Saturday, August 29, 2009
A&E Goes To Court To Defend Fair Use Of 12 Second Clip Of Music
Techdirt: "A&E claims that it's fair use, since the music was being used in part as a news report would use it. The article compares it to both the recent case where John Lennon's Imagine was allowed in the movie Expelled without a license... but also to the infamous Bridgeport ruling that basically said fair use doesn't apply to music at all. Some will say that A&E's case is also weaker because it had approached the children of the songwriters (who now control the copyright) about a license, and then never got one, but that, alone, doesn't change the fair use calculation."
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7 comments:
While I am a big fan of fair use, but the fact that A&E failed to obtain a license and then used the song anyway shows that they are just trying to throw their weight around. What makes things a little spicy is the fact that it is an official state song and therefore it becomes an identifier with the area, which copyright law wouldn't acknowledge but I can see why it is so necessary for a documentary series.
I think that this a good thing that some one is stepping up to the plate saying that this can not go on any longer of people taking copyrighted things and no one caring about it. And this may be the begging of the end of people taking copy righted things.
I am of two minds on this issue. I personally believe A&E was fine to use that clip, especially since it was so applicable to the b-roll they were showing on-screen and to the show's locale. Additionally, it's only 12 seconds of the song! To the other point though, failing to obtain the license and then using the piece anyway was irresponsible and disrespectful to the children of the songwriters. A&E will lose this case, but they will learn a lesson about respecting the wishes of the copyright holders for their requested material.
It seems to me that this is probably fair use - it definitely didn't decrease the value of the original, and is a very small sample of a larger work. I worry that the doctrine of fair use is slowly getting washed away into the ocean, and while I hate to side with a broadcasting monster, I'm always glad to see somebody defending it.
Fair use is one of those issues where you can never please both sides. In this particular instance, I do think A&E had the right intentions in seeking the permission of the current license-holders, but going against their backs once they were denied permission was a low thing to do. However, given that they only used the short clip of music in a way that historically falls under the definition of fair use, it's hard to say what the outcome will be.
I really do believe that people should get fair credit and compensation for their work. I do understand the fair use argument however it seems clear that A&E had the intension to get the license and either couldn't or decided they no longer wanted to. I don't know how much of a fine A&E is looking at but it is hard to believe that they don't have the money. I think it would be better if A&E just paid for the use and doe not set a precedent for companies trying to get out of giving those who deserve payment money.
I am glad some one is fighting for fair use. There are too many people out there "Protecting" what is "theirs." I really feel over and done with copyrights etc. You put it out there and people are going to use it. Hopefully in the end, this will bring some more clarification to the gray area of fair use.
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