Fair Use Scenarios - Tunes and YouTube

In a continuing series of scenarios that explore educational fair use issues.

Sean*, classroom teacher and building leadership team member, created a video of a school planning retreat using Animoto and uploaded it to YouTube. For the soundtrack Sean used copyrighted popular music, a copy of which he legally owned. Soon after uploading the work, Sean received an e-mail from YouTube stating that his video had been flagged as containing copyrighted material. Youtube gave him three options:

• remove the video from YouTube immediately
• dispute the claim (using a provided link)
• leave the video up and allow the recording company to place ads on the page as well as track the public statistics of the video, such as number of views

The teacher decides to leave the video on YouTube.

1. What is the copyrighted material? Who owns it?
2. Does the use of the work fall under fair use guidelines? Is the use transformational in nature? Can this be considered "educational" use?
3. What is your level of comfort with this use? Are there any changes or limits you might like to see that would make you more comfortable?

Your level of comfort with this use of copyrighted materials: High 5 4 3 2 1 Low

You comments are most welcome.

*This scenario is based on an incident reported by Sean Nash of NashWorld in his post, "A Cooperative Resolution?" used here with his kind permission. Do read the original post (and subscribe ti Sean's blog).

The video can be seen here:

http://www.youtube.com/watch?v=BigU9WHPGfo

Comments

[Charlie A. Roy]

@Doug
I'm taking a stab that because the song is repurposed away from it's original intent there is no copy right infringement.

[Kurt Johnson]

My level of comfort for the YouTube posting would be very low. Why? because, although for a noble educational cause, the song is 1) going way beyond the standard guideline of up to 10% for educational purposes. 2) It is being changed from its original format, CD. 3) It is being redistributed beyond the 'classroom,' and made available to the general public. Just my thoughts. I would love to hear other opinions and/or agreements.

[Floyd Pentlin]

I don't have any problem with the fact that this is a violation of copyright. No matter how noble the purpose, the point is that there is a lot of creative commons music out there that could be used.

I think YouTube's offer to let it stand with a link to the recording company with the ad is a great compromise. The use of copyrighted music on the Web seems to me a far different issue than using it in a classroom.

[Doug Johnson]

Hi Charlie,

I am not sure if this qualifies as “transformative” use or not, but then fair use is about individual comfort levels, not following a specific set of laws. I would lose no sleep over this use personally.

Doug

Hi Kurt,

I agree with your observations. The bottom line I always ask is what is the impact on the commercial value of the material being used. My sense is that this use would improve, not decrease, the copyrighted item’s market. Still have to buy the song if you want the whole thing.

But it IS an interesting question.

Thanks for the comment,

Doug

Hi Floyd,

Good to hear from you!

Yeah, I am surprised that royalty-free and CC music isn’t used more for these purposes as well. Just a lack of knowledge such resources exist?

I liked YouTube’s compromise too. Seems a win-win to me.

All the best,

Doug

[Joan Tracy]

Better late than never. I see the Youtube compromise of leaving video up with ads and tracking acceptable. Still, when I make animotos , I use their playlist. There is usually a tune that works for the mood I want.

[Doug Johnson]

Hi Joan,

I thought the YouTube solution was pretty good too. And your suggestion make sense. Thanks for the comment.

Doug

[Trinity Christian College student]

We see no problem at all with how Sean handled youtube flaging the video. However, we wouldn't say it's an educationl or a transformational use of the copyrighted material.

[OH rats, mostly.]

Its not really a big deal, i have othe thangs to worry about.

[Trinity]

1.) The music is a copyrighted material, and is owned by the artist and producer.
2.) It does not follow fair use guidelines because he used more than 30 seconds of the music. It is not used as transformational, and it is not used for educational purposes.
3.) The level of comfort will fall on 3. You might want to get permission first, or atleast keep it within 30 seconds.