As someone who was drawn to the law and particularly the law of copyright through the file-sharing lawsuits of my formative years, I’ve heard some version of this argument a million times: “Artists should be happy when we illegally share their music, because it provides exposure and they make money through that.” Is there ever any real data to back it up? Not really. But lo! A recent viral video has propelled Kanye back into the Billboard Top 100, for a song that’s 8 years old! Does this change everything? Well, not really, but it does mean the music industry is adapting its enforcement and reaping the benefits.
So, we’ve probably all seen the infamous “I Quit” video. If not, it’s imbedded below. In case you haven’t, a 20 something quit her job for a Taiwanese animation studio by doing an interpretive dance set to Kanye West’s “Gone” and posting it to YouTube. Say what you will about the video or the choice to quit a job (at what seems like a company of nice people) through a YouTube video, BUT she’s gotten more than 15 million views in the last week or so. So that’s something.
Of course, she committed blatant copyright infringement, as many people do when they create videos and use other people’s songs as background music. Specifically, in copyright terms, she reproduced the song, she distributed it, she publicly performed it and she created a derivative work by incorporating it into a video. Under the Copyright Act, the right to do those things with a work is reserved exclusively for the work’s author (or whoever they assign those rights to). In other words, you can’t do any of that without a license.
But fair use! Fair use is a wonderful thing, but this ain’t it (probably). For those unfamiliar, fair use is a concept designed to promote the free use of copyrighted material in ways that we consider a public good, and in ways that keep the Copyright Act in line with the first amendment. Fair use lets you use copyrighted work for things like news reporting or satire.
The reason I say probably? There’s no bright-line test for fair use. No box you can tick and automatically get fair use protection. Fair use is always going to be subject to a balancing test taking into account four factors set forth by statute (and a bunch of other ones discussed in case law). That’s the big drawback of fair use protection, if you really want to assert it you have to be willing to fight it in court, which most people aren’t willing to do.
Here, I don’t think the fair use question is even close. What she did was take a work wholesale and incorporate it into her video. Many people would cite the non-commercial nature of her use, but that’s not dispositive where other factors weigh so heavily in favor of infringement (also, in so much as she used the video to advertise herself as available to other employers and has presumably gained some commercial benefit from the fame, I think you can argue that it was in fact commercial use). Many people would also probably argue some form of satire, since satire has been recognized as a potential fair use (I love it when judges discuss 2 Live Crew). What’s important to remember though is that for it to be a valid fair use as satire, the use of copyrighted material must act as some kind of commentary on the copyrighted material itself. For example, in the 2 Live Crew case, the use of copyrighted material from Roy Orbison’s “Pretty Woman” was ok because in incorporating that material into their song “Hairy Woman,” 2 Live Crew was at least in part offering commentary on the song “Pretty Woman” itself, and the culture that it represented. Here, the song is just used as a catchy soundtrack about leaving. It’s used because of the value of it’s copyrighted material, not to offer a commentary on that material.
So while the video here was infringing, Kanye West, or rather his publisher, allowed it to stay up rather than filing a DMCA take-down notice with YouTube. As a result, the video gained 15 million (no doubt more by the time you read this) hits, and has propelled the song back up the charts after 8 years. The whole situation is, frankly, fascinating. While I don’t think it finally provides the example that proponents of abolishing copyright have been looking for, I do think it serves as an example of media companies getting smarter about copyright enforcement.
As a college student and then law student watching the file-sharing litigation unfold, I was dismayed because I thought that the law was ridiculous and had to change, as it was in no way capable of being stretched to fit technologies that it wasn’t designed to apply to when it was written in 1976. I still think that the law has to be changed in important ways (reduced statutory damages for non-commercial infringement among them), but in retrospect my real take-away from the file-sharing litigation is how silly it was as a strategy by the music industry. Rather than adapt to a new technology and a new way fans were experiencing music, the industry fought change and made criminals out of its consumers. Not good. iTunes was a sea-change, and the industry has done a lot of good in the time since, but there’s plenty more work to do.
Which is why I’m encouraged by what I see as smart enforcement here. Rather than making a criminal out of a customer, the publisher used the technology, embraced the infringement, and made a boat load of money. Kudos, Kanye.