Re: Re: Re: Re: Re: Re: Re: Re: Get in bed with an egomaniac? Pass.
Well, unfortunately, this is a matter of opinion at this point. Your unfounded assertion: "Nope, the ad version is basically using the entire song as a crutch. those two cases where fair use was determined to be true are much, much more transformative than this situation."
I happen to disagree, sorry. And you've given nothing to convince me a court would see otherwise. Changing nearly every single one of the words to an uplifting and encouraging message about girls, as opposed to keeping the original "girls-as-objects" language pretty much seems to me the definition of transformative. Also, the context of the video adds to it--now we're talking about actual girls as opposed to women. The original was flirtation, this is irreverent.
This is no less transformative than any SNL parody (which by the way is a commercial endeavor).
Re: Re: Re: Re: Re: Re: Get in bed with an egomaniac? Pass.
Well first of all, I think your citation supports the argument that this is fair use. The ad version of song is highly transformative, uses language that is the opposite of the original language/intent of the song, and is a much shorter version (longer than 29 sec but far less than the songs length).
Your example of Weird Al is actually a good one because he has been interviewed multiple times and has indicated that while he does not believe he NEEDS permission, he requests it because he believes it is the ethical thing (and prudent thing) to do. He has said apart from the ethical argument, whether he is right or not, he has no interest in battling it in court.
Re: Re: Re: Re: Get in bed with an egomaniac? Pass.
For someone arguing nuance, you seem to have missed quite a bit yourself. Let's start with:
"You seem to claim that the song's use in a commercial is irrelevant". He did not. What he, and others here have claimed, is that use in commerce does not automatically cause it to fail the four factor test--your tone and general argument seems to lean very strongly in this direction. I think your own perspective is clouding your reading of other's arguments.
Your entire rebuttal boils down to: "you want this to be fair use, but you're wrong." And I can find no factual basis or appeal to authority to support your belief that this is not fair use, other than your focus on the commercial aspects, which has been widely argued here is not ENOUGH to cause the factor test to fail.
I'm pretty sure I got it through a scholastic book order when I was in middle school... not sure if I'm remembering correctly. Maybe I'd like it better today. It is still sitting with all of my other Tolkien and Tolkien-related books.
You keep focusing on profits and that is completely blocking your understanding of the issue. Copyright was never intended and does not exist to block profits--it exists as a temporary right to exclude and comes with exceptions such as fair use.
If you read the fair use clause and the fair use tests, you would understand that commercial benefit is not a definitive criteria against fair use.
Especially when the use was also transformative. In this case, while the tune is the same/similar, many words were changed and the context of the ad places the use squarely in the parody camp.
Well, that's not an accurate characterization of what happened, and in any case, your explanation of defamation isn't correct. There are many tests that must be passed for defamation, including: whether the entity allegedly defamed was actually damaged, whether the entity is a public figure, whether the individual had specific knowledge (not first-hand or second-hand), whether or not the statements made are opinion versus fact, etc.
You can be a third-party, with specific knowledge if you observed the results of the transaction. The statements here also almost certainly would be ruled as opinion.
Unfortunately the issue is whether or not the defendants can afford to litigate even if they have a high likelihood of prevailing or recovering some/all costs.
I'm curious how this holds up under basic commerce contract law. If the sale was never completed, I'm not certain how they can uphold any "terms of sale".
Even so, I'm certain this would not survive the other tests of a valid contract in commerce such as the typical consideration of equal understanding and equivalent value... seems like incurring a liability of thousands of dollars simply from the purchase of small-dollar items would not fit that expectation.
Yeah, which makes my point above all the more apt. If you anticipate outcomes that far, far exceed the weight of your mistake, you're going to hide from it (foolishly given the ability for information distribution).
Or worse, we'll start getting outcomes where administrators won't step in to break up fights because they can't win--any actions on their part can be used against them.
I coach soccer in our community and we get advised repeatedly: don't touch the kids, *ever*. If they are injured, call 911 or let a parent help them. And, god forbid, don't give them a high-five or a "good job" slap on the shoulder. This really makes me sick--it should not be this way.
I agree with everything you've said, Mike. What I struggle with, however is how to characterize why we're at this point.
I firmly believe this is a problem of our own cultural making. Teachers/administrators (or government employees, or police officers, or...) that make mistakes are not met with reasonable understanding that “things happen”, but an overwhelming wave of blame that usually results in someone getting fired. Yes, I realize that there are things that cannot fall into the "things happen" category, but we need to figure out how to separate them.
If this principal knew after he was overzealous in his use of force that he could acknowledge he made a mistake, the school would stand behind him and pay for reasonable medical expenses, he would have to learn from his mistake, and everyone could move on, I bet this kind of reaction would not occur. But more likely what happens is, lawsuits happen, the school disavows him and claims it was a rogue employee. This is a situation in which which people will abandon all kinds of ethical behavior to avoid.
If you (I certainly do) long for different behavior from these establishments, we need to ask whether in today’s culture, we are willing to allow mistakes and rehabilitation rather than punishment through firings and the legal system.
Re: Re: Re: Re: I think associating this with "the mind of a cop" is a copout
This can be boiled down to "nature or nurture". I believe there is a compelling argument (e.g., yours) to be made for both influences, which is why I believe its both. So, perhaps I've been unclear--I'm not arguing organizations have no influence on member thinking, just that it isn't the sole cause or even predominant cause.
We know this because there are many, many members of these organizations that do NOT think in this manner. Keep in mind that what we see and read about over and over again suffer from selection bias--we focus on and remember most strongly the members that behave or speak ignorantly, not the members that execute in a manner consistent with our citizen expectations.
Re: Re: I think associating this with "the mind of a cop" is a copout
I'm not sure I'm arguing that it is an exception--just that it isn't ONLY an institutional mindset. If we want to change it, I think we need to understand and hold accountable a) how the organization may (or may not) contribute to ignorant and dangerous thinking, and b) what causes individuals to think/behave in such an ignorant manner despite organizational and social influence.
It is absolutely true that organizations can magnify or discourage certain ways of thinking--but to me that is an after-effect, not the root cause... ergo, I may blame the organization for encouraging or condoning certain thinking/behavior, but I want the individual(s) accountable for their own thinking.
I think associating this with "the mind of a cop" is a copout
I always think it is lazy when we dismiss foolishness/ignorance by attributing it (either directly or indirectly) with the organization (social or political) rather than the individual.
I think we should be talking about how irresponsible it is to be a cop and think this way, not how being a cop makes you think this way. Yes, I know, there is such a thing as "groupthink" and yes, there is a correlation between certain mindsets/personalities and law enforcement. But don't give the individual an out by blaming their organization. We all have agency and we don't lose that once we associate with an organization.