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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