AMVs as fair use

[quadir]

The Electronic Frontier Foundation recently put out a test suite for fair use. The idea is that all the videos listed (11, 2 of them AMVs) constitute fair use, and should not be automatically rejected from video hosting sites like imeem.

AMV example 1:

Audio track is an exact match for an existing work, but the video track is from many different works.

AMV example 2:
Video: This Kiss
Link: http://youtube.com/watch?v=koIu90qzWJ8
Anime: Sailor Moon
Song: This Kiss
Artist: Faith Hill
Creator: SVEvenstar

A third reason why an exact match for the audio track, by itself, does not rule out fair use.

This discussion comes up once in awhile, but in light of eff's argument that the amv, audio and video together, constitutes fair use because one of the two could be considered such, is a good opportunity to start up conversation again.

And please, if you're going to start analyzing or quoting laws, please make sure you provide a link to the law or an article discussing the law, and the country in which it applies.

[Zarxrax]

VERY interesting. In light of this information, AMVs may actually be more legal than many of us have long thought. Of course, thats still just conjecture.

[quadir]

If there is a legal case for making at least the video portion of AMVs fair use, then it would be easy to make a legal AMV, as there is now a large body of cc music.

This video is an example that uses music legally. And if the video is fair use...

Thinking of both together as constituting a changed work however, wow. I hadn't actually thought you could even try to argue that.

[Serv0]

Before anyone furthers discussion on AMVs for fair use, it's probably best if everyone here understands the basics on the definition of fair use.

NOTE: 'Fair use' applies within the boundaries of United States copyright law. The application and relevancy of 'fair use' to an international medium, such as the Internet, holds its own debate and can be brought up in following discussions.

ALSO NOTE: The 'fair use' being addressed in this forum is the doctrine of United States copyright law, and not the 'fair use' of United States trademark law. Both have the same names, but the doctrines hold different meanings.


'Fair use,' works under a four-factor balancing system incorporated in the Copyright Act of 1976, 17 U.S.C. § 107, and is reprinted here as:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

In terms of the status quo of AMVs, the videos apply to all four factors upon publication to IP hosts such as Animemusicvideos.org.

Now to the discussion:
Quadir, I understand that the Electronic Frontier Foundation is a non-profit advocacy and is known for defending issues against the courts. It's nice to know that there are advocates out there who are willing to support us in the work that we do, but is this topic brought up to bring up discussion on:
1) The fact that there is a pillow protecting us against a copyright issue?
or
2) The discussion of fair use itself and how it applies and affects AMVs as they are right now?

[quadir]

Also of note is Fair Dealing, which applies to the EU and Canada.
http://en.wikipedia.org/wiki/Fair_dealing

Also, in Canada sharing copyrighted music is currently arguably legal based on the p2p tax on media. http://www.hour.ca/news/news.aspx?iIDArticle=2819

So for this discussion I think it's better to examine if amvs are fair use/dealing under copyright, as the eff claims. And does this apply just to the video or does it encompass the complete work put together?

[shumira_chan]

I don't really think that the legality argument will ever be resolved.
In the end the deeper pockets win.

I think, however, that the important thing is that maybe, just maybe,
someday it won't matter anymore.

There's a lot of discussion about AMVs, their varying quality and
their artistic value (if any), but I've come to believe that the real
importance behind this hobby is the culture it breeds. The fact
that some kid simply felt like making and posting an anime/music
remix is remarkable, and every time this is done the more obsolete
and intrusive do the current Draconian copyright laws appear.
For the most part it's an unwitting revolution, which amusingly
has these huge conglomerates playing whack-a-mole with
12-year old girls posting their Sailor Moon AMVs on you-tube.

I've become quite impressed by the AMV community as whole,
both with what it has achieved technically and artistically (there
is some fantastic stuff being made), but mostly because of the
role it's playing in the larger context of democratizing a remix culture.

[trythil]

It's nice to know that there are advocates out there who are willing to support us in the work that we do, but is this topic brought up to bring up discussion on:
1) The fact that there is a pillow protecting us against a copyright issue?

I don't think that's the point, because fair use doesn't work like that. I mean -- to continue abusing metaphors, it's not a cushioning device against legal forces; it's the final desperate battle against the lawyer machine army.

To really get to the point, however, fair use is a defense to be used when you get sued for infringement. Like any defense, it can fail.

The idea is that all the videos listed (11, 2 of them AMVs) constitute fair use

That is NOT the idea, and the EFF page says as much:

Rather than engaging in a legal argument about whether each of these videos falls within the bounds of the fair use doctrine, our view is simply that automated copyright filters should not automatically "block" any of these videos. Each of these represents a situation where additional human review is necessary before reaching any decision regarding an appropriate response by a content owner.

The "test suite" is instead meant to demonstrate the problems that can result by implementing simple yes-or-no filters, and the need for qualified humans to be a part of the review process.

[quadir]

That is NOT the idea, and the EFF page says as much

Except their examples don't mean much if they don't themselves think these examples constitute fair use. They think the argument can be made, but aren't making it in the test suite. I think it's really lame of them, because the test suite is moot if they can't at least make a decent case that they do infact apply.

If they are blatanly violations, like say for using unmodified audio in it's entirety, then no, you don't need a human to review it. Only for things like commentary or parody would you need human review in that case.

So yes by them posting these as the examples in a fair use test suite, I think they are saying they are fair use, even if you might not completely agree. A reason why they might not come out and say they are, is because it is a defence, so they can't say before the owners get sued.

[BasharOfTheAges]

I don't really think that the legality argument will ever be resolved.
In the end the deeper pockets win.

x2

I think, however, that the important thing is that maybe, just maybe,
someday it won't matter anymore.

I agree - but that kinda has been the big thing in the mindset of most of the world since the former Soviet Union did its first nuclear tests after WWII. Of course that kinda belittles the abject importance of anything when faced with the threat of annihilation.

[downwithpants]

the link in the article is broken, here's the link to Fair Use Principles for User Generated Video Content

that jesus video was funneh