Last year, we wrote about the ridiculousness of Prince sending DMCA takedowns over 6 second videos on Vine. Those seemed like a pretty clear fair use case. The very nature of Vine, in that it limits videos to 6 seconds seems tailor made for fair use, even if there is no magical time period that guarantees fair use. Either way, it should be no surprise that when it comes to a major sporting event, the powers that be don't believe in any fair use at all. Similar to the Olympics, nearly every time we write about the World Cup, it involves an aggressive abuse of claimed intellectual property rights to stifle perfectly legitimate communications and content.
The latest, according to the Wall Street Journal, is that ESPN and Univision are rushing around taking down Vine clips of World Cup goals, even to the point that some major media properties have had their Vine accounts killed for being accused of infringement too often:
Since the start of the tournament Vox Media-owned sports site SB Nation, one of the chief purveyors of quick World Cup content, has had two accounts suspended on Vine, according to its managing editor Brian Floyd.
SB Nation received suspension notices from Twitter, Mr. Floyd said, after a complaint from media-protection company Irdeto, which works on behalf of Univision.
“They don’t seem to mind people Vine-ing funny stuff like fans,” explained Clay Wendler, who quickly crafts Vines for SB Nation. But when it comes to goals — breathtaking moments of glory seemingly tailor-made for the six-second looping video format — rights-holders are more stringent, Mr. Wendler said.
Considering that fair use rules are explicitly designed for news reporting, it seems rather clear that these are fair use. It's unclear from the report if SB Nation has appealed the takedown notices or not, but it's rather unfortunate that Twitter just killed those accounts without bothering to recognize that they're clearly being used for fair use reporting on the World Cup.
Similarly, the article points to a recent Slate post which for a little while had a video showing all 136 goals scored in the group stage of the World Cup, spliced together in quick clips, but that video has since been removed after ESPN contacted Slate to claim it was infringement. Once again, this seems like a fairly clear cut case of fair use, using news reporting in a transformative manner which isn't going to impact the market for the original. But, of course, ESPN is owned by Disney, and Disney doesn't exactly have the best of reputations when it comes to understanding fair use in others (even if it's been getting better on that front lately).
It's really too bad that it appears that Slate and Vox/SB Nation appear to have more or less given in to these takedown requests rather than standing up for fair use.
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?