Fair Use, Gotye and Star Wars

FYI, this is a repost of a post I wrote on my company blog.
Back in August of 2011, my girlfriend sent me a link to a charming music video that had just dropped.  

Within the next year, this video received several hundred million views, and propelled two young artists -- Gotye and Kimbra -- to international fame. Clearly, this was a huge win for them, and I'm sure this video generated tons of additional ticket, album and t-shirt sales, despite the fact that they probably made peanuts from the video itself. This video was a loss leader, driving traffic to paid services, while itself representing a largely sunk cost.

The video became a cultural phenomenon. And, as the saying goes, the sincerest form of flattery is imitation. Not surprisingly, some extremely well done remakes were created, which also received millions of views on YouTube. For instance, here is the talented band "Walk off the Earth" performing the song on a single guitar being played by five people. 

It’s pretty awesome, and has received more than 133 million views as of this pub date, making it one of the most successful YouTube videos of all time.

Here is a version of the song reworked about Star Wars, a video that I personally find to be even more moving than the original (Han shot first.) 

I'm sure many people my age agree, and it’s already reached nearly five million views.

You can react two ways to the creation of these videos: the first is to recognize that they are flattering forms of tribute and bring attention, and therefore additional opportunities for revenue to the original video itself. The second is to send DMCA (Digital Millenium Copyright Act) takedown notices to YouTube claiming that these videos infringe the copyrights of the& original artists.

Luckily, it appears that Gotye and Kimbra are perfectly happy to take the first approach, and, collectively, we should thank them for that. Technically, they would be within their rights to send takedown notices because these are clearly derivative works within the meaning of Title 17, the US Copyright code. An example of an artist taking the second

path is illustrated by the now notorious Lenz case wherein the Artist Formerly Known and Now Again Known as Prince sent YouTube a DMCA takedown for a video in which a child was dancing and, in the background, a Prince song was playing. Years of litigation and substantial cost was incurred, resulting in the court determination that a rights holder must consider fair use before sending a takedown notice.

The problem, however, is that very often, such considerations are just not made. Automated systems generate DMCA takedown notices and send them out en masse, but fair use determinations, by definition, need to be made by human beings using their reasonable judgment.

Now, there is a strong argument that both of the above videos are, in fact, fair use. However, the way that our copyright system is set up requires that YouTube would need to take down the videos upon notice from the original rightsholder, as fair use is a so-called "affirmative defense." This means that in order to make a claim of fair use, you need to hire a lawyer to write a response letter, and the default judgment is heavily in favor of the original rightsholder.

As a result, we have a system in which the first person to put up a new video on YouTube has the de facto right to send DMCA takedown notices to any imitators, even if there is no demonstrable harm caused to the original artist by the publication of the imitations. In other words, the fair use exception is a check built into copyright law out of respect to the fact that certain types of re-use and commentary on copyrighted works are necessary for society due of free speech considerations, and also, there is no actual harm done to the artists by the imitation of their works. Yet, because of the DMCA takedown process instituted in 1998, the default system now actively harms imitators, who need to have lawyers on retainer to send response notices to YouTube in order to have their own videos put back up. Personally, given that I'm of the opinion that most great art includes a remix of one kind or another, I'm not happy that our copyright system is predicated on the idea that imitation is harmful.

Because, honestly, I like the Star Wars version of the song better.


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