Last week, The Next Web reported that Prince’s record label NPG Records had recently sent a DMCA takedown notice to Twitter regarding eight Vine posts. The use (and abuse) of the takedown process happens all too often. (According to Google’s recent Transparency Report, Google is nearing 20 million takedown notices a month from rights holders, and the numbers are continuing to rise.) This particular takedown incident is noteworthy for two reasons: the particular media format (Vine), and the claimant (Prince). This post describes the nature of the dispute and explores the copyright implications of short clips of protected material.
Vine is a service (currently only available on Apple devices) that Twitter recently acquired, on which users create and post six second repeating video clips. Sometimes they’re one continuous shot, other times it’s a choppy mashup of a few video clips. (If you’re unfamiliar with Vine, check out this BuzzFeed post with some very entertaining Vines by inimitable supermodel Tyra Banks.) According to The Next Web, although there are no other Vine takedowns on Chilling Effects, a “Twitter spokesperson tells us that this isn’t actually the first time Twitter has received takedown requests for content that appeared on Vine.”
That the first takedowns of Vines to appear on Chilling Effects were filed by Prince is oddly appropriate. Prince is notorious for his disdain for the Internet, and especially for filing the DMCA takedown against a YouTube clip that is now known as the infamous ‘dancing baby case’ (the still-ongoing Lenz v. Universal).
The Chilling Effects database entry on these takedowns is dated March 26, 2013, and was filed via email March 22, 2013. When I tried to visit the eight Vine URLs listed in the message from NPG Records each just said “Page not found” with a big frowny face.
However, I tried Googling each one, to see if any results came up for public Twitter results, and they did. The first one turned up a Vine user’s handle (@ZackTeibloom), and so I checked for the same handle on Twitter, and it turned out he had just had a conversation several hours earlier with Mike Masnick (@mmasnick) from Techdirt. Several of Zack Teibloom’s tweets are below:
It turns out all 8 of the Vines that were taken down belonged to him: “literally all 8 of them were mine. That was the exact email they sent me.”
He described the content of the eight Vines: “Two Purple Rain videos, Prince talking, Prince gyrating against a chair, Snoop from “The Wire” dancing, typical Prince show.”
He explained the takedown process (or lack thereof): “They sent the exact letter you posted and asked that I take the Vines down. Links to Twitter were removed by them.”
And he wrote that he was ‘amused’ and treated it like a C&D, which suggests that he didn’t know he could have opposed the takedown with a counter notification: ha, yeah that was his threat. I treated it like a cease and desist. All removed. Not worried. I was amused by it.
According to Teibloom’s tweets, it does not appear that he contested the takedown with a counter notification under 17 U.S.C. 512(g).
The DMCA notice and takedown regime has been essential in the rise of online platforms, particularly websites that host user-generated content. Without the certainty that services won’t be liable for costly statutory damages for copyright infringement based on content users uploaded — provided they comply expeditiously with notice and takedown procedures — there would be a lot less investment in online innovation. The 2011 Booz & Company study entitled ‘The Impact of U.S. Internet Copyright Regulations on Early-Stage Investment’ surveyed venture capitalists and found that a significant majority are deterred from investing due to the potential of liability for allegations of violating copyright, and would support an increase in clarity of copyright law and regulations.
There is thus much to be said for the certainty that the DMCA process provides. One of the downsides, however, of avoiding litigation is that the rights holders’ claims are not subject to review by a judge or lawyer, and so allegations of infringement tend to go unchallenged. This may not be a problem with regard to cases of willful infringers, but in many cases (such as, arguably, these Vines), the circumstances are not clear cut. Does the claimant have the right to object to the use? Would the use of the work qualify as fair use? Is it even infringing in the first place?
As fair use is technically an affirmative defense (although there is some academic dispute about conceptualizing it as a right that can be exercised), before beginning a fair use analysis, it must be established that the content at issue was copyrighted and the conduct constituted infringement. Over the last few decades, new legislation has continued to expand the scope of copyright, but not everything can be and is automatically copyrighted. Certain forms of expression aren’t protected, such as works that are in the public domain, works that are functional, works that aren’t fixed in a tangible medium, and works that lack sufficient originality. Even if something is copyrighted, sometimes the copying at issue is so limited that it is not actionable, and instead is considered de minimis.
After it is determined that there has been copying of something copyrightable, then it is time to consider affirmative defenses, in particular the doctrine of fair use, a four factor balancing test that can exempt conduct from constituting infringement. For a primer on fair use, its importance for innovation and disruption, and some key precedents, check out this post I wrote a few months ago.
A lot of people (and even businesses and institutions) have come up with artificial bright line rules for fair use, such as the number of seconds a video clip can be, or the number of words a quote can be. For better or worse (I’d argue ‘for better,’ as I think fair use’s flexibility is one of its best features), there is no such test for fair use. Creators and consumers may think it is hard to infringe copyright in six seconds (the length of a Vine), as a clip that short is unlikely to harm the market for the original work. Courts have come to different conclusions on this point. A few cases may be particularly instructive and relevant to the Vine platform, and the six-second clips it permits:
(1) The Sixth Circuit (the home of Nashville) has several cases (the Bridgeport trilogy) that strongly favor plaintiffs alleging copyright infringement. The 2005 Bridgeport Music v. Dimension Films, et al. sets a bright line for the Circuit: “Get a license or do not sample.” Bright line rules such as this are intended to make things clearer and more predictable for everyone — potential defendants, potential plaintiffs, judges and juries. If the law is clear, then resolving litigation is a lot easier, and can happen a lot earlier in the proceedings, such as the summary judgment stage. But now that this circuit has this bright line rule, it is unlikely that they will consider, as many courts do, the growing trend of ‘transformativeness’ as a key part of the analysis. The facts suggest that the sample was transformative (but the court does not mention the concept, as it does not do a fair use analysis):
The recording “Get Off” opens with a three-note combination solo guitar “riff” that lasts four seconds. According to one of plaintiffs’ experts, Randy Kling, the recording “100 Miles” contains a sample from that guitar solo. Specifically, a two-second sample from the guitar solo was copied, the pitch was lowered, and the copied piece was “looped” and extended to 16 beats. Kling states that this sample appears in the sound recording “100 Miles” in five places; specifically, at 0:49, 1:52, 2:29, 3:20 and 3:46. By the district court’s estimation, each looped segment lasted approximately 7 seconds.
Based off of these facts, the district court had found the sample de minimis and thus not infringing, and so did not consider fair use. However, the Sixth Circuit reversed, and found the sample infringing, based on the bright line rule. The judge did add that the district court was welcome to analyze fair use on remand, although the case did not end up being reconsidered after the appellate opinion.
Given the infamous 2005 Bridgeport precedent, the 2007 Bridgeport Music v. Combs and the 2009 Bridgeport Music, Inc. v. UMG Recordings, Inc. unsurprisingly were decided for the plaintiffs as well. The 2007 case doesn’t mention de minimis or fair use, or the length of seconds of the sample. The 2009 case interestingly finds the sample to be transformative, but yet not fair use, a result that is rare, and possibly unprecedented.
(2) The 2003 9th Circuit case Newton v. Diamond involves a sample (six seconds — just like a Vine!) of a flutist’s recording on the Beastie Boys track “Pass the Mic.” The facts of this case are relatively unique, because the Beastie Boys had licensed the sound recording from ECM Records, but not the underlying musical work from composer and performer James Newton. Each piece of music has two copyrights: the musical work copyright (generally owned by the composers, but often granted to a publisher), and the sound recording copyright (generally owned by the performers, engineers, and everyone in the room working on that particular recording, but often granted to a record label). The six-second sample consists of three notes (C, then D♭(which is a half step up), then back down to C). The district court had held that those three notes could not be copyrighted because, as a matter of law, they lacked the requisite originality. Additionally, they determined that even if the segment were eligible for copyrightability, the Beastie Boys’ use of the composition was de minimis and therefore not actionable. The appellate court upheld on the de minimis argument, and thus did not need to reach a fair use analysis.
(3) The SOFA Entertainment v. Dodger Productions opinion came out March 11, 2013, and the 9th Circuit rather emphatically affirmed the district court’s finding that the seven-second clip at issue was fair use. The Jersey Boys musical used a clip from the Ed Sullivan show that SOFA owns the rights to without licensing it. The court was convinced that all four factors favored the defendant, due to its transformative use: “By using the clip for its biographical significance, Dodger has imbued it with new meaning and did so without usurping whatever demand there is for the original clip.” The court also remarked that due to the clip just being Ed Sullivan introducing the Four Seasons, it “is doubtful that the clip on its own qualifies for copyright protection,” later adding: “It is Sullivan’s charismatic personality that SOFA seeks to protect. Charisma, however, is not copyrightable.” The court also upheld the fee award that the district court had granted, particularly because SOFA should have known from losing as the plaintiff in another fair use case “that its chances of success in this case were slim to none,” ending its fair use analysis with: “This case is a good example of why the ‘fair use’ doctrine exists.”
With these cases in mind, we can consider the Vine platform, in particular these eight takedowns. In making and posting the Vines, Teibloom reproduced and distributed public performances of Prince’s copyrighted musical works, so it is clear that protected expression is at issue. The first argument to make would be saying that a six second clip is de minimis, when compared to the length of a Prince song played live at a Prince show. If a judge were to be unconvinced, then the fair use defense would be considered. I can’t do a fair use analysis on all of these particular clips because I have not seen them all, but I can mention some common themes, considering the one Vine that Teibloom had briefly reposted (link is now dead) for Mike Masnick to see, who then created a YouTube video that is still live on this Techdirt post. Masnick argued that all four of the fair use factors favored Teibloom, concluding: “we believe that Prince and NPG Records are abusing the DMCA, potentially in violation of 512(f), and using the DMCA to take down perfectly legitimate videos that are allowed under US copyright law.”
Several common fair use arguments would be particularly relevant in an analysis on this new medium. The Vine was transformative, as it had a different purpose than Prince’s public performance of that song. Prince’s performance was intended to entertain the concertgoers at the show with his music. In contrast, Teibloom recontextualized brief clips of Prince, along with shots of the crowd and himself, to try to document his personal experience of the concert for free for his Twitter and Vine followers. This practice is reminiscent in some ways of how documentary filmmakers create, a type of artist that often relies heavily on fair use in order to inform the public.
Additionally, it’s not clear what song Prince was playing (especially because it’s hard to hear from the clip), and how long that particular song was, although the song is likely to be considerably longer than six seconds. In addition, out of this six second clip, the majority of what is visible does not focus on Prince’s protected live performance. Teibloom displays two separate one-second clips of Prince on stage at a weird angle, two shots of the crowd, and one selfie-style close-up of Teibloom’s own face. The fraction of the work is not dispositive; rather, courts often consider whether the ‘heart of the work’ was taken. Given that it is not clear what song was playing, it is unlikely that this clip included the key recognizable hook, which weighs in favor of Teibloom.
Also, it would be challenging to argue that this low-resolution, six-second clip (in which it is not even clear what song is playing) is a substitute for seeing that Prince song performed live. You could hear approximately four words being sung, although unintelligibly; most of the sound was just noise from the background band. It is hard to imagine someone seeing that clip and deciding not to buy concert tickets to see Prince; if anything, it would function more as advertising, encouraging people to go see him.
However, the market at issue might not be the market for performances, but actually the market for samples. The Vine platform could hypothetically obtain compulsory licenses to use music in the background of Vines. This may make the argument more challenging, but courts have found that even when there is an established market for licensing, transformative uses (such as, arguably, the one at issue) constitute a different transformative market.
There are some fair use precedents in Teibloom’s favor. Teibloom could have filed a counter-notification alleging that his use was a non-infringing fair use. But he did not, and because of the way the DMCA takedown process works, his Vines are no longer available. The fact that he chose not to defend against Prince’s allegations does not mean that his Vines in fact constituted copyright infringement that did not qualify as fair use. If this case were to go to trial in the Ninth Circuit, for example, Newton v. Diamond might lead the court to find it de minimis, and SOFA v. Dodger might lead the court to find it transformative fair use. So to answer the question in the post’s title: It Depends.