Basically, copyright law says you can’t perform a song without paying royalties. There are fair use provisions that say you can use portions in transformative works.
What fair use means is one of the reasons
why there are intellectual property lawyers. It’s a fuzzy concept. That fuzziness gets exploited by infringers and copyright holders.
Perhaps the latter is true in the case of a mother who posted a 30-second video of her baby dancing to a Prince song. Universal ordered her to take it down because they said it violated copyright law.
This is now a court case. The mother has help from the Electronic Frontier Foundation contending that Universal owes her damages for misrepresenting copyrights.
Keker & Van Nest lawyer Michael Kwun, who volunteers for EFF and is representing Lenz, says he’s unaware of any legal judgment holding a copyright owner liable under the DMCA’s misrepresentation provision. EFF lawyers would like to get such damages from Universal, and have found a sympathetic client in Lenz. Because Lenz’s use of the Prince song was “obviously” fair use, the record company’s takedown notice is the kind of misrepresentation that Congress sought to punish, EFF lawyers argue.
The Lenz video was clearly “noncommercial and transformative,” writes Kwun. In addition, the Lenz video uses only a small portion of the original song—the whole video is less than 30 seconds long—and there is “no plausible market harm” to Prince.
Naturally the Universal attorneys disagree.
Here’s the thing. Letters from lawyers are scary things. And very few of us have a legal fund available to defend our YouTube accounts. So any defense of our right to copy (which is the true meaning of copyright) gets lost. And copyright lawyers know that. This lawsuit says “Stop being bullies!”
As a content creator, I want to preserve the use of my content. But there are limits. All in all, it’s better to encourage sharing of content. Society and commerce benefit overall.
One last point. The Electronic Frontier Foundation has an excellent Legal Guide For Bloggers. It’s an excellent resource that explains more of what you CAN do rather than what you can’t.