Tuesday, September 20, 2016

Copyright Infringement in Virtual Reality

1.       Is there a copyright law difference between the Brittney Spears video and the Black Eyed Peas parody? What is the difference and how does it matter legally?

2.       Please discuss any claims for copyright infringement that either Brittney or the Black Eyed Peas could assert against YouTube for the videos. What are the remedies for either and what do you think the likely outcome is and why.

A stipulation shall be to bar the fact that both artists in this scenario have faced numerous accusations of copyright infringement over their commerical activities and that the actual ownership of the original works by the artists is tentative. (Max Martin wrote …Baby One More Time and David Guetta is credited with I Gotta Feeling.) It is also stipulated that Brittney Spears’ appearance on the Nickelodeon Kid’s Choice Awards is an original performace of her creation. Although this scenario is presented to discuss possible copyright infringement ramifications against YouTube and not the entities responsible for the published works, it should be noted that both MadTV and CollegeHumor, if subjected to copyright infringement proceedings, could argue any of the following defenses: Public Domain, First Sale Doctrine, or Fair Use Doctrine.

Copyright law, a protection established under the U.S. Constitution and afforded to Intellectual Property, establishes exclusive ownership over “original works of authorship” (qtd. Craig, 2013) as well as potential derivatives of those originals works. The traditional legal exception to this exclusiveness remains “the right of others to use part of the work…to parody or satirize the original work as such use…does not compete with the original” (Ocean State Lawyers for the Arts, n.d.). In addition to parody and satire, such undertakings also include, but are not limited to, rendering criticism, news reporting, as well as academic purposes.
MadTV’s imitative cover of Brittney Spears’ …Baby One More Time, reinterpreted as Make My Boobies One More Size, and CollegeHumor’s spinoff of Black Eyed Peas I Gotta Feeling both push the copyright infringement boundaries. However, MadTV produced a parody, simplistically defined as an act of legal defamation. Although the claim of parodic work is not an affirmative defense, it could still be argued that MadTV’s rendition does not create a “likehood of confusion” (Craig, 2013). CollegeHumor rendered a transformative product thereby establishing for themselves an affirmative defense under the Fair Use doctrine. Although both comical endeavors utilize every musical aspect other than the artists’ words (even using Brittney Spears image in MadTV’s work), both recreations separate themselves from the originals words so as to demonstrate legal defensibility as a retort to accusations of copyright infringement.
While it may seem understandable from an outside perspective, licensing, or attaining permission from the orignator, remains the particular proactive tool to alleviate the potential for being indemnified for copyright infringment. One need look no further then the commercial success of Weid Al Yankovic and his “music parodies produced pursuant to a license from the copyright holder” (qtd. Liebler, 2014). Conversely, his process has been argued as “justification to limit fair use” (Liebler, 2014).
Nevertheless, if either Brittney Spears or the Black Eyed Peas decided to pursue legal recourse against YouTube as a device protmoting copyright infringement they must first complete three actions, the first two of which are not legally mandated but are prerequisites for legal action: (1) establish copyright notice, (2) complete copyright registration, and (3) issue notice to YouTube (a process YouTube has well established on their site at https://support.google.com/youtube/answer/2807622?hl=en).
Assuming that all of the actions have taken place, and YouTube has not removed the subject material, the potential for plantiff loss remains high. YouTube has consistently found protection under the safe Harbor provision of the Digital Millennium Copyright Act of 1998. As recently as 2013, the court has ruled “a service provider must have actual knowledge or be willfully blind of “the specific locations of infringements” to lose the DMCA “safe harbor” from copyright infringement liability…Anything short of this is apparently insufficient to strip a service provider of its DMCA protection” (Lawhorn, 2013). Although YouTube has successfully continued to stave off any liabilty as a result of user copyright infringement, litigation continues to never be far from their front door (Ingham, 2016).

Reference List

Craig, B. (2013). Cyberlaw: The Law of the Internet and Information Technology. Boston: Pearson.
Ingham, T. (2016). YouTube Faces Superstar Backlash Over DMCA – But is it the Best Strategy? Retrieved from Musc Business Worldwide: http://www.musicbusinessworldwide.com/youtube-fight-steps-lady-gaga-sir-paul-mccartney-go-anti-dcma/
Lawhorn, J. M. (2013). YouTube Stays Safe under DMCA “Safe Harbor”. Retrieved from Cowan, Debaets, Abrahams & Sheppard LLP: http://cdas.com/youtube-stays-safe-under-dmca-safe-harbor-2/
Liebler, R. (2014). The Continuing Influence of Weird Al on Law, Especially Copyright Law. Retrieved from The Learned Fangirl: http://thelearnedfangirl.com/2014/07/the-continuing-influence-of-weird-al-on-law-especially-copyright-law/

Ocean State Lawyers for the Arts. (n.d.). Music Parody - Fair Use? Retrieved from OSLA Arts & Laws: www.artslaw.org/parody.htm

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