copyright - re fair usage

[evomedia]

Sampling question have become worse of late, every day now there is a post of vjf asking how to sample...todays is how to rip from dvd's, they even say films or something, but it seems now they all reckon on being safe from copyright as they think they are protected under the fair usage laws. However as a commercial design studio I should point out how the arguements of other are actually giving false information to those that ask.

The actual Fair usage clause:
Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include -

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

(5) must be for a purpose such as criticism, comment, news reporting, teaching

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors


Now down to the crux of the issue, vj's do not fit fair usage based on those guidelines, especially as you have to meet ALL the criteria

point 1: VJ's sample for commercial reasons not for non profit education

point 2: Nature: hollywood films (no one can jusify sampling hollywood as fair usage if used for commercial purposes, believe me, under current climate of piracy they will hammer any form of piracy) other vj's work sorry illegal sampling of another vj's work is viewed as the worst possible break of copyright, as its essentially using a competitors work to finacially benefit the sampler.

point 3: the amount used, the only resbite for a sampling vj is they can argue they only used a small proportion, not exactly a waterproof case for fair usage

point 4: the effect of the use upon the potential market for or value of the copyrighted work. hollywood has and do still argue that sampled clips used out of context do cheapen their products or if even worse its other vj's work any vj sampling anothers illegally are directly affecting the commercial value of that content

point 5: (5) purpose...ok here is where it really falls apart for the sampler, I've hardly ever seen a sample that is a critism or comment on the orginal piece itself, it may be as the vjs say a comment for some message they have invented, however, to sample hollywood it has to be a comment about the film not just to portray a new message. i.e if you used a matrix clip, it has to be used to comment or critise the film the matrix, not just to comment on social issues...eg. a true direct coment by say a film site, reviewing the film, not a few cool clips cut up to fill a content library. This Law was introduced to allow review and critism in a standard format, with clips to illustate a point, that isn't the same as sampling and saying the footage is a comment on something unrelated, especially if its a commercial excerise.

So fair usage, unless your at say an anti war demo showing news footage of a war, your likely never to win a copyright case via fair usage laws. Tom even jusified fair usage in regards to copyright sampling by showing a sample of countdown, with hexstatic coming up as the anagram, saying it making a humorous comment hence its ok, however, in fair usage its neither commenting on or critising countdown itself, its also a commercial usage, so therefore would be open to legal challenge. This is the main problem, people have heard the worst advise, to the degree that alot of newbies may think they actually aren't breaking the law. however the advise they are getting is total crap. Fair usage my arse...its theft, but rather than saying ok yes we stole it, they say its ok we are using for personal social comments, which isn't even what fair usage is referring to.

[sleepytom]

i didn't say it was legal i said it was impossable to create that clip using non sampled footage and for the joke to remain intact.

if you bothered to read my other posts in that thread you would have seen me clearly state:-


originally posted by sleepytom
i doubt that it (the fair usage clause) is as relevent as everyone recons in us law ether.

lets face it sampleing is illegal - that it and all about it.




as nobody has ever been prosicuted for video sampling in the context of a Vj performance any speculation on the interpretation of he law is just that - speculation

untill such a test case there is no legal precedent and as such there is no way of telling how the courts will interperate the law.

speculation on this matter is misleading and irrelevent - if you want legal advice seek the assistance of a lawer not an online forum for VJs. (it even says this in the VJF terms of service - we are not misleading anyone who is paying attention)

[Rovastar]

Well said evo

True there is no legal precedent been given as nothing that we know of has come to court but although no legal expert I cannot see any conclusion other then to go with the those who own the copyright.

As a betting man I know where my money is.

[elbows]

At the end of the day it comes down to the reality of the situatin. THe reality is that copyright holders will only go to court under certain onditions such as:

a) they can make lots of money - not going to happen with vjs at the moment

b) they want a test case to set a legal precedent and send a loud message to people

c) if you have used their image or brand etc in such a way that they feel you have seriously damaged their image and thus their worth.

As best I know the UK doesnt have a fair use clause, and in any case I would never rely on it. Forget fair use, its a read herring. Which is a shame, because the only kind of sampling I will ever do is the "sampling the news for political purposes".

Really the law is in practical terms non-fuctional in regards copyrighted material used by VJs, I expect it will get sorted one day as intellectual property is coveted more these days, but the laws are for corporates etc, there needs to be some real system in place that works for both creators and users who arent corporate-sized.

Until such a time, may as well not bother analysing the law, the copyright issue for VJs currently comes down to individual peoples morals and copyright holders can only really try threats and legal threats.

[syzygy]

Originally posted by evomedia

Now down to the crux of the issue, vj's do not fit fair usage based on those guidelines, especially as you have to meet ALL the criteria


What leads you to the conclusion that the factors to be considered by then court when deciding a case where fair use is the defense are criteria which must ALL be met?

Courts and the law are much more complicated things than you seem to think. The fair use clause does not instruct judges to run down a mental checklist of criteria to see whether fair use is appropriate to the current case. Rather, it defines the considerations that the judge should bear in mind when deciding what a reasonable outcome to the case is. All of the factors should be considered but they will not all neccessarily have the same effect on the outcome. They will also form the basis upon which the lawyers for each side will argue their cases.

The result of the case will ultimately depend on what the judge decides is reasonable, not on some hypothetical checklist.

Dan.

[evomedia]

VJ sampling however doesn't fit several of the criteria though, and therefore, we really should never think fair usage a reasonable arguement against copyright theft.

Its the fact people keep saying here its ok to sample because of the fair usage clause, and at the end of the day I doubt any VJ would actually win a copyright lawsuit by claiming they fit the clause.

Anyone care to try the system be my guest, however, every week now I'm reading posts on sampling, saying its ok I can sample hollywood, dvd's, bollywood...because I'm following fair usage, and I'm only saying don't make excuses and justify illegal sampling by quoting a clause that will neither protect a vj or even help him if a case goes to court.

I have serious doubts as to the direction of vjing at present when media companies are beginning to dispare at copyright theft, after all media companies produce content, buy royalty free content and avoid using copyrighted material at all costs. And believe me they know the sampling vj epidemic that is gripping the media industry. I'm only saying the more people giving excuses and justifications, the less respect our artform is getting.

Its just a case of if your charging your services, clear the content first, because any commercial usage of copyrighted material will only lead to an eventual test case against a vj.

I know people will sample, but either clear the content or accept your stealing it, dont try using clauses in the law as a defense. When if it comes to the crunch, a court WILL view illegal sampling as copyright theft. So lets stop trying to justify it and accept your either a law breaker or not.

I can't quite believe I have keep justifying myself when I say sampling is illegal...I mean do people really deep down believe they aren't breaking the copyright laws? I'm not trying to force anyone to do anything, just saying it is illegal so stop saying its not illegal in posts. Thats all...

[sleepytom]

Originally posted by evomedia

Its the fact people keep saying here its ok to sample because of the fair usage clause, and at the end of the day I doubt any VJ would actually win a copyright lawsuit by claiming they fit the clause.


people arn't saying its ok to sample because of the fair use clauses...

people are saying that were you to be prosicuted for video sampling then you could construct a defence based upon the fair use clause (this true - wether the defense would stand up in court would depend apon all the factors of the case as well as the political will of the judges in the country where the case took place)

lets face it at the moment all of this is speculation, untill someone is prosicuted there is no way of telling how the courts will interprate the law

I'm getting really quite annoyed with people who have little understanding or experiance of legal matters trying to lay down the law on sampling, FFS lucus film can't be bothered to pursue any VJs for "stealing" there footage - why the fuck are you so worried about it???

people also say that its ok to smoke pot on this forum - why not have a go at them - there far more likely to come a cropper with the law than any sample user (after all its a crimminal offence to smoke pot and copywrite theft is a civil offence at worst)

[wellREDman]

"Breakin the Law, breakin the law
Dum Duh Duh Duh Dum "

[syzygy]

I really don't see this overwhelming proportion of posts that imply that VJing is protected by fair use - I think i must be reading a different version of VJF to evomedia ;)

In the version of VJF I am reading, pretty much every thread about using copyright footage has at least one post that makes it clear that using copyrighted footed opens you up, in theory, to legal issues.

The only people I have seen quoting fair use clauses are evomedia and me (to point out a general misunderstanding of how acts such as the Copyright and Patent Act are used by judges when deciding cases)

I may, of course, have missed some posts, but I certainly haven't seen fair use being regularly given as a safety net for samplers.

I don't see a huge mass of people who believe that sampling copyrighted material is legal. I do see a mass of people who don't believe that the current copyright laws are practical to enforce or are even ultimately for the best of original content creators or society at large.

Now, you could take the view that we should all adhere to all laws, even the ones we disagree with, not matter how unlikely it is that we'd end up in court over it. But that would mean:

* no one would ever take any controlled substances
* no one would ever drive faster than the speed limit
* no one would ever park on double yellows, no matter how short the drop off
* no one would record and keep TV programmes
* no one would record music from the radio
* free parties wouldn't happen
* no bars would serve any drinks after hours
* No one would get drunk on licensed premises
* Bar staff wouldn't serve anyone who was drunk
* we'd still have the poll tax
* church fetes would pay for liquor licenses in order to offer home made wine as a prize in a tombola
* small scale growers of e.g. tomatoes would pay ?1000 in registration fees before selling ?20 worth of seeds to their mates
* IPod users would have to get a broadcasting license if they want to use the ITrip (transmits a weak FM signal that can be picked up by a car radio)
* There would be no street art
* Most underground remixes of tunes would not exist

(these are all uk btw)

I'm sure there are plenty more laws that people regularly break that I can't think of right now...

Now, clearly there have to be some restrictions on how we behave, but it is also clear that the vast majority of people do not believe that all laws should be applied to the full at all times.

Yes, it should be clear to everyone that sampling copyrighted footage does put the sampler in contravention of the Copyright and Patent Act.

But it should also be clear that the likelyhood of a VJ ending up in court is very small (based on current experience)

It's a choice that everyone has to make for themselves, just like the choice to break any other law. Pretending that all sampling is legal would be misleading but it is equally misleading to hold up the letter of the law as if that somehow means that everyone should stop doing anything that isn't completely within the law.

Dan.

[evomedia]

I'm sorry to seem the ranter, just making sure things get nipped in the bud before someone just starting out without any grasp of copyright gets misled.

Its just a warning to those without any media usage knowledge, not to think as everyones doing it, it must be legal.

If we all keep it in mind everytime there is a post about ripping dvd's or sampling hollywood, that eventually, if people are selling services based on copyright protected material, a case won't be that long coming, especially with more vj's making content dvd's for venues. If your a sampler or not, the risks of selling any format of media with illegally souced content and charging for it, if playing live or dvd's, is open to a hefty fine.

I don't doubt it wont stop anyone. Just selling media in any form is always open to having the one person somewhere along the line say hey, they shouldn't be using that.

Working in a media studio, I've already seen people who have seen their media sampled without their knowledge by people just sampling away without a thought. When someone does steal your work, rip it off, and play it looking like rubbish, people will realise that copyright isn't a pointless law, but one that in essence is the only protection against theft of intellectual property, its not just about hollywood. Once someone samples and distributes it, you can't get it back, original work becomes worthless commonplace. It devalues something that took money, and strips the percieved value as a unique piece. It also rubbishes studio's reputations by really pisses off the clients that thought they had sole right. So before every gets on a high horse about pointless law, it has much more purpose than to stop hollywood samplers. It the only deterant against samplers, hence people should not rely solely on ripped material, but build libraries of cleared content.

I'm not even saying that people should purely self create but there are libraries built to sell content, audiovisualizers is a prime example. You can legally fill libraries, without needing to steal content, you can even ask for permissions to use protected material. Illegal sampling very rarely even comes near a simple request being made. Its all about people choosing to be lazy about even trying to source legally. They steal knowing why ask they would only say no... well I create content all day, I source royalty free footage if needed, I strangley never had to use sampled copyrighted material to meet client needs, even sites that sell rights to content aren't always expensive. I know no matter how small a budget, any idea can be achieved without the need to rip illegally.

[Lucidhouse]

it's an interesting discusion.

But I do think that young/new vj's should be ecoraged to create their own content, in the long run this aproach developes their skills and if ever they're invited to do something for broadcast or a commercial dvd they will not face legal problems...

Saying all that, i do think that sampling is an integral part of our artform and it would be great to have clarification on sampling laws.
I sample quite a lot, but I do try do things to the samples so that they fall within some of the legal boundries ie: short edited clips, usage of footage thats not restricted anymore(old stuff/public domain stuff), radicaly altered samples to the point of being unrecognisable, animating sampled stills, etc.

Doing stuff in this way will put vj's in a position of strengh when it comes down to the crunch. In the future clubs/festivals might only use people whose work is cleared under copyright laws for fear of beeing prosecuted themselves.

To any newbee I say make original content and sample with care.


morris

[holly]

There has never, to my knowledge, been a post on VJF asking how you sample from movies without at least one post saying it's wrong and they should learn to make their own content. I can't believe Evo, that you believe VJF is currently promoting sampling. Where is the post encouraging illegal sampling?

I generally try to keep it in perspective (ie: Tom's consideration that Sampling - at most - is a civil court issue and not the same as a criminal court on the level of drug use or selling contraband...).

The US laws DO include "fair use", and while most of that is concerning educational value, you must also consider that "Art" in the US is considered to be of "educational" value (like medicine)... while having very little other value (unless it has been sold for a specific price at which point it has a monetary value attached). I have seen what is obviously "illegal" sampling of Hollywood movies in art galleries with no legal reprocussions. Showing "art" in a club is very likely to receive valid consideration under the same defense since it would be easy to bring in professional advisors to the court who could claim that such "art" is a recontextualization of commercialism. However, a published work comprised of samples would be very difficult to defend....

All that said, I still think sampling is an immature approach to visual expression, and I can't think of hardly a single serious NYC VJ who samples (video), as it is considered a standard to at least start with your own visual content. Sampling must be very huge in the london/UK scene for all the attention it gets here on the forums, but in the NYC scene it almost doesn't exist. Can't speak for the rest of the USA....

[rickmaersk]

evomedia
And believe me they know the sampling vj epidemic that is gripping the media industry

Would you care to justify this statement.
Is there an epidemic?
Is it gripping anything?
Has there been discussions about this in film trade magazines?

I think you are probably correct as regards the letter of the law.
I think sampling should be discouraged.
However... yet again we have postings that take a concept from one media ( sound, fine art, in your case graphic design ) and put into another one.

Your graphic design examples seem pretty straight forward to me: the sampling undermines the value of the sampled work, and pisses of the client
I am assuming you are talking about people sampling graphic design or photography for other graphic design projects.

because any commercial usage of copyrighted material will only lead to an eventual test case against a vj.

Will it? Seems to me like we have had copyright infringing visuals in clubs for 20 years and no sign of a test case yet.

Anyone care to suggest why?
Here's my theory. This is not a justification for copyright abuse just a suggestion as to why I think evomedia is wrong regarding the inevitability of a test case.
The companies that are having their work stolen do not know it's happening. It isn't effecting their sales. Currently companies such as Warner Brothers are not interestred in making VJ content DVDs ( OH.. I wonder why?) so they don't see what's going on in this scene/market. People ARE sampling from in the same media/format but they are sampling to a different market ( if there is a definable market at all).

Anyone here suggest the size of the market for VJ friendly content in the UK?
Is it a big enough market to interest big business?

If the time ever comes when there is a serious market for VJ content (like there is a market for music and software and graphic design), when there are content DVD lables THEN there will be opportunities for straightforward cynical copyright abuse. e.g. People WILL just make film loop DVDs to sell to club owners.

But right now... no market, no test case.

Just a theory.

Also... If you abuse copyright in your set rather than in a content for sale DVD then the most likely outcome of a test case will be a court order requesting you to stop using the content and destroy your masters. Like the KLF with ABBA and 1987 lp.

I cannot wait for you test case. It will be a sure indicator that there is a decent market for content.

Rick

[robotfunk]

mmmmmm law abiding citizens

why are you all so upset with the legalalities are they that interesting really?

the law doesnt stop me from doing things that I want to do and that seem harmless to me. if I refrain myself when sampling it's not cause of a fear of lawyers, it's cos I don't wanna be taking the piss, I don't wanna show off with someone elses feathers, I don't wanna hitch a ride atop the success of the latest hollywood movies, matter of fact i'm hardly interested in any hollywood footage at all (for sampling) or in other vj's material (for sampling)
if I were just showing stolen bits of other people's work there would be no pride in it for me, no real reason to do it other than pay the rent.(which it wont)

I sample stuff when I like it, and I think that obscure enough to warrant liberating it from the great unseen by recontextualizing it.

I try to steer away from stuff a lot of ppl already know, and from stuff that gets too close to what a vj does, like other vjs' work, animations etc. basically if I think some other vj would use the same material it loses value to me..

OTOH if I thought of something brilliant to do with something well known and commercial, i'd probably do it live, until the fun wears off...

point is none of this has to do with the law, if the color yellow would be banned tomorrow would you be advicing people to stop using it? I'd probably try and paint the largest possible surface to the contrary colour so that people would see yellow afterwards when staring at a white wall or something, in any way try to find my way around it creatively .... for me sampling is really an artistic/moral issue rather than a legal one

[sleepytom]

exactly we spend far too much time talking about legal issues which none of us properly understand and yet the moral issues are hardly touched apon....

for me sampling becomes a problem when people sample the work of there peer group contemporys.

If an artist has made work and widly relesed it to the public (on a scale where its instantly recognisable to most people) then i have little moral issue with using that sample as it will be a clear reference to the original work. same goes for news footage etc - there is a clear cultural refrence.

ultimatly for me it comes down to wether your using the sample because you wish to saysomething through using that specific sample or because you are filling out your set with other people work coz you can't be arsed to make your own.

one other point that is rarely discussed is the idea of the "VJ single" - a short 5min or so self contained piece that include stylised credits that is designed to be played whole (kind of like a record) - if more of these type of tracks were being made and relesed for small fees (like record prices) there would be an esay way for people starting out to fill up there sets with high quality matireal apropreate for clubs without resorting to sampling each others work / using baraka again.

[LEVLHED]

http://news.bbc.co.uk/1/hi/technology/3341211.stm

[julez]

only problem is over here the rules on intellectual property and copying of owned data (i.e. bought from someone else) are a hell of a lot stricter.

I remember that news back in '99 when the MPAA said that dvds were 'uncrackable':o

[Lucidhouse]

well put Jilt and Tom

At the end of the day art is freedom of expression however the individual chooses to compose content is down to their pride, moral standards and the message needed to be conveyed.

Somehow it looks like this thread is sampled vs selfmade in another guise.
It's a hot patatoe and people will always disagree.

[wellREDman]

"The Law is a an Ass"
- william shakespeare

[holly]

Originally posted by LEVLHED
http://news.bbc.co.uk/1/hi/technology/3341211.stm

The "DVD JON" case is NOT about sampling or about illegal copying of DVDs! While the deCSS program at the heart of the case IS the basis for most illegal DVD copying, it was not created for that purpose. One of (perhaps the most) important aspects of this case was Johansen created deCSS to allow DVDs to play on Unix systems, and the judge agreed that an "open source" system was being ignored by the big media-corps for lack of profit.

If Johansen had actually created a ripping program and sold it under a banner of "COPY ANY DVD FOR FREE", he would be in jail right now.

I also understand the judge said the 16-bit encription was "too simplistic" to be taken as a serious attempt at copy protection. Ha ha. That must have been a burn in the ass of the media mogels who paid a fortune in licensing fees for CSS, only to have it cracked by a 15 year old!

"The Law is an Ass"
- william shakespeare
That quote is from Charles Dickens, Red.
:rolleyes:

[rickmaersk]

the "VJ single" - a short 5min or so self contained piece that include stylised credits that is designed to be played whole

Tom
that's a really good idea. If it was for club use it wouldn't have to have TV production values. By definition you'd have something that was very different from a short film. Would you post this as a new thread?

why are you all so upset with the legalalities are they that interesting really?
"The Law is a an Ass"
etc etc etc

All this "it's about morality not legality stuff" is a cop out. Sorry, but I find the legal aspect of this really interesting. I was assuming that the other people posting has jobs/work/clients where legal aspects occaisonally affected other areas of their work. Have none of you ( or even a friend?) ever had to deal with a solicitor over an insurance/debt/tax/injury issue? One good reason to know where you stand legally rather than just morally is that civil court cases can cost you a fortune in fees and even worse whole days of your life wasted waiting for your case to be heard.

Rick

[littlecatalyst]

OK SANTA THIS IS WHAT I WANT FOR XMAS:
i want this year to be able to start going to dj shops (the good ones that also sell v4s and kaos pads) and leaf through the singles, ep's and yes even full legnth dvds of visuals. wether you believe samplers are honest good folk or evil bastards is as imprtant to me as whether you believe in pixies and santa hisself..... what i want is production! and all you content creators may be able to finally get some good honest cash from all us samplers so we can continue to be lazy and play other peoples stuff. ((me i'm looking forward to some kids looking at each other and pointing to the screens and saying "oooh thats my favorite visual!!!" i seen 'em do it about some songs))


Originally posted by rickmaersk
Tom
that's a really good idea. If it was for club use it wouldn't have to have TV production values. By definition you'd have something that was very different from a short film. Would you post this as a new thread?
Rick

besides you own the rights to your original material so you can be pretty precise regarding the rights you give with purchase of the disc. thats what i want and ive been good all year-- well kinda