Your Mashup Is Probably Legal

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.

Why any attempt to define "Fair Use" is pointless

[elrous0]

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).

Re:Guitar Tab doesn't qualify as fair use because

[bickerdyke]

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:Words too?

[je ne sais quoi]

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]

Re:Guitar Tab doesn't qualify as fair use because

[Anonymous Coward]

so everything is dandy if the engineer told you how to replace the gasket and then you go and write down the procedure, in your own words?

Re:Legal, as long as you host it?

[actiondan]

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.

Re:Guitar Tab doesn't qualify as fair use because

[bitrex]

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.

Re:Guitar Tab doesn't qualify as fair use because

[trolltalk.com]

so everything is dandy if the engineer told you how to replace the gasket and then you go and write down the procedure, in your own words?

Absolutely.

Re:Size Matters?

[actiondan]

It's not so much the duration sampled as the use to which you are putting the content that's important.

Are you using the sample because it's a convenient way to get a nice sound (not fair use) or because the original work it came from is important to the meaning of your new work (possibly fair use)?

Re:Guitar Tab doesn't qualify as fair use because

[Rary]

...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.

Re:Oh oh, TFA leads to...

[Anonymous Coward]

Creating tablature of a song is *not* creating a new song, it's just making an unauthorized copy of a musical work. So it's straight-up infringement.

A copyright holder can have a copyright in (1) a musical work (in the abstract, the notes that make up the work), as well as in (2) a sound recording embodying the work.

If I make an unauthorized copy of an mp3 that is a song where a band is doing a cover song, I infringe on (1) the sound recording created by the cover band, AND simultaneously (2) the musical work created by the original author of the song.

In this case, a tab version of a song would infringe on the musical work created by the original author of the song, not the sound recording.

(IANAL yet: I just graduated from law school, and should really be studying for the bar right now rather than reading Slashdot.)

Re:Guitar Tab doesn't qualify as fair use because

[Hatta]

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.

Re:Words too?

[je ne sais quoi]

Don't get confused, this isn't the Drudge Report. This is the Drudge Retort, a big difference. Have a look at the previous slashdot story. [slashdot.org]

Re:Guitar Tab doesn't qualify as fair use because

[Knara]

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.