Rerun: Copyright and Fair Use

In this episode from 2021, we look at the thorny issues of copyright and how fair use isn't some proactive safety play to avoid those pesky copyright strikes.

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Episode Transcript

Speaker 1 (00:04):
Welcome to tech Stuff, a production from iHeartRadio. Hey there,
and welcome to tech Stuff. I'm your host, Jonathan Strickland.
I'm an executive producer with iHeartRadio and How the Tech
are You. This episode, originally published May seventeenth, twenty twenty one,

(00:24):
is called Copyright and Fair Use. I feel it's always
important to revisit this topic because it's a it's one
that's a little complicated, and I think a lot of
people have misconceptions about what fair use is and how
it works. So enjoy and I'll chat with you a
little bit at the very end. It has been a

(00:46):
while since I've done an episode about the concepts of
copyright and fair use, and after I keep seeing the
phrase no copyright infringement intended over and over on places
like you Tube and Instagram, I figure it's a good
time to tackle this again because people continue to pretend

(01:07):
like copyright infringement only applies under very specific circumstances and
that with just a little bit of verbiage you can
get around it, when really the opposite is true. And
since the Internet and technology allows for more opportunities for
copyright infringement, and because various governments and around the world

(01:29):
have passed legislation to, you know, specifically tackle copyright infringement,
and companies have lobbied endlessly for more restrictive copyright rules.
I think it fits the scope of tech stuff, particularly
since a lot of these laws were formed in reaction
to changes in technology. So first, let's kind of define

(01:53):
what copyright is now. Essentially, copyright guarantees the creator of
a work or an entity that has been designated by
the creator of the work, the right to profit off
of that work, the right to make copies of that
work and then distribute or sell them, or you know,

(02:16):
you just you own that intellectual property. No one else
can come and make copies of it without your permission.
The works in this case range from the written word
to music, to paintings to sculpture to digital files. I mean,
copyright now applies to lots of stuff. Clearly, it didn't
apply to all of that in the beginning, but something

(02:38):
that has evaulved over time. It does not include inventions.
Those are covered under patent law. And then you also
have things like trademarks, which make things more complicated. I
might talk about trademarks and copyright in a future episode.
To kind of talk about how those complicate things because
companies have tried to use trade in order to extend

(03:02):
copyright protection. But trademark's last in perpetuity. Copyright only lasts
a certain amount of time, at least in theory. We'll
get to all that. So, along with the right to
profit from intellectual property comes with it protections against others
who are taking a work and profiting off of it

(03:23):
without permission. Now you can see the value of this
concept right away, I imagine. So let's say you are
a musician and you write a song. It was your work.
You created the whole piece, You wrote the music, and
you wrote the lyrics, and you plan to earn money
through this song. Maybe you're going to record it to

(03:45):
some form of media and then sell copies of the song.
So you file the copyright for the song, which gives
you the exclusive rights to make copies of it in
whatever format you like, whether it's digital files or physical
media or even like sheet music. You can charge whatever
you like for your work, though obviously if you go

(04:07):
bonkers and you ask for ridiculously high price, you aren't
likely to get a lot of takers. You also have
the protection should someone else start making copies of your
song without your permission. Maybe they are performing it themselves,
in which case they should secure a license first, or
maybe they're taking your original recording and just duplicating it.

(04:30):
So let's say that you created an MP three file
and they just copy the MP three file endlessly and
start either giving it away or selling it to people.
You could sue that person, and in court you could
prove that you hold the copyright to that piece of music,
and assuming the court agrees that the copyright is legitimate,

(04:52):
you could then seek damages against the person or entity
that made the unauthorized copies of your work. Music is
actually really a special case because you can have multiple
copyrights on the work. You could have one for the lyrics,
then you could have another for the musical composition itself,
and that would mean that someone who wanted to play

(05:15):
your music but change the lyrics would still potentially be
liable for copyright violations. But we're going to get back
to that a little bit later in this episode, but
it is something to keep in mind. However, Then there
are such things as mechanical licenses. This sets out the
rules for stuff like playing recorded music in particular places.

(05:36):
So if you've ever been to a restaurant or a
theater and you've heard music being played over the sound system,
chances are that that place of business has paid out
a license fee in order to be able to do that.
Intellectual property rights get pretty complicated. It also depends upon

(05:58):
the size of the venue. I might have to do
a future episode to kind of talk about all the exceptions,
because as I said, it does get complicated, and in
some cases, if it's a very small venue, they can
sometimes be exempt from having to pay the same sort
of license fees that larger venues have to pay. And
part of the argument there is that the number of

(06:18):
people who would actually experience the music is much smaller
because the venue is smaller. Anyway, in the old days,
as in before the printing press, copyright wasn't really that
big of a thing, Like, there wasn't a big concern
for it. There were predecessors for formal copyright, but truthfully,

(06:38):
there wasn't much occasion to use them because the act
of copying a work involved actually making a copy out
by hand, handwriting the copy of a written work. This
was a painstaking process and not something that could be
done on any sort of scale. And so copyright wasn't
as huge a concern just because infringement it's was not

(07:00):
something that was easy to do. Add to that the
fact that much of the world's population was illiterate and
there just wasn't a foundation for copyright infringement to really
take hold. Then a smarty pants named Johann Gutenberg had
to go and invent the movable type printing press, at
least the European version. I should stress that Europe because
other parts of the world were actually further advanced with

(07:22):
printing technologies than Europe was. But this is the one
that Western cultures tend to talk about because we get
a little myopic. But I'll set aside the commentary. So
with the printing press, it became possible to set the
type on the press and then print out sheets one
after the other in relatively quick succession. Now, it still

(07:44):
took time to set the press between pages because you
had to change all the type out right, You had
to remove all the type, set the type again, and
then print the next sheet. So you would typically use
the press to print a bunch of the same sheet
in a row before you would reset the type and
move on to the next sheet. However, you could also

(08:05):
use a single large sheet of paper to set out
multiple pages of text, and so you could divide up
the quadrants of a printing press and change the type
up so that you are actually creating multiple pages per press.
And then you fold the paper in such a way
that that makes all sense, like if you fold it

(08:27):
once along a vertical line, so you fold it in
half vertically then or along the vertical axis, I should say,
Then you end up with a folio that was a
single large sheet of paper that would have one page
printed on the left side, one page printed on the
right side. You have a vertical fold in the middle,

(08:49):
and then you can just keep printing those over and
over again, and then you bind a bunch of those
together and you've got a book. Or you could do
a double fold, and you could have a quarto, which
would also involve you having to make a cut along
the horizontal line. But then you've got four pages per sheet,
so you could do that, and that means that with

(09:10):
one press you're effectively printing four pages. Then you let
it dry, you flip it over, and you can print
another four pages. Very useful. So this was these were
different ways that you could end up creating books fairly quickly.
The process of publishing became much faster than with people
doing it behind, but there wasn't yet a formalized protection

(09:33):
in place for the creator of the works, and at
this point, the typical approach was for an author to
receive a flat fee for their work, which would then
go to a book printer to produce, so the printer
would take ownership of that work from that point forward.
Then it was just a matter of time before other

(09:53):
printers would get hold of the book and start making
their own copies, at least for books that proved to
be popular. For all, there really wasn't a whole lot
of profit in this approach. William Shakespeare, who you know
you could argue, was one of the greatest English writers,
mostly known for his plays but also his poetry. He

(10:13):
never sought out the printing of his plays. Others would
give it a shot. Either they would try to copy
down plays as they were being performed and then go
and print what they had transcribed, or they would try
to get hold of the sides that actors were using
in their roles, or a combination of the two. It
was really only after Shakespeare's death that his friends got

(10:35):
together and did their best to gather his plays and
publish them. Now, based on what I know about Shakespeare,
I suspect the reason that he did not seek out
publication of his works was that it really wasn't where
the money would be for him. He would get a
paid the flat fee for every play he wrote, but
more importantly, he was a part owner of the theater itself.

(10:58):
Like the Globe the Rose Theater, he was part of
the company that owned the theater, so that meant he
would actually take a share of the box office. So,
in other words, his main goal was to attract crowds
to the theater. That's where the money was. But you
can bet that if there had been serious money in
publication back in those days, Shakespeare would have been all

(11:21):
over it because a quick glance at some of the
lawsuits he was involved with during his lifetime indicates he
had a certain appreciation for the accumulation of wealth. So Shakespeare,
a great artist also a business guy, and had publishing
been a bigger business for the author, he certainly would
have gone that route. I'm sure of it. Now. The

(11:41):
printing press was a truly transformational piece of technology. It
became easier to produce many copies of a work book.
Printing businesses, which would evolve into true publishing houses, began
to pop up all over Europe, and the powers that be,
that is, the Church and the various governments of Europe,
viewed book printers as both an asset and a potential threat.

(12:05):
Through the printers, these organizations could spread information quickly. The
Bible was a very early candidate for printing, as the
Gutenberg Bible proves and governments could use printing presses to
spread information about laws and declarations and that kind of thing.
But printing presses also meant it was easier to print
stuff that undermined authority. People who had a bone to

(12:28):
pick with the folks who were in charge could potentially
spread their ideas and maybe find sympathetic souls who shared
those same beliefs. So the printing press could enable existential
threats to the power structure. And this is where we
get a predecessor to copyright. Now, this predecessor wasn't so

(12:49):
much about making sure the author of a book was
fairly compensated. Instead, it was more about keeping printing houses
under control. The basic idea was that any business that
wished to print materials had to first secure an official
license from the government of that region. These licenses typically

(13:09):
meant that a specific printer would be responsible for the
printing of particular works to the exclusion of all other printers.
So you might say that this one printer can print
this one book, and no other printer in the region
is allowed to do that, so they have a monopoly
on that specific title. In fact, they called the monopolies.

(13:31):
These agreements would last a set number of years, which
wasn't too different from the concept of modern copyrights. If
any other printer was found to produce a work that
some other printer had exclusive rights to, that matter could
go to court, But this was all about the printing houses,
not authors. England passed its first actual copyright law in

(13:54):
seventeen ten. This law changed things quite a bit. A
publisher would have a fourteen year period of exclusive rights
to publish any new book. Existing books that the printing
house was already printing would enjoy protection for twenty one years.
After that, the author of the work could choose to
renew the copyright if the author was still alive. Otherwise

(14:16):
the work would enter into the public domain, meaning anyone
would be legally allowed to make a copy of that
work or use it in any way they liked. There
were no longer any protections on that piece of work,
and it was available for any public use. The United
States wouldn't get its first true copyright law until nearly

(14:36):
a century later. But let's be fair, there was no
such thing as the United States in seventeen ten, so
I'm going to cut the young nation some slack here.
The copyright law of the US followed closely in the
footsteps of the Copyright Act of Britain, which was also
known as the Statute of Anne as in Queen Anne.
So the way that the US law worked was that

(14:59):
an author would read just through their work with the
US District Court of their particular region, and they would
in return receive an exclusive copyright for fourteen years, with
the option to renew for a second fourteen year period,
and after those twenty eight years, assuming that you actually
renewed your copyright, the work would then enter into the
public domain with the Statute of Ann and the Copyright

(15:21):
Act of seventeen ninety in the US or at the
point where authors would get a little more protection and
a chance to benefit more from their own work. It
was no longer the case of a one time flat fee.
In every instance now I say authors, but often we're
really still talking about publishers. Here. The publisher retains the
copyright because the copyright allows the publisher to, you know,

(15:43):
publish the works. Otherwise, the author would have to grant
permission for each printing. You'd have to have a license
for it. It all gets clunky, right. If the author
has exclusive copyright to their work, they have to grant
permission to whichever entity is reading copies of that work.
You often see this reflected today in ways that are

(16:04):
kind of confusing. When you agree to certain platforms, there's
language there that seems to suggest that anything you post
on that platform is that platform's property. But usually the
reasoning for the language is to make sure that the
platform has the necessary permission to display whatever it is

(16:25):
you're posting, because otherwise, every single time you posted, you
would have to have some sort of licensing agreement or
something that would give permission to the platform to actually
display the thing you wrote. It gets pretty complicated now.
The same would be true for most music produced in
the modern era. The copyright isn't necessarily held by the

(16:47):
artist but by a music label. And it's kind of
like how Thomas Edison made sure that his name was
on every patent produced out of his business. He might
not have had a direct hand in the creation of reinvention.
In fact, we know that he didn't have a direct
hand in a lot of them, but he sure as
heck made sure that his signature was on the patent

(17:08):
to every single one, so that he had a right
to each of them anyway. One of the consequences of
all of this is that, to this day, getting the
permission of an author or artist in order to use
their work typically isn't enough. That's because in many cases
that individual creator doesn't actually hold the copyright to the work.

(17:31):
It's more likely that some corporate entity will hold the
copyright on behalf of that creator. So you really have
to get the permission of whatever entity holds the copyright
for any specific intellectual property. In some cases it might
be an individual creator, in other cases it might be
a big company. So let's say if you met an

(17:54):
artist for Disney in a cafe and this artist told you, oh,
it's totally cool if you use their drawing of a
popular Disney character for something you're doing that's probably not
good enough because that artist wouldn't even hold the copyright
for that work. Disney would, and copyright laws would evolve

(18:16):
quite a lot over the following centuries. They expanded to
include more types of works, as well as to allow
for things like licenses, and without these considerations, it might
be illegal to you know, play back an album without
first getting permission of the music label, which is clearly absurd.
You wouldn't have it where you bought an album, you

(18:37):
went home, and every time you were to play the album,
you first had to get permission from the music label
to do that. That just doesn't make sense. But that's
the sort of stuff that actually had to be codified
into law. It's you know, it's not enough to just
everyone agree like, oh well, that's absurd. It actually had
to be written down somewhere and ratified. One of the

(19:00):
biggest changes to copyright has been how long that copyright
protection lasts. This also ties into how many capitalist societies
treat corporations, which is ridiculously in my mind. So here
in the United States, in particular, corporations are treated legally
like a person. But if you think about it, that's

(19:21):
kind of bonkers. More than kind of bonkers. I should say,
people get old. People pass away corporations. Assuming that they
are run well and they provide some sort of goods
or services that people want or need, they can exist indefinitely.
And a corporation that relies heavily on intellectual property is

(19:42):
quite loath to give up that meal ticket. And so
corporations over the years have lobbied hard to extend copyright
in order to prevent the IP that they own from
falling into the public domain. And then they can no
longer exclusively exploit that IP. They could still exploit it,
they could still sell stuff with it, just it doesn't

(20:05):
stop anyone else from doing the same thing. Perhaps the
most high profile of all these companies was one that
seemed fixated on a particular mouse that I've already mentioned.
I'll explain more after this quick break. Before the break,

(20:27):
I teased that corporations played a huge part in lobbying
Congress to extend the protections of copyright. And one of
those corporations is the Walt Disney Company and the cultural
phenomenon that is Mickey Mouse. The cartoon Steamboat Willie, which
was the first Mickey Mouse cartoon, was released in nineteen
twenty eight. Now, at that time, US copyright law had

(20:51):
a twenty eight year protection limit, which could then be
renewed for a second twenty eight year term, which would
provide a total of fis fifty six years of copyright
exclusivity to the owner of an IP, But then the
IP would enter the public domain. That means that if
copyright law had remained unchanged since Steamboat Willie, Steamboat Willy

(21:14):
would have entered the public domain back in nineteen eighty four.
Spoiler alert, as of the recording of this podcast, Steamboat
Willie is not in the public domain yet, so things
did not remain the same. By the nineteen seventies, the
Disney Company was lobbying hard to change copyright laws, and
I want to be clear they weren't the only ones,

(21:37):
but you frequently hear Disney specifically in regard to lobbying
for copyright law extensions, and it worked. Congress changed the
copyright protection so that copyrights that were held by individual
authors protection would last the lifetime of that author plus
another fifty years. So now we're well beyond gearuaranteeing the

(22:00):
right of a person to profit off of their work.
Right now, you're saying you're guaranteeing that multiple generations of
an author's family can continue to benefit from the work
of the author. The author will be dead and fifty
years will pass, and until those fifty years are up,
the estate will continue to benefit monetarily from that author's work,

(22:24):
assuming that you know, people are still buying it. Obviously,
if it falls out of favor and no one's purchasing anything,
then those rights, while they're important, don't actually leverage into
any kind of monetary gain. But this is where I
start feeling a little weird about all this, because I
think it's one thing to want to provide for your family,
right you want to earn money and help contribute to

(22:48):
your family or household's well being. But it's another to
create generational wealth that removes the need for future generations
to you know, make any sort of meaningful contribution themselves.
There are lots of cases where the children of authors
who were incredibly successful have themselves gone on to do

(23:10):
amazing things, which is great, But there are also cases
of people who just kind of, you know, never bothered
to do anything because they didn't really have a need to.
They were all of their needs were already met because
they were earning income on something that their parents or
grandparents or great grandparents had done, and there never was

(23:33):
any need for them to do anything. Not super helpful
for the general society. Not very healthy in my mind anyway.
For corporations that owned IP it was a different story, right,
because corporations don't die, so you can't say the life
of a corporation plus fifty years. So in this case,

(23:54):
the Copyright Protection extended the term for works that had
been published before nineteen seven seventy eight to a total
term of seventy five years of protection. The Copyright Extension
pushed that protection of Steamboat Willy to two thousand and
three because of that, because it was published in nineteen
twenty eight, seventy five years later would be up to
two thousand and three. However, in nineteen ninety eight, Congress

(24:18):
passed the Copyright Term Extension Act, also known as the
Sonny Bono Copyright Term Extension Act, after the late congressman
and musician Sonny Bono Bono had passed away in an
accident while Congress was hashing out this extension bill, so
he was posthumously honored with the title of the act.
This Act extended the copyright protection for any work published

(24:40):
in nineteen twenty three or later, and the extension meant
that the copyright protection now went from the life of
the author plus fifty years to the life of the
author plus seventy years for those works that were created
by an individual artist, and it meant for works of
corporate authorship, you know, works that like Steamboat Willy from Disney,

(25:03):
they went from having seventy five years of protection to
either ninety five years after publication or one hundred and
twenty years from the date of creation, whichever ended earlier.
So you know, corporations might create something but not yet
publish it, so in some cases you would actually have
a shorter period between time of creation and one hundred

(25:25):
and twenty years than time of publication. In ninety five
years anyway, any published work before nineteen seventy eight would
get an additional twenty years of copyright protection, so it
went from seventy five years to ninety five years, And
those extra twenty years meant that Steamboat Willy will now
enter public domain essentially at the beginning of twenty twenty four,

(25:45):
unless between now and then there's yet another change to
copyright law, which seems highly unlikely because there is a
large opposition to that. Since the Copyright Act I've mentioned
so far retroactively protected any word published after nineteen twenty three,
it meant that we finally saw some published works go
into the public domain beginning in twenty nineteen. So on

(26:09):
January first, twenty nineteen, any copyrighted works that were published
in nineteen twenty three, with a few exceptions that have
to do with music because music is complicated, otherwise, they
entered the public domain at that point. This was the
first time in twenty one years that a large collection
of works fell out of copyright protection into the public domain,

(26:29):
only because of the timing of changes to copyright law
in the United States. So works from nineteen twenty two
had entered the public domain back in nineteen ninety eight,
but then you had the change to copyright law, and
so any works from nineteen twenty three enjoyed twenty more
years of protection because of that recent extension, and thus
they only entered the public domain in twenty nineteen. That's

(26:51):
the difference that a single year can make. This year,
in twenty twenty one, we saw works like F. Scott
Fitzgerald's The Great Gatsby go into the public domain. You
can now make as many copies of The Great Gatsby
as you like. You can hand them out for free.
You could charge for them if you want to. It's
public domain. Doctor Doolittle's Zoo also went into public domain

(27:13):
this year. Agatha Christie's The Secret of Chimney's made its
exit from copyright protection. The nineteen twenty five silent film
version of Ben her not the Charlton Heston version, but
the nineteen twenty five silent film version is in public domain,
as is Lawn Cheney's The Phantom of the Opera. Also,
the silent film version of Wizard of Oz again not

(27:35):
the big musical version, you know, not the follow the
Yellow Brick Road version, but the silent film version of
Wizard of Oz is also into public domain this year.
Now that means that if you want to make copies
of lawn Cheney's Fantom of the Opera and you want
to distribute those widely. If you want to post the
entire movie on YouTube, you can. You can do it

(27:56):
for free. You could also, you know, sell DVDs of
it if you wanted to. You could press DVDs with
Lawn Cheney's Venom of the Opera, and you could sell them.
I don't know if anyone would buy them, but you
could do it. You can do it here, you can
do it there, You can do it everywhere in the US. Anyway,

(28:17):
it is no longer in copyright now, backtracking just a
little bit, the printing press had made copyright protection more
or less a necessity to prevent publishers from pouncing on
each other and flooding the market with copies of various books.
But for a really long time, copyright was just something
that big companies were mostly concerned with. It was a

(28:38):
non factor for the average person. I mean, it affected us,
but we didn't come into any sort of conflict with
copyright protection because most of us just didn't have access
to equipment that we would need to replicate an original work.
If back in the mid nineteen twenties you managed to
get your grubby hands on a copy of The Great Gatsby,

(28:59):
you probably didn't have the ability to copy that work
and then sell it to people yourself, you know, like
undercutting big bookstores or whatever. Publishing houses were protecting themselves,
but they were doing so mostly from other publishing houses.
The average person was not a threat, So the nature
of copyright law was all about corporate entities protecting themselves

(29:22):
from each other. This, by the way, is what kind
of becomes an issue in the modern day, where you've
got the effect of like a nuclear arsenal, you know,
corporations against each other that could then be aimed against
the individual because the nature of copying has changed, so

(29:42):
there's a disproportionate hardship on the individual because of that.
So over time, various inventions meant more people would have
the ability to create copies of stuff, and these technological
advancements always came hand in hand with media company freaking
the heck out about it, which is not an exaggeration.

(30:04):
The invention of technologies like cassette tapes or VHS tapes,
burnable compact discs, and of course digital media all sent
media companies into a tizzy. Each invention prompted the companies
to object strenuously and to proclaim that should these technologies
fall into the hands of the common, unwashed masses like myself,

(30:29):
that the era of stuff like film or television or
popular music would all come to an end and the
entire industry would crash down on itself and we would
then be back to banging rocks together for entertainment. News Alert.
None of that happened, but in the process we saw
lots of other laws passed that expanded copyright protection by

(30:52):
creating a pretty extensive framework for prosecution should an IP
holder discover that someone is copied or distributed stuff that
they hold the rights to without proper authorization. I will
cover more of those in the next episode. Now, one
of the reasons the public domain is important is that

(31:13):
works can have a great deal of relevance and usefulness
many years after they were published. Think of all the
classics that are out there that have stood the test
of time. But if copyright lasted forever, these works would
be under a tight restriction in perpetuity. Public domain means
that eventually these works will become widely accessible. It's balancing

(31:37):
out the benefits that go to the IP holder against
the benefits of society as a whole. All right, But
what about fair use? Okay? So, fair use is a
concept that allows someone to use part of a copyrighted
work that without permission in one of several ways, and

(32:00):
it's fairly narrow in its scope. But also kind of
fuzzy at the edges, so it's narrow in scope, but
there are no hard yes or no answers to this stuff.
In general, fair use allows someone to make limited use
of a portion of a copyrighted work for the purposes
of news reporting, research, teaching, or criticism and commentary. Parody

(32:23):
falls into that last category as well, but we're going
to come back to that. Because it's a more specific
approach than just adding funny words to existing music. Fair
use means that you don't have to secure permission from
the copyright holder if you're using a small portion of
that original work in one of these ways. So, for example,

(32:44):
if I were criticizing a film, I could use small
clips of that film during my critique. Let's say I'm
uploading a video to YouTube where I am critiquing a movie.
I can include tiny clips of that film in order
to illustrate specific points of my criticis, and I wouldn't
have to get permission first. The clips I used would

(33:05):
need to relate directly to that criticism. However, I might
want to talk about lighting composition, and I'll use clips
from Robert Egger's film The Lighthouse, because that film had
phenomenal lighting in it. So I'd use those examples to
talk about specific lighting techniques and how they shape storytelling
and what significance they play in the unfolding of the

(33:29):
story of the lighthouse. But if I were to get
more lucy goosey, my protection of fair use would not
be as solid. Similarly, if I were to use very
short clips of the film in my critique, my argument
of fair use is better supported than if I were to, say,
include thirty minutes of the movie surrounded by like five

(33:50):
minutes of criticism. Now, does that mean there's a specific
safe amount of copyrighted material that you can use without
fear of retribution. No. There is a common misconception that
if you use less than say, fifteen seconds of audio
from a source or six seconds or whatever, that that's
small enough to be fair use and no one's gonna

(34:12):
come after you. That is just not true. Or rather,
it's not a guarantee. Specifically, it's not a guarantee if
you're not using that as some form of commentary or
criticism on the work itself, if you're using it as
like the button to a moment, you know, like a
SoundBite or whatever, there's very little support for a fair

(34:34):
use argument there. So if I just filled up this
podcast with soundbites from various films and music, TV shows
and radio spots and stuff like that, without paying a
license for all of those things, I would be flying
pretty darn close to the sun. Because unless I'm using
those snippets in very specific ways, such as to criticize

(34:57):
those original works that the snippet it's belonged to, or
to report on the news of those snippets, well, I
would be infringing on copyright. That doesn't necessarily mean anyone
is going to come after me. I mean chances are
for really small stuff, I'd probably be okay unless my
podcast got wildly successful, in which case I could represent

(35:20):
a pretty lucrative target. If the copyright holders looked at
my podcast and said, well, that show is making x
million dollars a year, and a lot of that popularity
we could argue comes from its use of our intellectual property.
We can get a piece of that pie like that.
That would be the thought process, and it could actually

(35:40):
work in court. So it doesn't mean I'm bulletproof if
I'm just using tiny little clips. It's not until it
goes to court that I really know if I'm going
to have to pay or not. So fair use isn't
a concept that has hard borders to it. It's all
interpretive stuff. And here's the key to all of it.

(36:01):
Fair use is something that gets determined in court. So,
in other words, you can't really use fair use proactively
as a defense. It's a defense that you make if
a copyright holder pursues a claim against you for copyright infringement.
So let's say that I did that critique of The
Lighthouse and the film company A twenty four, which released

(36:23):
and distributed the film here in the United States. Let's
say that company came after me for copyright infringement, and
I would have to defend my use of those clips
in court, and I would have to cite fair use
in that process. Throughout the court proceedings, I would likely
have to prove that the way I use those clips

(36:43):
was in fact to critique the film, and that the
excerpts I used were appropriate and constituted a relatively small
percentage of the overall critique and a very small percentage
of the original film. Courts decide on a case by
case basis if a particular instance is fair use or not.
There isn't a blanket fair use defense. You gotta go

(37:06):
in front of the courts to do it. And this
is what I meant by that nuclear arsenal. When it
comes to companies versus companies, typically you have lawyers on
both sides who are just perpetually employed by these companies
that call each other up and they work things out
and you might have a licensing agreement or you might
agree to a settlement, but it rarely goes to court.

(37:29):
When it comes to individuals, most of us don't have
access to that kind of legal defense. So for us,
it's like a massive, well funded company with high paid
lawyers versus the little guy, and it means that the
little guy has to shell out the big bucks in
order to defend themselves against the corporations. Even if the

(37:52):
little guy is totally in the right. If the use
is inarguably fair use, you don't get to that decision magically.
You have to go to court for it, and court
is expensive. We're going to pause the conversation right here,
take a quick break, and we'll be right back now.

(38:19):
The courts tend to look at four factors when deciding
if any given instance constitutes fair use one is the
purpose and character of the use of the original material,
including whether the use is for a commercial nature or
is nonprofit and educational. So, in other words, if I'm
making videos where I critique films and I include clips

(38:42):
of those films in the videos, and I'm monetizing those
critique videos, that can be a little bit of a
strike against me because I'm using someone else's work in
something on my own in order to make money. That's
not a failure rail of the gate, but it does
make my argument harder. So it doesn't mean that a

(39:02):
court is going to decide I'm not engaging in fair use.
But in general, if the use is nonprofit and it's educational,
it fits more easily into the fair use category, and
courts tend to be a bit more forgiving. Then there's
the nature of the copyrighted work itself. In general, it
is easier to make a fair use argument if the

(39:23):
thing you're sampling from is a non fictional work. Works
that are about creative expression, like novels or movies, have
a higher burden of proof than works that are nonfiction. So,
for example, in this podcast, I will sometimes quote specific
sources those are nonfiction sources and I quote from them

(39:44):
to establish facts. That's easier to defend as fair use
than if I were to include, say a minute long
audio clip from a science fiction television show that's a
work of fiction. It's a work of creative endeavors. That
is harder to to justify as fair use unless I'm
specifically critiquing the show itself. Then comes the amount and

(40:07):
substantiality of the portion of the copyrighted work that I
used in my critique of The Lighthouse. If I'm using
very short clips that just show up in my video
for like five or ten seconds each as I talk
about lighting techniques, that's easier to defend as fair use.
I'm not showing a significant part of the movie. People
aren't going to feel like they saw the entire film

(40:28):
by watching my critique. They're just getting a flavor of
what I'm talking about and getting an understanding of what
I mean when I'm critiquing the use of lighting. If I'm, however,
using very long stretches of the original film, particularly stretches
that don't include changes in lighting, well that's going to
be a lot harder to defend in court. And then

(40:51):
there's the effect of the use upon the potential market
for the copyrighted work. If my derivative work could possibly
hurt the same of the original by displacing the sales
of that original, that's a problem. And this one is
a tricky one, right because what if I'm not critiquing
the technique of a film, but the quality of a film.

(41:14):
And what if I present a video where I do
an extensive tear down of a movie and I explain
how I think it is not a good film, or
I'm arguing that people shouldn't go see that movie, that
it would be a waste of their time and money. Well,
if folks value my judgment, I could well be said
to have a negative impact on the sales of the

(41:35):
original work. However, generally that would still be protected. However,
if I were to use the original in some way
that would make people want to buy my derivative work
or consume it for free or whatever instead of the original,
well that's harder to defend. So let's say, like in
my critique of The Lighthouse, I included the entire film

(41:56):
of the Lighthouse in my critique. That would be very
hard to defend, not just because I'm using a substantial
amount of the original work. But also the company could argue, hey,
why would people pay to see our movie if they
can see it for free. Just wrapped up in the
context of this supposed criticism video, the copyright holder it

(42:17):
can make a valid claim that my derivative work would
not exist without the copyright original piece, and yet it
was essentially siphoning sales away from that original piece that
is not protected under fair use. Okay, we've got that
all established. We're going to make a couple more points
before we wrap this up. So when it comes to

(42:40):
stuff like music, I mentioned that you can copyright the
musical composition, and you can copyright the lyrics separately. One
other thing you can do, however, is copyright individual performances
of a piece of music. So, for example, let's say
that you're making a video and you want to make
use of a recording of Beethoven's Ode to Joy. Now,

(43:02):
Ode to Joy is part of Beethoven's Symphony number nine.
Beethoven composed that in the eighteen twenties, and it has
long since passed into the public domain. You can use
Ode to Joy in anything you like for free. There's
no one to pay royalties to as far as that's
concerned or licensing fees to However, that just covers the

(43:25):
music itself. A performance of ode to Joy will have
its own copyright which dates to the recording of that piece.
So even though the music is in public domain, a
performance likely is not unless you're using a performance of
ode to Joy that dates from before the nineteen twenties.

(43:45):
So you could perform ode to Joy yourself in your project,
you'd be good to go. The music is in the
public domain, the performance is yours, You're fine. But if
you wanted to, say, use a recording of the London
Philharmonic's performance that they did sometime in the nineteen nineties
of ode Joy, well then you would have to deal

(44:06):
with some licensing arrangements to get the proper permissions to
make use of that music. Because while the music's in
the public domain, the performance is not. Then there are
other things to consider as well. So remember when I
said parody is kind of a special case with fair use,
This one gets even more complicated than other forms. So

(44:27):
technically parody falls under fair use if it falls under
the criticism and comment consideration for fair use. A typical
definition of parody is quote and imitation of the style
of a particular writer, artist, or genre with deliberate exaggeration
for comic effect. End quote. But that doesn't automatically mean

(44:49):
that it's fair use. For it to be fair use,
that specific parody really needs to comment upon or criticize
the original work that it is parody. For that reason,
some but not all, of weird Al Yankovic's parody songs
would easily fall under fair use, and others would be questionable. Now.

(45:10):
I mentioned weird Al because he's the most famous parody
artist I can think of, that probably the one that
most people have heard of, and some of his parodies
do tend to target the original work. So Smells Like
Nirvana is a parody of the Nirvana song Smells Like
Teen Spirit, and it's all about critiquing the original song.
There are lyrics of what is this song all about?

(45:33):
Can't figure any lyrics out that comments on the lyrics
of the original work. Other verses pop fon at Kurt
Cobain's slurring and mumbling of words, making it hard to
understand what is actually being sung. So that song parody
would probably hold up under fair use. But then take
a song like Foil. Foil is a parody of Lord's

(45:55):
song Royals, So it's using the music and lyrical structure
of Royals. You know, they change the actual lyrics, but
it's the same rhyme, scheme and scan shin of Royals.
But the song Foil isn't a commentary on Royals. Instead,
it's a comedic song about aluminum foil. And I'm pretty
sure you couldn't make an argument that it's somehow commenting

(46:18):
on the original work, which means that would be harder
to defend as fair use. It's not a bad song,
by the way. This isn't a commentary on the quality
of the parody, but rather whether it would fall under
the consideration of fair use or not. Now, to be clear,
weird Al makes it a practice to get permission to
do his parodies before he does them. He licenses the songs.

(46:41):
In cases like smells like Nirvana, he might have been
able to skip that step, or more likely his music
label would have if they were willing to defend any
lawsuits that came their way as a result, but as
both a courtesy and kind of the necessity, he reaches
out before recording parodies. Usually there's at least one version

(47:04):
of this where things didn't work out though. Actually there's
a couple I can think of, but I'm gonna mention
one in particular. So, back in two thousand and six,
We're All. Yankovic was working on an album and he
wanted to include a parody of the James Blunt song
You're Beautiful. Yankovic's version was a parody called Your Pitiful,
about a middle aged dude who's seriously down on his luck.

(47:26):
Blunt was receptive and he gave the go ahead to Yankovic,
But as Yankovic's album neared publication, Blunt's record label, Atlantic Records,
reached out to Yankovic's label and demanded that the song
not appear on the album. And you know, music labels
typically hold the IP for the actual songs of an artist.

(47:49):
In this case is a little more complicated than that,
So getting permission from Blunt, while a good thing, wasn't
totally legally binding. Blunt probably could have pushed back on
Atlantic Records about this, but that's not exactly an easy
thing to do when you're an artist. I mean, you
want to work with your label. You don't want that
to be a confrontational relationship. And as I mentioned, earlier.

(48:14):
Defending fair use is expensive because it all goes to
that consideration of a court, and that means lawyers and
lawyers have fees, and so defending an instance as fair
use in court can mean that you're paying thousands or
tens of thousands of dollars in fees just to defend yourself.

(48:34):
There's a financial disincentive to the average person because again,
these laws were made with corporations in mind, big entities
that can afford these kind of things. The average person can't.
So corporations like music labels or publishers have entire teams
of lawyers who do this stuff all the time. They

(48:54):
can put pressure on folks with threats of lawsuits, and
even if those folks are in the right now, even
if their works clearly would fall under fair use, to
defend it in court could be way too expensive for
these individuals to afford it. There have been cases in
which people have settled out of court for thousands of dollars,

(49:15):
not because they felt they were legit and the wrong,
but because trying to prove that they were innocent of
infringement was more expensive than settling. It's pretty darn brutal. Now,
what about all those posts and YouTube videos that say
no copyright infringement intended, those are pretty much worthless. It's
a kin to posting on Facebook that you aren't giving
Facebook the rights to your data. That's also useless because

(49:38):
just by signing on to Facebook and making an account,
you have to agree to Facebook's terms of service. That
kind of supersedes your little post that says you're not
in favor of Facebook using your data. Facebook's responses too bad,
because you agreed to it by being on the platform.
Now that's part of our terms of service. If you
don't want us to take your data, don't be on Facebook.

(50:00):
That's kind of the way that works. So if you
come across a video that says no copyright infringement intended,
or a picture on Instagram that clearly doesn't belong to
the account that posted it, just note that that phrase
means nothing. Intent is not part of determining whether someone
is infringing copyright in the first place. It doesn't matter
what you intend. There's definitely a gradient when it comes

(50:23):
to copyright infringement. Like if I include half of a
music video online, that's copyright infringement, But if I include
the whole thing that is worse. And if I monetize
the video where I do it, that's even worse. But
even that smallest first example I gave is still infringing.
Doesn't matter whether I think it is or not. You know,

(50:44):
if I can think something's not a crime, but if
legally it's a crime, doesn't really matter what I think.
There are a lot of other things I need to
say about this, but one thing I want to sum
up with right here before I close out, and we
will pick back up in the next episode, is that
Tom's Scott did a great job exploring the issues of
copyright and YouTube in particular, and I'll look more at

(51:05):
YouTube in the next episode. He did it in a
video titled YouTube's copyright system Isn't broken? The World's is,
And shout out to listener Kat, who first turned me
on to Tom Scott's videos. Scott does what I do,
only he does it with a British accent, so he's
better at it than I am by default. Also, he's
genuinely good at explaining stuff like this, so make sure

(51:27):
you check that out and we'll come back to talk
more about YouTube and copyright infringement and content ID and
some of the laws that have been passed after big
media companies have lobbied Congress in the United States that
have changed the way information gets shared on the Internet.
We'll also talk about some of the crazy movements that

(51:48):
companies have made against individuals and an effort to crack
down on things like piracy. Because all this is tied
up together and it's all a mess. And really what
it boils down to is that copyright law itself is
in dire need of a full rewrite. But that's dangerous
because the parties that are particularly interested in a rewrite

(52:10):
of copyright law are not looking to make it better,
They're looking to make it last longer. Hope you enjoyed
that episode from twenty twenty one, Copyright and fair use. Yeah,
fair use is one of those things that we can't
easily leverage ourselves, even in a podcast in a big

(52:30):
company like you might wonder why don't I do an
episode about a certain musical instrument like the Mogue synthesizer
and then include a whole bunch of Mogue music. Well,
it's because even though you could argue, yeah, it's fair use,
you're commenting on something and you're using it as an
example and it's the vast majority of the material is original,

(52:53):
it's not taken from a copyrighted work. That's still something
that comes up in court cases, right, Like, that's you
argue once you've already been sued, and ain't. Nobody wants
to get sued. So yeah, it is a complex thing,
and it's one that unless you're paying licenses to use
material for so that you can make absolutely certain that

(53:15):
you're not treading on any toes, you got to be
super careful. So I hope you enjoyed that episode about
copyright and fair use. I hope that was interesting and
informative to you. I'll talk to you again really soon.
Tech Stuff is an iHeartRadio production. For more podcasts from iHeartRadio,

(53:40):
visit the iHeartRadio app, Apple Podcasts, or wherever you listen
to your favorite shows.