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

Image Source

Tagged with:
 

3 Responses to Parodied or Not Parodied: That is the Question

  1. svalenzi says:

    I would agree with Lauren’s take, but for a different reason. Acuff-Rose was pretty clear that the most important factor in re: fair use is no longer market harm, but rather is the transformative nature of the work. While all of the points made here as to why these youtube videos might not be fair use, the realistic fact is that the fair use doctrine is more robust today than it has ever been – courts simply find fair use whenever they can, and especially in a situation like this, where the new work is made non-commercially and pokes fun at the original work, it seems highly unlikely that any judge would ever find against fair use in this scenario

  2. Erin Reimer says:

    Lauren,

    Thanks for your comment. I tend to agree with you that the videos are aimed at two completely different markets, but the courts have seemed to say that they are not willing to allow free-riding on another’s copyrighted work in order to enjoy your own success. I’m not sure I can agree that the transformative inquiry toes the line of viewpoint discrimination; I think it is merely the court’s way to encourage fair competition and discourage free-riding. Are you suggesting that, based on the fact that the videos are aimed at different markets, then this satisfies the “transformative” inquiry in the first factor of the fair use test? Or do you think instead that it is important to make a policy decision here to consider exclusively the different markets factor?

  3. Lauren Gregory says:

    In my view, the fair use analysis boils down to whether or not the alleged infringer is creating a substitute for the original (thereby eroding profit capabilities in the original market). As you point out, the products at issue here seem to be targeting two completely different markets; someone who wants to enjoy Michael Buble’s music is probably not going to go looking for Bad Lip’s version, and vice versa. If we are considering net societal gain, we might want to allow the Bad Lip version to fall under fair use, because it does not seem to harm sales of the original Universal products, and at the same time, does provide a unique take on them. If we worry too much about whether the Bad Lip lyrics offer a valuable message, we are in danger of letting courts dictate what is socially “valuable” and what is not. This, it seems to me, might constitute viewpoint discrimination and therefore might run afoul of the First Amendment.