (and the EFF) suing Universal Music for taking down the video without considering the possibility of fair use. Universal claimed that fair use is merely a defense, and thus there is no obligation to consider fair use first. The court, thankfully, disagreed, and said that damages were available, but quite limited.
And now... the arguments are kicking off over whether or not Universal Music should get in trouble for its actions. UMG, for its part, argues that it shouldn't have to run everything through a fair use filter first, and that even if it was required to do so, it probably couldn't. EFF points out the ridiculousness of saying there are no consequences to bogus tweets.
"Parents are allowed to document and share moments of their children's lives on a forum like YouTube, and they shouldn't have to worry if those moments happen to include some background music," said [EFF IP Director Corynne] McSherry. "Content companies need to be held accountable when their heavy-handed tactics squash fair use rights. We hope the judge gives Ms. Lenz the closure she deserves, and shows content owners they can't trample over users' rights."
My guess is that the court won't punish UMG, arguing that it did all it needed to do. But it would be nice to actually put some teeth into rules that prevent abusing the DMCA to silence others' speech illegally.
Prince is apparently continuing his war with the modern world. The rockstar who once seemed to be on the cusp of leading the music world into the digital era, seems to have gone so far to the other extreme that he's become a joke. He went on the legal warpath against some internet sites, completely ignored his own website, which he charged people to access, and declared that the internet was over and he'd no longer allow his music online. Oh, and then there was his claim that if someone covers your song, the original no longer exists, despite the fact he's done a bunch of covers.
He's now done another interview, and despite his "people" telling the interviewer that he wasn't allowed to ask about Prince's views on the internet, Prince dove in anyway and explained why digital music impacts your brain in a different way:
His management's pre-interview list of guidelines insisted, "Please do not discuss his views on the internet," but perhaps Prince hasn't read them. "I personally can't stand digital music," he says. "You're getting sound in bits. It affects a different place in your brain. When you play it back, you can't feel anything. We're analogue people, not digital." He's warming to his theme. "Ringtones!" he exclaims. "Have you ever been in a room where there's 17 ringtones going off at once?"
Does he have a ringtone?
"No," he says, looking as offended as if I'd asked him if he drove a clown car. "I don't have a phone."
He also appears to have picked up some misguided notions from some in the recording industry that it's really all the tech world's fault that people aren't buying music any more. Also, he claims that the White House has asked him to come talk about "piracy." Though it's not uncommon for the White House to hear from foreign dignitaries, this may mark the first time they have invited a representative from another planet.
"We made money [online] before piracy was real crazy. Nobody's making money now except phone companies, Apple and Google. I'm supposed to go to the White House to talk about copyright protection. It's like the gold rush out there. Or a carjacking. There's no boundaries. I've been in meetings and they'll tell you, Prince, you don't understand, it's dog-eat-dog out there. So I'll just hold off on recording."
That's barely comprehensible in general (what does the second to last sentence have to do with anything?), and even if you accept the basic statements about "piracy," the rest doesn't make much sense. Prince has already figured out how to deal with that, doing his deals with newspapers to pre-sell his CDs, and recognizing that the real money is in live shows (for which the music acts as an excellent promotional tool). So why is he complaining?
Ah, Prince. The artist, who is notoriously controlling concerning his own music, has apparently decided that the latest evil in the world is cover songs and the compulsory licenses that make them possible. As you may or may not know, it's legal to do cover songs, because of compulsory licensing laws that say as long as you pay a set fee, you can cover any song (why such laws don't apply to samples is weird, and leads to the bizarre situation in which it's legal to cover an entire song, but do just a second of the song and you may be in legal trouble). Either way, Prince is not a fan. In an appearance on the George Lopez show (embedded below), Prince comes out against the entire idea of cover songs because, apparently, it destroys the original:
Prince: I don't mind fans singing the songs... My problem is when the industry "covers" the music. See covering the music means that your version doesn't exist anymore. A lot of times, people think that I'm doing Sinead O'Connor's song and Chaka Khan's song when in fact I wrote those songs. And it's okay when my friends ask to do them, but there's this thing called the compulsory license law, which allows artists, through the record companies, to take your music, at will, without your permission. And that doesn't exist in any other artform, be it books, movies -- there's only one version of "Law and Order' (crowd laughs). There are several versions of "Kiss" and "Purple Rain."
George Lopez: There should be only one version of music.
Prince (sarcastically): You would think... (crowd laughs)
Hmm. Well. So, apparently Prince's version of "Purple Rain" no longer exists. I had no idea. As for Prince's final point, why would you think that? Why is there a problem of anyone doing a cover? Rather than the original no longer existing, it actually exists more, in that more people are aware of and interested in the original.
Of course, all this made me curious. Surely, Prince has covered others songs before. And, in fact, he has. Many, many, many times. Some folks on the Prince fan boards have made a nice list of all the many songs that Prince has apparently "destroyed" of other artists by covering them either for albums or live shows. Of course, perhaps he did this out of spite for those other artists. In fact, Prince has been accused of covering the Foo Fighters during his Superbowl performance to "get revenge" on the Foo Fighters for covering one of his songs. Some revenge. "Destroying" their original song like that in front of the largest TV audience around. Must suck.
from the logic-is-not-allowed-in-prince-world dept
We've already discussed Prince's bizarre anti-internet stance, and it seems that it's left an awful lot of people scratching their heads. As his latest album was released only via the UK newspaper, The Mirror, this past Saturday, the UK press is pointing out how this plan will backfire. Now, some will immediately dismiss these articles as complaints from competing newspapers who were not the go to offering for the latest Prince album. But their arguments do make sense. The Telegraph points out that, this anti-internet crusade seems like a huge commercial blunder, as most people will end up getting the album in ways that don't benefit Prince directly, even though he easily could have set things up to gain some of the benefit. The Guardian is running a similar article, pointing out that it seems odd that Prince -- who comes off as very much "anti-" the traditional music business seems to be going even deeper into traditional views of the recording industry: such as signing with Universal music and then shunning his fans online. Even if you don't believe that there are reasonable internet-based business models online, it's hard to see how pretending the internet doesn't exist at all is going to help you.
from the how-do-these-people-keep-their-jobs? dept
This one is a bit surprising. Following the recent nutty statements from Prince, Kara Swisher has decided to take the contrarian position to explain why Prince might not be so crazy after all. Her reasoning is that she's spent several days down in LA talking to entertainment industry execs (her first mistake), and they seem to agree with Prince that the internet is a darned problem. Of course, to some extent, that's like asking the leading buggy whip makers their feelings on automobiles. Just because they haven't figured out a way to thrive doesn't mean that the automobile revolution is "over."
After spending several days here in Los Angeles this week, talking to execs, talent and others who toil in the entertainment industry--I can't say what I am hearing is that much different in terms of the continuing frustration with the lack of decent business models to replace the ones that have worked for so long and been so lucrative for the entertainment and media industry.
This is how disruptive business models work. The disrupted whine and complain about how the disruptors haven't shown them how to continue making the same monopoly rents they made in the past. But that, of course, ignores the nature of disruption. Disruption doesn't work by having someone come along and show the legacy players how to exactly replicate their old profits. It's the exact opposite of that. Disruption is when others figure out how to break down the barriers to do something more efficiently, and undercut the old business model. But that doesn't mean that there's anything wrong for the underlying benefit that people get.
More entertainment content -- movies, music, books -- are being made today than ever before. Anyone bitching and complaining about how the internet is "destroying" the industry isn't paying attention. What they should be focused on are all of the massive new opportunities created by this sudden glut of content, combined with massively more efficient (and often free) methods for content creation, distribution and promotion.
From music to movies to television, the biggest minds here still sound perplexed as to what will finally be the golden ticket to carry them through to the inevitable next era of digital distribution.
That single sentence basically describes the problem. These guys are sitting back and waiting for someone to hand them a golden ticket that replicates the old ways of doing things. That's not how it works. No one gave the buggy whip makers a golden ticket that let them keep their old lines of business going.
But the lack of a golden ticket most certainly does not mean there are no business models. Those who are embracing new business models are finding plenty of opportunity to do amazingly well (in fact, better than they did before). But, for the most part, it involves hard work and multiple streams of revenue. It's not the old "sit back and let the cash roll in" model that the industry is used to. But, some of us think that's a good thing.
"Why is the consumer always right?" said one exec to me this week in a typical statement. "You can't have a business if there is no business model."
It's a good thing the exec who said that did so anonymously, because otherwise his or her board of directors should be calling for him to be fired. The consumer is always right in a competitive marketplace because if you don't serve them, your competitors will. That there are still entertainment industry execs who don't get this is scary. And, saying there are "no business models" is so wrong that it again seems troubling that this exec still has a job in the industry. We spend a lot of time pointing to all sorts of working business models every day. They may not be the "golden ticket" that this exec wants where he gets to sit back and relax and see the cash flow in, but they can actually bring in a lot more money by leveraging a more efficient system, connecting better with fans, and giving them a real (scarce) reason to buy, rather than trying to bully them into paying through artificial scarcities.
From there, Swisher reverts back to Prince's statements:
If you remove the sillier parts of his quote that preceded it, such a statement is not unreasonable from an artist who wants to be paid for his creative efforts.
Thus, instead of mocking that sentiment, perhaps it is time for tech leaders to figure out a way to keep talent from being dragged into the future without so much kicking and screaming.
The role of the disruptor is not to make life easy for the disrupted. Swisher and these execs seem to be confusing the role of certain folks in the legacy industry with the overall entertainment industry itself. As noted, the entertainment industry is thriving. More movies, music and books are being created. More money is being spent. It's just that it's going to different players. There's no reason to "figure out a way to keep talent from being dragged into the future." The opportunities and wide open path are there. The problem isn't that tech leaders haven't made it easy for them. They have. It's that these guys are so myopically focused on the way they used to make money they don't realize that the new opportunities are already there and have been embraced widely by others.
from the maybe-if-we-made-the-internet-purple dept
Remember back in the day when it seemed like Prince was the musician who really had figured out these new digital-era business models? He had done all these interesting experiments, many of which focused on selling new and unique scarcities, and not worrying so much about the infinite goods in the music. Honestly, it seemed like he was the first real "rock star" to be willing not to just experiment, but to embrace the digital era. But all that came crashing down really, really quickly when a few things became apparent. First, while he loved to experiment with new business models, he didn't seem to actually pay attention to the results. In fact, it became evident that he had little follow through ability at all. He would just throw stuff out there, with promises to his fans, and then not follow through at all.
Second, when it came to Prince and his music, he is all about control. Control is everything to him. And one thing that does not work in this new digital era is being ridiculously anal about controlling how others access or listen to your music. So, he went somewhat ballistic, suing various internet sites for copyright infringement, including YouTube and eBay, which were both odd choices. Since then, he's walled himself off further and further from the internet. Rather than embrace it, he seems to want to deny it exists all together.
And, it appears, he's now taking that to a new extreme.
But, within the interview, Prince notes that his new album will only be released on CD, and not online. In fact, it looks like he's doing the exact same CD release strategy he's done before: release the album with a newspaper. If you subscribe to the newspaper, you get a free copy of the CD. The newspaper pays Prince a huge upfront, so he gets tons of guaranteed cash, and it helps the newspaper keep subscriptions. I actually think that part's pretty creative, even though he's done it before. But you would think that fits well with an internet strategy. Not according to Prince:
He explains that he decided the album will be released in CD format only in the Mirror. There'll be no downloads anywhere in the world because of his ongoing battles against internet abuses.
Unlike most other rock stars, he has banned YouTube and iTunes from using any of his music and has even closed down his own official website.
He says: "The internet's completely over. I don't see why I should give my new music to iTunes or anyone else. They won't pay me an advance for it and then they get angry when they can't get it.
"The internet's like MTV. At one time MTV was hip and suddenly it became outdated. Anyway, all these computers and digital gadgets are no good.
"They just fill your head with numbers and that can't be good for you."
Of course, this won't keep Prince's music offline. The music will be online in no time at all, and it'll be everywhere, except that Prince won't have any control or say in it whatsoever. But, of course, if he thinks it's over and outdated and no good at all, he won't notice that because he won't be online.