- Dec 2, 2009
- Reaction score
- Never Neverland
I’m not an IP judge, but I agree that the reaction videos are in the wrong and Beato’s videos would fall under fair use due to their limited use of the copyrighted material for educational purposes.If this ever happens, owners should consider Ernie Ball strings and Fokin pickups.
Maybe this actually does deserve its own thread, but we probably already had one.
I suspect neither Youtube nor Beato fully understand Fair Use. I know that I don't, and I've spent a fair amount of time studying it. It's a lot more subtle and nuanced than other aspects of copyright law.
There are four major metrics for fair use:
1. How transformative is the work?
2. What is the nature of the information being reproduced?
3. What is the portion or amount of the material is being reproduced and how sustainable is the copy?
4. What is the effect on the original work's value?
Other factors can weigh in, too, but there are no hard benchmarks on any one category, since they are all taken together.
Now, on youtube, you have tons of "reaction" videos, where someone watches a movie, television programme, music video, etc., and reacts to it by periodically saying "oh shit," "damn," or "that is whack," and occasionally pausing the video, sometimes to explain how pausing the video makes it fair use. I don't think youtube considers this fair use, but rather just doesn't consider it at all. But it's definitely not fair use. Usually, the work is not serving any transformative function, is displaying video footage that has always been under copyright control, reproducing the entire work (plus pausing it for a few seconds to explain fair use makes no sense, because it doesn't take away any portion of the original work), the copy is uploaded to youtube forever, and the effect (probably intended) is that people can watch the reaction video instead of watching the original work.
This can, of course, be done much more professionally, by 1. adding some actual commentary, 2. only showing clips necessary to gauge the reaction, such that only a small portion of the original video is reproduced, and 3. providing additional behind-the-scenes information or production notes not included with the original work. I'm no legal expert, but, to my lay-understanding of fair use, reaction videos like the sort I initially described would not pass the legal tests, and reaction videos of the second sort very likely would.
Likewise, if you take a copyrighted song, rip the audio, rip the album art, paste them together in movie maker or youtube studio, and post a video, you are certainly infringing all sorts of copyright laws. On the other hand, if you are playing clips of the song to illustrate your criticism of the work, that's fair use. It's actually, in Beato's case, almost the textbook definition of fair use. Coming back to the four point precedent:
1. How transformative is the work? Well, watching Beato's video doesn't substitute listening to the song in any way. Beato offers tons of information about the song that the typical listener doesn't get from simply listening to it.
2. What is the nature of the information being reproduced? The clips he uses are definitely 100% copyrighted material. But there are also plenty of other bits of information from other sources, including public domain information inserted into the videos.
3. What portion of the material is being reproduced and how sustainable is the copy? He's taking clips. You don't hear the entire song. But there are lots of clips, so it's probably a large proportion. The copy is posted on youtube forever.
4. What is the effect on the original work's value? This is the biggest one for me - if anything, it makes people more likely to value the song. It's clear that the experience of listening to the song and watching Beato pick the song apart serve two completely different purposes, so one is no replacement for the other. People interested in what makes a song great probably already bought the song, but, if not, they are more likely to buy it after watching a ten minute video about why it's so great.
So, out of four points, WMTSG scores probably 3.5. We know from other cases that the tipping point is typically somewhere between 0.5-2.5, depending on how strict the judge is, and whether there are other circumstances taken into account or not, so I'd be pretty shocked if a real judge in a real court would find Beato guilty of copyright infringement with that series.
Personally, in the past I had posted some videos on youtube of myself covering copyrighted songs. Sometimes the entire song. I never used any parts of the original recordings, but the songs themselves were definitely copyrighted. At the time, I considered it transformative because I was playing my own take on it, you know, like not a direct copy cover but where I used the same lyrics and altered the genre of the song or drastically altered the style of the vocal delivery and altered the guitar parts. That's probably score more like a 1.0 out of 4 using our tests, so I was most likely in the wrong for doing that. But youtube only ever punished me for one of them, where I did an AC/DC song as a request from a subscriber. I think youtube was correct in their assessment; however, you and I and just about everyone else knows that this punishment wasn't so much because of any of the stuff I just explained. It was very very likely because my channel was growing just large enough to get on their radar, and AC/DC has a label that is very aggressive about youtube videos.
Such ended my super short youtube career, as my channel was demonetized and has remained such ever since (this was circa 2012). Probably if I had stuck with metal versions of obscure songs and obscure versions of (not as popular) metal songs, I would be raking in that sweet, sweet $40/month from being a mid-level youtuber. I kid, but only sorta...