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Your Mashup Is Probably Legal 149

Posted by timothy
from the oh-thank-you-2-live-crew-thank-you dept.
TV Barn writes "We've been conditioned to think that if you pull something off the web and use it, you're committing some sort of copyright infringement. But increasingly, the law is moving in the opposite direction. Provided you are making a truly new use of the content, you are free to make money off those copyrighted images and video and sound. On Monday the Center for Social Media released 'Code of Best Practices for Fair Use in Online Video,' which reflects the latest changes in copyright law that has expanded the understanding of fair use to include 'transformational effect.' Already Miro has endorsed the guidelines, as have several public broadcasters. The Center has a good track record, having issued guidelines for documentary filmmakers that have greatly reduced copyright claims in that area. The website has plenty of resources for mashers and mixers; I interviewed the Center's director in this podcast that summarizes the most important findings of the report." On the other hand, says reader kaliphonia, your guitar tablature sites may not fare so well.
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Your Mashup Is Probably Legal

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  • by elrous0 (869638) * on Tuesday July 08, 2008 @09:22AM (#24099005)
    You can try to define "Fair Use" all you want to. But any definition is utterly meaningless in the real world because your rights are entirely and completely dependent on a number of factors that have nothing to do with any attempt to define the term:
    1. The determination of the copyright owner to take you down (how far they're willing to go)
    2. The determination of your host to refuse their attempt (if you're on a site like Youtube that takes down videos at the slightest complaint, this is pretty much 0)
    3. Your determination and ability to defend yourself to your host and in court (i.e., do you have the financial resources and time to defend yourself and are you willing to do so?)
    4. The quality and disposition of the judge in the case
    5. Your ability to withstand additional harassment from the copyright owner even after the initial case (process can start over at this point, depending on the factor #1)

    The Church of Scientology, for example, is a copyright holder that is VERY determined (very high in the #1 factor). They have taken down MANY critiques that clearly fell well within any reasonable definition of "Fair Use." Go up against them and it won't matter what the "definition" of Fair Use is, they will still likely prevail in any real-world scenario (unless you are also VERY determined and VERY capable of defending yourself).

    • by Digital Vomit (891734) on Tuesday July 08, 2008 @10:14AM (#24099663) Homepage Journal

      Exactly. As long as the justice system remains a for-profit industry, you really have far fewer rights than you realize.

      That is, unless you are super-rich.

    • First, off, whether or not things are still bad, trending towards a broader definition of fair use is still good. Not only in-and-of-itself, but it provides another wedge to start undoing all the other bad stuff and overcoming the factors that lead to abuse.

      Second, let's not make the mistake of focusing too much on hosting and take downs. Maybe the RIAA can still force a take down of a mashup, but if the accepted law is that my copy of the Grey Album is legit, my iPod is less likely to be seized at the bord

    • by rgviza (1303161) on Tuesday July 08, 2008 @10:46AM (#24100129)

      I was about to say the same thing...

      IANAL, but have an entertainment attorney (since I am a publisher/engineer/producer in my spare time) who made a very important point:

      You can make fair use of content, just make sure you have the bank account to fight them when they take you to court. The golden rule applies. You can get sued for using a kick drum sample to make an original beat for a new song. Will you get sued for this?

      Depends...

      Would they win?

      Not if you can outlast them financially in court and have the better attorney who can prove that you are making "fair use" to whatever judge is on the case.

      It's a lot easier to pay $.99 to license the kick drum sample from a service that sells sound, as long as you keep your reciept:D

      -Viz

      • Re: (Score:3, Interesting)

        by tepples (727027)

        It's a lot easier to pay $.99 to license the kick drum sample from a service that sells sound, as long as you keep your reciept:D

        Can you recommend a few good sample libraries whose TOS doesn't conflict with releasing the end product under, say, the Free Art License, the Creative Commons Attribution License, or the Creative Commons Attribution-ShareAlike license?

    • Scientology has, IMO, pushed a little hard on the legal end.

      Their recent attempt to have Gawker Media remove an edited interview of Tom Cruise failed. Gawker's direct response was to cite fair use. See the thread on Gawker.com from January 15th: "Tom Cruise Indoctrination Video [gawker.com]." There are follow-ups on Chilling Effects for the Cease and Desist Letter [chillingeffects.org]. Gawker's response to it...etc. etc. Basically, you can still see the thing.

      Then some people on 4chan seem to have started the whole Anonymous protests as a direct result of Scientology's attempts to silence Gawker. Those protests have waned recently, but were a definite sign that people do notice this stuff and take it seriously.

      The definition of Fair Use is a legal one; yes, the pocketbook factor will always limit the direct legal rights you theoretically have, but if you can get a million people in masks out into the streets....

    • by badasscat (563442)

      You can try to define "Fair Use" all you want to. But any definition is utterly meaningless in the real world because your rights are entirely and completely dependent on a number of factors that have nothing to do with any attempt to define the term

      Exactly - and the article summary is wrong about the law "moving increasingly in the opposite direction". The law hasn't moved at all. Copyright law is what it is and the last real update to it was the DMCA what, ten or more years ago now? There are several b

      • It's the judges' interpretation of the law that is moving - and since the ultimate conclusion of a legal battle is down to the judges' discretion, 'fair use' is an increasingly important concept.

        .

  • Alright! (Score:5, Funny)

    by Anonymous Coward on Tuesday July 08, 2008 @09:29AM (#24099093)
    So my Mickey Mouse / Prince hentei slash rape movie set in the Palladium universe using music from Metallica is perfectly legal. Sweet. Intertube fame, here I come!
  • Words too? (Score:4, Interesting)

    by pzs (857406) on Tuesday July 08, 2008 @09:31AM (#24099117)

    Does this also apply if you want to use three consecutive characters from an associated press [cadenhead.org] story?

    • Re:Words too? (Score:5, Informative)

      by je ne sais quoi (987177) on Tuesday July 08, 2008 @10:01AM (#24099525)
      As far I can tell, the AP hasn't removed their takedown notices, but according to the guy who runs the blog, one of their VPs is putting on a damage control PR campaign. link [cadenhead.org] Legally, it doesn't seem they have much of a foot to stand on and they seem to know it:

      It doesn't appear, however, that AP is continuing to pursue its "hot news" claim against Drudge Retort, and for good reason. ... in National Basketball Ass'n v. Motorola, 105 F.3d 841, 844 (1997), one of the few cases to address a "hot news" claim, the Second Circuit set an exceptionally high standard for such claims to be viable, requiring, among other things, that the information be time-sensitive; the defendant be in direct competition with the plaintiff; and the continued publishing of the "hot news" would so reduce the plaintiff's incentive to produce the product or service that its existence or quality would be substantially threatened.

      source. [citmedialaw.org]

  • by sm62704 (957197) on Tuesday July 08, 2008 @09:35AM (#24099163) Journal

    a law school. It would have been nice to know why tab sites aren't covered under fair use. From my admittedly ignorant reading of the pdf (IANAL so I am in fact ignorant) it looks like the article says exactly the opposite of what TFS says.

    I know that often the law makes little or no sense, but after all, unless the tablature has been written down then your putting it on paper (or computer screen) is a new work.

    Can someone help alleviate my ignorance here?

    • Re: (Score:3, Interesting)

      by actiondan (445169)

      Fair use applies to creative reuse of content.

      Transforming content from one form to another is not necessarily considered creative. In the case of guitar tabs, I guess it isn't.

      If you painted a canvas that included graphic representations of the tabs for a song and the use of those specific tabs had some connection with the theme of the painting that was important to the meaning of the overall piece, I would guess that fair use would come into play.

      • by gknoy (899301)

        Okay, so you create a game where the guitar tabs (or some analogue) is a central mechanic to the game. Some game not overtly guitar-related (so, I don't mean Guitar Hero). Or a sketch of improv comedy, who knows. In some way, the audience would need to be able to know how to convert what they'd just seen (or played) back into guitar tabs, but at the core would still be a new creative performance.

        I suspect this might be an end-run around it, similar to how printing source code (in book form) for encryptio

    • unless the tablature has been written down then your putting it on paper (or computer screen) is a new work.

      Can someone help alleviate my ignorance here?

      Surely a transcription of music from a phonorecording to a tablature sheet is not a new work, but a derivative one? It is the content, not the medium, which matters.

      • The tabulature is infringing on the music publisher's copyrights. It is exactly the medium that matters, as someone (sometimes the artist, usually a music publisher) holds rights to make written representations of the music, and it's not the author of the tab.

      • by techpawn (969834)

        It is the content, not the medium, which matters.

        That's why an mp3 from an CD is not covered but a new song created by someone sampling pieces off of a cd would....
        Where's my Drum machine

    • it looks like the article says exactly the opposite of what TFS says.

      That's been known to happen occasionally round here.

    • by mea37 (1201159) on Tuesday July 08, 2008 @10:42AM (#24100069)

      "unless the tablature has been written down then your putting it on paper (or computer screen) is a new work"

      Probably not. It's a new representation of an old work. Copyright isn't attached to a specific representation of a work (though I believe it does require that the work be fixed in some tangible representation).

      Fair use is pretty much inherantly a murky area of copyright law. The actual language in the law just sets a list of criteria to be weighed. It doesn't say how to weigh them, except that it says that none of the criteria alone is controlling. The introduction to TFA notes that this is a guide to interpret the law based on experience and opinion, but "This code of best practices does not tell you the limits of fair use rights." So it is very possible for two identical cases to be resolved in contradiction to one another.

      The argument with mashups seems to be that the addition of new creative content justifies the use. There will always be a blurry line there. (If I juxtapose two copyrighted works and add nothing else, but the juxtaposition is itself meaningful, is that fair use? Who decides if it is meaningful, or if I'm just dodging copyright by slamming two works side by side?) The guidelines in TFA seem to acknowledge this, and are not nearly as one-sided as the slashdot headline/summary suggest. (Surprise, surprise.)

      But when you transcribe tab, you're not adding any new content. You're just translating from one form to another. The translation process may be difficult and require skill, but it's still not a creative process. I'd like to think tab sites were legal; I used to use them quite a bit myself. But realistically, I can't see how they would be.

      • But when you transcribe tab, you're not adding any new content. You're just translating from one form to another. The translation process may be difficult and require skill, but it's still not a creative process. I'd like to think tab sites were legal; I used to use them quite a bit myself. But realistically, I can't see how they would be.

        Depends on the tab. A tab can be a faithful reproduction of the song, or it can be an interpretation of the song. I think the latter has a better chance of being "fair use" than the former.

        • by mea37 (1201159)

          In that there are "legal fake books" full of notation for slightly-altered songs, where the original is copyrighted, you may have a point.

          Of course, that just creates another blurry line -- What really is the difference between a low-fidellity copy (which is not protected) vs. an "interpretation" or other slightly-different-but-similar work? Maybe it comes down to intent...

          But when it comes to tab sites as a whole (at least the ones I've ever seen), I'd stand by my previous analysis. Most if not all of th

          • Re: (Score:3, Interesting)

            by torkus (1133985)

            I'm half playin devil's advocate here...so take that into consideration.

            One could consider tab to be a description of music. After all, you can't listen to tab directly and get the actual music. I'd compare it to a sportscaster giving a blow-by-blow of a hockey game. If the recording of the game was copyright does that mean a sportscaster needs specific permission to describe the game step-by-step? Yes, I know they work for the arena and are hired to do their job but that's besides the point. What if j

            • by tepples (727027)

              After all, you can't listen to tab directly and get the actual music

              OCR the tab to MIDI, and you can listen to it.

              If the recording of the game was copyright does that mean a sportscaster needs specific permission to describe the game step-by-step?

              Not only the recording is copyrighted. The underlying musical work is also copyrighted.

              What if joe-neighbor watched the game and posted a blog online of step-by-step action after the fact?

              How long after the fact?

              • by torkus (1133985)

                tab is not a complete documentation of a song in almost all cases and almost ever includes the timing. You can not OCR it to MIDI and expect to actually hear the song. It's a rough description of a song that requires interpretation by a skilled musician with the original recording available for guidance. Simply put, you can't take hendrix, lock him in a room with the tab for some recent metallica song and expect him to come up with something more than vaugely familiar. In fact, doing so would probably m

                • tab is not a complete documentation of a song in almost all cases and almost ever includes the timing.

                  I've seen tabs that use the spacing between notes to indicate rough timing. PC tabs are generally shown in a monospace font, and in many cases, the width of each character's glyph represents the duration of an eighth note or a sixteenth note.

                  you can't take hendrix, lock him in a room with the tab for some recent metallica song and expect him to come up with something more than vaugely familiar.

                  "Vaguely familiar" can go far to establish substantial similarity, especially if other facts of the case show intent to reproduce.

                  How long after the fact is irrelevant unless the time exceeds the copyright.

                  I'll grant that. But it is relevant for statutory and case law forbidding the misappropriation of "hot news". See, for example, INS v. AP [wikipedia.org]

            • by mea37 (1201159)

              The analogy to sportscasting breaks down because the game itself (events that occured; raw facts) is not protected by copyright. The broadcast is protected (and the broadcaster will be sure to over-state its rights, including trying to imply that an amateur play-by-play would require permission), but a play-by-play isn't a representation of the (protected) broadcast -- it's a representation of the (not protected) game (which happens to also be depicted by the broadcast). Of course, as the reason the broad

            • by game kid (805301)

              I'd compare it to a sportscaster giving a blow-by-blow of a hockey game. If the recording of the game was copyright does that mean a sportscaster needs specific permission to describe the game step-by-step? Yes, I know they work for the arena and are hired to do their job but that's besides the point. What if joe-neighbor watched the game and posted a blog online of step-by-step action after the fact?

              Often I'll watch a game (basketball, football, hockey, whatever) in the US and I'll hear someone saying roug

              • by torkus (1133985)

                Yes, I love how they claim copyright over descriptions of the game (in whole or in part) - this was a discussion previously. The point was made that, according to their overstated claim, telling you buddy the score of a game is infringement. It's a description of part of the game after all.

                If nothing else, we need reform on companies claiming rights they don't have. That, or a less stupid general public with a LOT less government regulation of stupid things.

  • Step 5! (Score:5, Insightful)

    by muellerr1 (868578) on Tuesday July 08, 2008 @09:38AM (#24099215) Homepage
    FTA:

    FOUR: Reproducing, reposting, or quoting in order to memorialize, preserve, or rescue an experience, an event, or a cultural phenomenon
    FIVE: Copying, reposting, and recirculating a work or part of a work for purposes of launching a discussion

    Somebody post a copy of Windows XP: I want to memorialize and preserve it, and I'd like to launch a discussion about how MS should continue to sell and support XP.

    I guess what I'm saying is, as nice as these Fair Use guidelines are, they're only as good as the lawyers that fight for them and the deep pockets that will fund them.

    • I guess what I'm saying is, as nice as these Fair Use guidelines are, they're only as good as the lawyers that fight for them and the deep pockets that will fund them.

      Quite right. And don't forget also: only as good as the judges before whom the cases are presented.

    • Re:Step 5! (Score:5, Insightful)

      by Darkness404 (1287218) on Tuesday July 08, 2008 @10:31AM (#24099899)
      Exactly, or ROMs for old systems that the companies have either gone broke or they aren't making any money off of them. The difference though is, it is becoming increasingly not, "is this legal" but rather "does anyone care?".
    • Somebody post a copy of Windows XP: I want to memorialize and preserve it, and I'd like to launch a discussion about how MS should continue to sell and support XP.

      I guess what I'm saying is, as nice as these Fair Use guidelines are, they're only as good as the lawyers that fight for them and the deep pockets that will fund them.

      The part you are missing is the limiations. From teh TFA:
      Fair use reaches its limits when the entertainment content is reproduced in amounts that are disproportionate to purposes of documentation, or in the case of archiving, when the material is readily available from authorized sources.

      If you post full copy of XP, you are clearly violating the limitations. An overriding theme of teh guidelines is to copy enough of the original content (and cite it) to make your point.

      Also, there are better ways t

      • From teh TFA: "Fair use reaches its limits [...] when the material is readily available from authorized sources.

        If you post full copy of XP, you are clearly violating the limitations.

        Windows XP is out of print as of a week ago. So is it as "readily available from authorized sources" as you thought?

        • Windows XP is out of print as of a week ago. So is it as "readily available from authorized sources" as you thought?

          Yes. There are still plenty in the pipeline.

  • by antifoidulus (807088) on Tuesday July 08, 2008 @09:43AM (#24099255) Homepage Journal
    is legal now?
  • by Zero__Kelvin (151819) on Tuesday July 08, 2008 @09:43AM (#24099271) Homepage
    You cannot apply fair use to something that has never been copyrighted. Claiming that a song is copyrighted, and therefore any tablature is copyrighted is absurd. First of all, you would have to charge almost every band that ever existed with copyright violation, since 99% of the live band music played on any given day is what we musicians call a cover song [wikipedia.org] .

    Either the entire music industry is illegal by definition, or replicating/mimicking a musicians work is not illegal. There is no such thing as a musician who has never played another musicians music.

    The sole exception here would be that if someone scanned pages from Guitar Player magazine or some similiar magazine, and then posted the scan on the web, that would be a copyright violation.

    And of course, we need a car analogy: Imagine if Ford tried to claim that any instructions explaining how to replace a gasket in their cars manifold was a copyright violation of their manuals.
    • And of course, we need a car analogy: Imagine if Ford tried to claim that any instructions explaining how to replace a gasket in their cars manifold was a copyright violation of their manuals.

      The instructions themselves aren't, but the format and actual text are. You can't just copy it word-for-word. In other words, while the facts aren't copyrighted, their organization and expression in a fixed medium (the shop manual) is.

      • Re: (Score:2, Insightful)

        by vaz01 (1206962)

        You can't just copy it word-for-word. In other words, while the facts aren't copyrighted, their organization and expression in a fixed medium (the shop manual) is.

        So shouldn't the fact that most of these (usually user-submitted) tabs on most tabs sites are either greatly simplified or completely wrong be their saving grace? I'd call it paraphrasing the work at best.

    • by bickerdyke (670000) on Tuesday July 08, 2008 @09:55AM (#24099417)

      Claiming that a song is copyrighted, and therefore any tablature is copyrighted is absurd. First of all, you would have to charge almost every band that ever existed with copyright violation, since 99% of the live band music played on any given day is what we musicians call a cover song [wikipedia.org] .

      And thats what performing bands are paying royality fees for.

      • Re: (Score:3, Insightful)

        by Zero__Kelvin (151819)

        "And thats what performing bands are paying royality fees for."

        Which would be "informative", if not for the fact that performing bands are doing no such thing. If you don't believe me, go to your local night clubs and talk up any of the performers. Ask them who they pay royalties. They will look at you like you have three heads.

        • I can only speak vor the situation over here (Germany). I know people in a few bands, and while several of them got away with not knowing about it, some others wish they had payed royalities, as that would have been cheaper than paying the 'fine' afterwards. (more a back payment based on a worst-case-scenario than a proper fine, but nothing you'd want to argue about) As those royalities only apply to "Public Performances" it's often up to the owner of the concert venue as the organizer of the event to take
        • by Hatta (162192) on Tuesday July 08, 2008 @11:45AM (#24101071) Journal

          Usually the house pays the fees. Go to your local night clubs and ask the manager who he pays royalties. If he looks at you like you have three heads, you could probably make some money turning them in.

          • "Usually the house pays the fees. Go to your local night clubs and ask the manager who he pays royalties. If he looks at you like you have three heads, you could probably make some money turning them in."

            Alas, you have cited the biggest non-sequitur bandied about in regards to this issue. You see, just because someone pays fees, does not validate a claim that such a payment is legally required . Clubs pay extorsion fees all of the time. Some of those extorsion fees are paid in the form of "royalities."

            U

            • Yeah, that's right, it's "protection money" to ASCAP. Protection from being sued by them that is. I play at a celtic session once a month at a local tavern and the ASCAP assholes even showed up there trying to make the manager pay royalties for us playing there. The songs we play are traditional songs that sometimes date back to the middle ages, there's no copyright on them, they're in the public domain. Secondly, we don't even perform for the bar, we're off in a side room, we don't make any money and n
            • by Rary (566291)

              Under fair use, no such payment is required.

              Oh, really? Point out the part of the fair use doctrine that allows performance of someone else's songs wherever and whenever you please. Here's the actual law [copyright.gov] (I'll assume you're in the U.S.).

              I sometimes play various songs at my family and friends homes, yet nobody pays "royalties".

              That is not a public performance. You can do that all you want without paying royalties, as no copyright holder (not even the RIAA) would ever come after you for that.

              People play songs at train stations, etc. with legal permits, yet they are not required to pay royalties.

              Actually, they are technically required to pay royalties if they're performing covers. The RIAA hasn't started going after them yet, so don't give them

              • by Hatta (162192)

                It is not extortion. You don't have to pay it. If you choose to break the law (ie. perform a song that you don't have the legal right to perform), then you may face consequences. That's reality. If you want to avoid the consequences, don't break the law (ie. either pay the appropriate licensing fee, or just don't perform the song).

                Protection money is not extortion. You don't have to pay it. If you choose to disobey the mafia, then you may face consequences. If you want to avoid the consequences, don't di

                • by Rary (566291)

                  Protection money is not extortion. You don't have to pay it. If you choose to disobey the mafia, then you may face consequences. If you want to avoid the consequences, don't disobey the mafia.

                  Murder laws are not extortion. You don't have to obey them. If you choose to disobey the law, then you may face consequences. If you want to avoid the consequences, don't disobey the law.

                  Pain experienced as a result of putting your hand in a fireplace is not extortion. You don't have to avoid putting your hand in a fireplace. If you choose to put your hand in a fireplace, then you may face the consequences. If you want to avoid the consequences, don't put your hand in a fireplace.

                  Not everything with consequ

                  • by Hatta (162192)

                    Murder laws are not extortion.

                    Why not? If you consider "not killing someone" to be a service, then the use of threats to obtain that service can definately be seen as extortion. Extortion is not as bad as muder though, so we choose the lesser of two evils.

                    However, in the case of PROs, you have the option to pay up if you want to legally perform the song. Your choices are to pay up in order to legally perform the song, or break the law and face the legal consequences, or don't perform the song at all (note

            • Re: (Score:3, Informative)

              by Knara (9377)

              While you are correct in that many venues do not pay the ASCAP public performance fee, you would be mistaken if you think that ASCAP doesn't pay attention to which venues that pull in big revenues aren't paying that fee.

              ASCAP's position on the whole thing. [ascap.com]

              By and large, the fee is affordable for most non-dive venues, and gets paid as a matter of doing business.

        • And thats what performing bands are paying royality fees for.

          Which would be "informative", if not for the fact that performing bands are doing no such thing. If you don't believe me, go to your local night clubs

          Which, for a lot of people affected by these rules, would involve waiting several years to become 21 in order to gain entry to these clubs.

          and talk up any of the performers. Ask them who they pay royalties. They will look at you like you have three heads.

          Or ask the club's owner if he is paying royalties to BMI or ASCAP or SESAC on behalf of the bands.

          • "Or ask the club's owner if he is paying royalties to BMI or ASCAP or SESAC on behalf of the bands."

            Instead, I asked a local club owner if he was paying fees to the mafia. He indicated that he was. I was very surprised to find out that clubs are legally obligated to pay extortion fees to the mafia!

    • by bitrex (859228) on Tuesday July 08, 2008 @10:18AM (#24099711)
      It is legal for a live band to perform cover songs at a venue if the copyright holders of the music are members of ASCAP/BMI, and the venue pays its yearly royalties to those organizations.
    • by Rary (566291) on Tuesday July 08, 2008 @10:21AM (#24099761)

      ...since 99% of the live band music played on any given day is what we musicians call a cover song.

      And that's why the club in which the band is playing pays licensing fees to a Performing Rights Organization, and those fees transform into royalties for the holders of the copyrights on the songs played, assuming the band reports their set list to the PRO, which they should, as they will also get paid royalties for playing their own songs.

      By the way, if a band is recording a cover song, they first have to pay to get a license for the mechanical rights to the song.

      Nevertheless, copyright on tablature is an interesting problem. There's no doubt that music is protected by copyright the moment it is recorded. Transferring that music to a different medium (ex. CD to tape) is an infringement of copyright. But what about transferring it to a completely different medium (ex. CD to paper in the form of tablature)? Does that really constitute a copyright violation?

      Well, actually, thanks to the reality of publishing rights, it does constitute a copyright violation. Basically, the law attempts to make it possible for musicians to make money selling their music in other forms, such as releasing books of tablature.

      Personally, if a website posted tablature of my songs, I wouldn't be at all concerned. Same goes for lyrics. But, then again, I also wouldn't be too concerned over MP3s of the actual songs being distributed. So I guess I'm a little more easy-going on the copyright issue than a lot of other musicians are. My preference is to put all songs, lyrics, and tablature on the band's website so no one needs to go looking for it anywhere else.

      • by HTH NE1 (675604)

        By the way, if a band is recording a cover song, they first have to pay to get a license for the mechanical rights to the song.

        So if they don't have mechanical rights, they can't record it. So the performance of that cover is not fixed by them in a tangible medium, and copyright over that particular performance won't exist. But if I were to record it, I'd be fixing it in tangible medium. The copyright of the performance may belong to me, but then I could be sued for not having the mechanical rights to make the recording?

        Sounds like these licensed mechanical rights mandate a public domain that no one can exploit and the extinguishin

        • by Rary (566291)

          So if they don't have mechanical rights, they can't record it.

          I should have been more clear. They can record it, they just can't legally sell it. If they do, they'd be doing so in violation of copyright and could be sued. The recording would still physically exist, as well as all rights to it.

          So the performance of that cover is not fixed by them in a tangible medium, and copyright over that particular performance won't exist.

          Are you talking about performance now, rather than recording? Because that's a different situation. Recording involves mechanical rights. Performance involves performing rights. Failing to pay for mechanical rights has no bearing on performing rights.

          The copyright of the performance may belong to me, but then I could be sued for not having the mechanical rights to make the recording?

          I'm not sure how to approach

          • That they can still record to establish copyright but not have license to distribute settles my question, regardless of any confusion on my part between mechanical and performance rights.

            However, you misunderstand the signature.

            A work does not "expire" before its copyright.

            I mean "expire" in the sense that it ceases to exist in any tangible form. The tray liners at Burger King enjoy the same duration of copyright as any other copyrighted work, yet the medium in which they are fixed is not durable for that duration and extremely unlikely to have special

            • by Rary (566291)

              I mean "expire" in the sense that it ceases to exist in any tangible form. The tray liners at Burger King enjoy the same duration of copyright as any other copyrighted work, yet the medium in which they are fixed is not durable for that duration and extremely unlikely to have special action undertaken to preserve them.

              The tray liner at Burger King is not subject to copyright law. If there is artwork or text on the tray liner, that can be protected by copyright. Destroying the tray liner does not destroy the thing that is being copyrighted, it merely destroys the medium on which a particular copy is stored (copyright is, in its simplest definition, all about the right to make copies). You have destroyed the medium containing a copy of the work that copyright protects, not the work itself. The work continues to exist.

              Works

        • by rhizome (115711)

          So if they don't have mechanical rights, they can't record it.

          Which does not happen because mechanical licenses are compulsory, meaning they have to grant permission to everybody in exchange for royalty payments. The scale of the royalty is set by law and changes every so often. This is indeed a cutout in copyright law, but to combat inefficiencies of excludability and transferability in the market for cover songs. These versions can be sold.

    • You cannot apply fair use to something that has never been copyrighted. Claiming that a song is copyrighted, and therefore any tablature is copyrighted is absurd.

      Only if you don't understand how the copyright system works. (Many people do not, which may suggest that the system is poor.)

      As soon as a creative work, such as a song, it brought into existence, it is subject to copyright. The creator gets to decide who may make copies of the work, including printed musical notation that represents the content o

    • Tab is covered by copyright because the song composer owns the copyright on the specifc arrangement of notes represented by the tablature.

      As to cover tunes, they, too, are covered by copyright (as is any music used in performance settings)--a performance copyright. If you buy some of the large and extremely expensive books of cover tunes, they often include limited performance rights (thus the tremendous cost). One of the reasons a lot of coffee shops have dropped or altered their musical programs is that lawsuits were threatened over local musicians who came in and played well-known tunes without having first secured performance copyright permissions. Of all copyright law, that's one to which I can best relate, since I am a songwriter when not bogged down as a sysadmin. Other musicians should not be able to take and use my songs (and make money doing so) without fair compensation to me (I manage my own copyrights, and do not require rediculous licensing fees for their use). Let them either pay a reasonable amount to use a piece in their performance, or let them write their own music.

      Now, for mashups, people should be allowed some use of protected pieces, provided that economic gain is not the primary purpose of the mashup. If someone wants to put together snippets of their 10 favorite Devo songs while displaying a collage of abstract watercolor paintings, let it be. Now, if someone wants to do the same and sell the resultant media on a late-night television infomercial, then let them pony up some licensing cash (or revenue sharing).
      • by Knara (9377)

        Tab is covered by copyright because the song composer owns the copyright on the specifc arrangement of notes represented by the tablature.

        Well, the song is covered by copyright. However, if I just listen to the song and then write down what I think the song composition is, I don't see how this is any different than a cleanroom reverse engineering of any black box.

        And yes, I am a musician.

  • but... (Score:5, Funny)

    by owlnation (858981) on Tuesday July 08, 2008 @09:46AM (#24099295)

    "Your Mashup Is Probably Legal"

    However, if you use the word "mashup" you're probably a jerk.

    • "Your Mashup Is Probably Legal"

      However, if you use the word "mashup" you're probably a jerk.

      Hmm... I guess I'd better find a new way to prepare potatoes if I want to preserve my social status...

  • The thing with mashups is that they often break the revenue model of the folks providing the content. Stripping ads and/or using content without "signing up" for things is sometimes like demanding value for free. So go ahead and make a mashup of the user interface-- just host it yourself and use your own database.

    • Re: (Score:2, Informative)

      by actiondan (445169)

      I think TFA is referring to mashups in sense of music and video content combined in creative ways, rather than in the sense of software systems that pull data from other systems and combine them.

  • by Hemogoblin (982564) on Tuesday July 08, 2008 @09:57AM (#24099461)

    if you pull something off the web and use it, you're committing some sort of copyright infringement.... But increasingly, the law is moving in the opposite direction.

    I know the site is USA-centric, but it's probably a good idea to specify the country in the summary. The above blanket statement is obviously not true, since, for example, the Canadian government just introduced DMCA-style legislation that would remove a lot of fair use. I'm certainly not as optimistic as the submitter.

  • by yuna49 (905461) on Tuesday July 08, 2008 @10:29AM (#24099871)

    While I admire the effort these academics have invested in this document, it might have more clout if there were a few names from the content industries on the list. Their interpretations seem reasonable on the face of it, but I wonder if Viacom's or Elektra's attorneys would agree with their views.

    I note that they make the point repeatedly about how fair use requires a transformation of the copyrighted material being used, and that the use of entire works generally has less protection than excerpts. Still I don't think I came away knowing whether making a music video from a complete song would qualify as fair use or not. On the one hand, the original work might be "transformed" by adding the video component, but the song itself was still used in its entirety. A mix of different video clips backed up with excerpts from a variety of different songs probably has a better chance at a fair-use defense.

  • by Xtense (1075847) <`xtense' `at' `o2.pl'> on Tuesday July 08, 2008 @10:33AM (#24099913) Homepage
    So how this affects the legality of AMVs [wikipedia.org] or collections of 30sec or less shorts [amvhell.com] in their style? The latter case is of particular interest to me, since I've made [pouet.net] one, uploaded it to Youtube and it got deleted "by request of the music publisher". After that I lived in a bit of insecurity that my efforts at some demoscene-oriented jokes will be the financial death of me.

    (Though admittedly, it was a bit crap, so I see reason in there ;) )
    • Re: (Score:2, Interesting)

      Remember that YouTube is a private company. They can remove content at their discretion whether it is fair use or not.
    • Re: (Score:2, Interesting)

      I have also had some of my AMVs removed or restricted by YouTube.

      Although AMVs probably constitute fair use, it's a moot point in the case of YouTube because they (not you) are making money from hosting your clip, so they (not you) are legally vulnerable if the original copyright holder comes knocking. This is why their TOS stipulates that YOU must own the copyright to all the material you post.

      Fortunately most anime publishers recognise AMVs as free advertising, and leave it alone.

      • by yuna49 (905461)

        The take-down actions against AMVs have mostly been initiated by the Japanese music rights holders, not the anime studios. The original request [guardian.co.uk] to remove 30,000 AMVs from YouTube ih 2006 came from the Japanese Society for Rights of Authors, Composers and Publishers (JASRAC).

        YouTube/Google don't really have much say in the matter; they simply have to follow the take-down provisions of the Digital Millenium Copyright Act. If you wished to contest their decision, you could have filed a counter-notice [chillingeffects.org]. That

  • Only one thing is impossible for God: To find any sense in any copyright law on the planet.

  • What is the deal with guitar tabs? It was always been my understanding that if you're just learning to play it, making no money off of it, then that's fair use. If you're playing it in the a club or coffehouse setting, isn't it the responsibility of the venue to pay for licensing? I really don't get it - is it the fact that the people posting the tabs might be making money off them?
  • Provided you are making a truly new use of the content, you are free to make money off those copyrighted images and video and sound.

    This is the way the law has ALWAYS been. Copyright law is meant to protect your originality. This is why parodies are allowed, it's the thought that the parody can be as original and artistic what it's making fun of. If you create something unique then it's yours, the part where it gets messy is when you take something and call it unique when it really cant stand on its o
  • by pjrc (134994) <paul@pjrc.com> on Tuesday July 08, 2008 @03:08PM (#24104269) Homepage Journal

    The commonly used language "make money off..." (as the post was written) implies a sort of behavior of taking advantage, some sort of magical money-making simply by having/using/exploiting some particular thing.

    Absent is the notion of making a genuine creative effort. Absent is the additional value created. Particularly absent in "make money off..." is the work of marketing and selling the product or service to customers/clients who are happy to pay for the value you've added that they desire.

    Sure, there's plenty of much worse crap every day in slashdot "articles", but the phrase "make money off" applied to actual, genuine, bona-fide creative effort to make and market something valuable.... I just wish a better phase could be used.

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