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During the rise of websites like YouTube and Tumblr, there was constant discussion regarding the liability for posting unauthorized copies of things like music videos and television shows. Having already established that the individual who posted the video is clearly infringing copyright, the question turned to the liability of the intermediary that provided the venue for posting. The government responded with Section 512 of the Digital Millennium Copyright Act (DMCA). Section 512 establishes the notice-and-takedown procedure: if an individual notifies the intermediary of a copyright infringement, the passive intermediary is required to remove the infringing product. Now, with the House of Representatives’ recent proposal of the E-Parasite Act, the hot topic has turned to the streaming of videos featuring individuals singing others’ songs. The Act has generated public outrage, even spawning a huge campaign called Free Bieber. Yet, despite all of these arguments about who is liable for what on YouTube, I’ve heard little discussion about users’ imposition of their own audio tracks over others’ videos. Finally, these videos are gaining the legal attention that rightly reflects their online popularity.
Bad Lip Reading is a Tumblr account that dubs outrageous (i.e., hilarious) songs and speech over videos distributed by musicians and politicians. Bad Lip Reading inserts any speech that it appears the speaker is saying, regardless of the absence of an intelligible message. Since its debut earlier this year with “Gang Fight,” an interpretation of Rebecca Black’s “Friday,” the website has been everywhere. Just this month, the producer of Bad Lip Reading was interviewed by Rolling Stone, on the condition that his identity remain anonymous. Even those mocked by Bad Lip Reading’s posts have been complimentary. Apparently, Michael Buble and Michelle Bachmann were particularly tickled by the treatment their videos received.
Universal Music Group, however, was less amused by the blog’s videos than the rest of the adoring public. Last week, following DMCA notice-and-takedown guidelines, Universal notified YouTube of infringement of one of its artist’s videos. It was removed immediately. Of course, other users responded by posting more copies of the allegedly infringing video. One can only assume that this will not be the last that Bad Lip Reading hears from Universal.
Universal’s actions beg the question, however: is this actually indefensible copyright infringement? Clearly, the speech, lyrics, and music created by Bad Lip Reading are entitled to its own copyright; they are completely the creation of Bad Lip Reading. However, the videos present another question. It would be easy to call these videos “parodies.” In fact, “parody” is probably the exact way we would describe those videos in everyday language. Plus, courts already found that parodies are permissible under the Fair Use doctrine of the Copyright Act when 2 Live Crew created a parody of Roy Orbison’s “Pretty Woman” (check out Campbell v. Acuff-Rose). But 2 Live Crew’s parody was only deemed fair use because it had passed the four-factor fair use test. There is no categorical allowance for parodies, and I’m not altogether convinced Bad Lip Reading would pass the same test. While the blog’s use of the videos is certainly not commercial, I see nothing truly transformative about it. The whole premise of the website is that the video has not been altered at all – the website is merely reinterpreting what the video’s speaker appears to be saying. Moreover, the videos don’t appear to be shedding new light on the song or video, unlike other now infamous YouTube parodies that come to mind that have also been subjected to copyright questions. Of course, my word is not dispositive. The writers at Techdirt argue that there is a good case for fair use here, because the parodies might provide a commentary on the actual video, itself. But is a string of unintelligible words really commenting on a video of a politician speaking directly to a camera? And, more importantly, should Universal even care about the videos posted by Bad Lip Reading? As the fourth factor of the fair use test asks, is this use of the original video somehow impairing the market for the original video? At the most fundamental level, is this truly what the Copyright Act was meant to protect against?
– Erin Reimer
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