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The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors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