Yes, It's Fair Use To Mashup Charlie Brown And The Smiths

from the stand-up-for-your-rights dept

We had mentioned in our post about Universal Music sending bogus DMCA takedowns over Lauren LoPrete's This Charming Charlie tumblr mashup, that LoPrete had been contacted by various copyright and internet free speech lawyers offering to represent her. It appears that among the lawyers reaching out to her were the good folks at Booth Sweet -- whom we've covered many times for their efforts to fight copyright trolls and other bogus threats -- have taken on her case. Lawyer Dan Booth has sent a short and simple counternotice to Tumblr, arguing that the strips that were taken down were covered by fair use.
So much to answer for! Yet our client believes in good faith that these three posts, like all posts on her charming website, do not infringe the copyright for any Smiths lyrics, as they constitute fair use in accordance with 17 U.S.C. § 107. The three contested posts are JPEGs (attached for your reference) that quote from songs by the Smiths, namely "Ask" (a seven-word quote: "Nature is a language, can't you read?"); "This Charming Man" (eight words: "Will nature make a man of me yet?"); and "Frankly, Mr. Shankly" (twelve words: "Sometimes I'd feel more fulfilled making Christmas cards with the mentally ill"). Those brief excerpts are used to transformative effect, as you see. They also have no commercial purpose, and cannot have any negative effect on the market for the original works. As a result, the takedown notices are erroneous. We look forward to the prompt reinstatement of the posts pursuant to 17 U.S.C. § 512 (g)(3).
And now we wait to see if Universal Music decides to sue. Doubtful, but you never know with the big labels and their itchy trigger finger lawyers.


Reader Comments (rss)

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  1. This comment has been flagged by the community. Click here to show it
     
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    Anonymous Coward, Sep 24th, 2013 @ 2:30pm

    And yet ootb will continue to claim that anything that techdirt considers fair use could not possibly be fair use under law

     

    reply to this | link to this | view in thread ]

  2.  
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    Loki, Sep 24th, 2013 @ 2:48pm

    Another example of major label failure.

    I have, in the past, pointed out I'm a huge music lover (with over 2,000 albums and close to 30,000 songs, in my music catalog). Yet,oddly I have never heard anything from The Smiths (at least not that I am aware of). Had I seen these comics, and been intrigued, upon discovering where these "quotes" came from I might have been inclined to find these songs and listen to them (and potentially add them to my collection - assuming that I hadn't been boycotting all RIAA music for about a decade now).

    All this does is highlights yet again why major label music isn't worth bothering with. I hope the Smiths are happy their label cost them another potential customer (and over something that didn't even have anything to directly do with their music).

     

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  3.  
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    Zakida Paul (profile), Sep 24th, 2013 @ 3:02pm

    Re:

    Stop advertising the idiot

     

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  4.  
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    That One Guy (profile), Sep 24th, 2013 @ 3:04pm

    Re:

    To maximalists, the only 'fair use' is 'paid use', the idea that anyone besides them could use lyrics, song/movie clips, bits of a short story or such and not be forced to pay someone(almost always the copyright holder, not the actual creator) is completely beyond them, and in fact downright unthinkable.

     

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  5.  
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    jameshogg (profile), Sep 24th, 2013 @ 3:13pm

    And people don't believe me when I say that deviantArt will come under serious attack one day.

     

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  6.  
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    Anonymous Coward, Sep 24th, 2013 @ 3:39pm

    Funny how they missed the comic that quotes from The Smiths How Soon is Now? Seems like it should have been the most recognizable one http://thischarmingcharlie.tumblr.com/post/58057173618

     

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  7.  
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    Internet Zen Master (profile), Sep 24th, 2013 @ 4:05pm

    Re:

    Honestly, sometimes I'm kinda surprised dA hasn't come under attack already (and this is coming from someone who's relatively active on there).

     

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  8.  
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    Anonymous Coward, Sep 24th, 2013 @ 6:36pm

    Re:

    Funny that Techdirt missed that the lawyer quotes the Smiths in his letter.

    [Manchester] "So much to answer for"

    (suffer the little children)

     

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  9.  
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    Anonymous Coward, Sep 24th, 2013 @ 6:42pm

    Re:

    All the songs referenced in the letter were written while the Smiths were under contract to Rough Trade -an independent.
    One can only wonder as to how Universal has assumed ownership of them in the 25 years since then.

    On another note, stop fooling yourself if you've missed the smiths up till now you'll probably never have heard them.

     

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  10.  
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    mattarse (profile), Sep 24th, 2013 @ 7:14pm

    Re:

    I'm in the same boat, though I've heard of the band I don't know the music. The lyrics are compelling enough in this context to make me curious to hear the music as well, but....not in this case.

     

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  11.  
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    mattarse (profile), Sep 24th, 2013 @ 7:17pm

    From the same band who said "Shoplifters of the world unite and take over"
    Really?

     

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  12.  
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    jupiterkansas (profile), Sep 24th, 2013 @ 7:30pm

    Re:

    Not from the band - from their record label - the one they didn't originally sign a contract with.

    I'd love to hear what Morrissey says about all this.

     

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  13.  
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    mattarse (profile), Sep 24th, 2013 @ 8:11pm

    Good catch - thanks - that point does make a difference. Now I wonder what the band thinks of the labels position here.

     

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  14.  
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    horse with no name, Sep 24th, 2013 @ 9:22pm

    Typical

    The transformative effect here is not significant when compared to the derivative and duplicative nature of work. That is to say that without A or B, the work would be meaningless. It needs, nay requires, the originals to be at all useful, and as such, bases it's sole existence on it.

    Neither is transformed here - just copied and stuck together.

    (PS: Techdirt continues to block, censor, and delay my posts... don't you think that real censorship is more important than a lazy artist getting called out for copying someone else's work?)

     

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  15.  
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    Anonymous Coward, Sep 25th, 2013 @ 2:26am

    6000 ootb's and AJ's.

    Turks will want to pull their teeth without anesthetist.

     

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  16.  
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    Ninja (profile), Sep 25th, 2013 @ 4:00am

    HAH! In the face. Somehow I'm hoping Universal sues to set a huge precedent.

     

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  17.  
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    martyburns (profile), Sep 25th, 2013 @ 4:03am

    Re: Re:

    You should. The Smiths are awesome. My ex didn't like it when 'Girlfriend in a Coma' came on though.

     

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  18.  
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    dennis deems (profile), Sep 25th, 2013 @ 6:12am

    "the takedown notices are erroneous"

    For "erroneous", read "mendacious".

     

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  19.  
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    Anonymous Coward, Sep 25th, 2013 @ 9:16am

    Re:

    The minute people stopped raising hell every time there was a ludicrous overreach on something more questionable than DA I'm sure it would.

     

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  20.  
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    Anonymous, Sep 25th, 2013 @ 10:10am

    Got me looking into The Smiths

    I wasn't aware of this band until I saw these articles and the comics. Now I'm interested in their music. In my case, it was just free advertizing for the band. :)

     

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  21.  
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    Anonymous Coward, Sep 26th, 2013 @ 4:08pm

    Re: Typical

    How is that different than, say, "Big Hairy Woman", which the Supreme Court found to be a transformative use of the "Pretty Woman" music and lyrical content/structure?

     

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  22.  
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    Anonymous Coward, Nov 3rd, 2013 @ 6:45pm

    Re: Typical

    horse with no name just hates it when due process is enforced. Eat a report vote, you dipshit.

     

    reply to this | link to this | view in thread ]


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