It Would be Prudent to Not Use Popular Songs in Your YouTube Videos

Thursday, September 24th, 2015

By now, you’ve probably heard of the recent Ninth Circuit Court of Appeals ruling about the mom who posted a video of her toddler grooving to Prince’s hit “Let’s Go Crazy.”

It’s the famous “dancing baby” YouTube video. Search for “let’s go crazy #1” on YouTube. It was posted by mom Stephanie Lenz.

Just in case this legal news gave you the impression you can post videos on YouTube using popular songs as a soundtrack, I suggest you do the opposite of Prince’s exhortation.

Lenz had posted a low-quality short video of her toddler bopping to some music playing in the background. The music is practically unintelligible, but Universal Music thought otherwise.

Universal is the publishing administrator for Prince. It sent a Digital Millennium Copyright Act (“DMCA”) takedown notice to YouTube claiming the music use was a copyright infringement.

Lenz fought back. She filed a counter notice with YouTube claiming her video wasn’t a copyright infringement. Also, an advocacy organization, the Electronic Frontier Foundation, represented her for free in suing Universal claiming the DMCA takedown violated the law because Universal should have determined that the music use in the video was a fair use and, thus, not a copyright infringement.

After eight years of litigation, the Ninth Circuit recently held Lenz has a theoretical basis for suing Universal, although it’s not clear whether she’ll win or recover much. The Ninth Circuit held that copyright owners, such as record labels, must consider whether using their content in a video (e.g., music or movies under copyright protection) is a fair use before demanding that it be taken down under the DMCA.

There is no black-and-white test for when fair use applies. The concept is that you sometimes can use someone else’s copyright property, such as part of a song, without permission, for certain purposes, such as criticism, commentary, news reporting, or teaching.

When courts examine whether fair use has occurred, they often look at whether the user copied the entire copyrighted work (e.g., the whole song), and whether the copying would tend to undermine the marketplace for selling that copyrighted work. For example, would someone be unlikely to buy a copy of “Let’s Go Crazy” because he can listen to the dancing baby video?

So, does this mean you can put up a video backed by your favorite popular song?

The practical answer is you won’t get away with it unless the rights holder consents, or unless you buy a license to use the song (there are services that sell such licenses).

Unlike the dancing baby video, using a full version of a protected song as your video’s soundtrack almost certainly isn’t a fair use. You wouldn’t have a counterargument if the rights holder uses the DMCA to take it down.

But, realistically, it probably wouldn’t reach that stage. YouTube uses a program called “Content ID” to screen for use of popular content, such as popular songs and movies.

Specifically, YouTube uses a computer algorithm and database to look for such content. When it detects usage of, say, a popular song that’s in its database, it flags that video for action and gives the rights holder a choice as to what to do about it. The DMCA isn’t involved in this process.

The rights holder can have the video taken down, or have the video muted (in the case of copyrighted music), or choose to leave the video alone.

Yet, another choice is popular – leave the video up, put advertising around the video, and the rights holder gets a cut of the ad revenue. Sometimes the ad appears alongside the video, or as a brief video intro, or as a small visual ad that displays over the video for a while.

Check it out. Go to YouTube and search for a famous song. Chances are you’ll find a full copy of the song accompanied by some advertising. I tried several famous classic rock songs and found every single one, with ads.

Ultimately, you’re at the mercy of the rights holder. It can leave your video up and monetize it, or silence it, or have it taken down. You don’t have a right to use someone else’s music without permission.

Also, the rights holder doesn’t have to stop with just having your video taken down. In theory, it could sue you for copyright infringement and recover money from you, and you would incur attorney’s fees defending yourself.

Rather than going crazy uploading music-backed home videos, I recommend that you inwardly channel the Beatle’s “Dear Prudence” and save that music (that you downloaded legally, of course) for your private home enjoyment.

Written on September 22, 2015

by John B. Farmer

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