Copyright & AMVs: Are AMVs Fair Use?

[trythil]

Didn't trythil already do this?

Something like it. I stopped trying to find people to make coherent legal arguments, or trying to make legal arguments myself, when I realized that the best arguments in the world didn't mean shit as long as we didn't have the money to back them up. It is for that reason, as well as the immense difficulty of defining just what an AMV is, that I don't think AMVs have a chance in court.

That said, I think it's cool that we're starting to see more lawyers out there standing up for the little guy, and I hope that the trend is an accelerating one.

[Fall_Child42]

Didn't trythil already do this?

Something like it. I stopped trying to find people to make coherent legal arguments, or trying to make legal arguments myself, when I realized that the best arguments in the world didn't mean shit as long as we didn't have the money to back them up. It is for that reason, as well as the immense difficulty of defining just what an AMV is, that I don't think AMVs have a chance in court.

That said, I think it's cool that we're starting to see more lawyers out there standing up for the little guy, and I hope that the trend is an accelerating one.

You know, Defining everything is extremely difficult unless it's a concrete logical concept. Those are rare.

[downwithpants]

i remember two interesting points that came out of these discussions:
1) videos like amv hell (short clips that don't use an entire licensed audio work) have the best shot at the fair use argument
2) videos that suck too much don't provide artistic or intelligent contribution to the derivative work, and have a poor shot at the fair use argument
ah here's the thread: http://www.animemusicvideos.org/forum/v ... =2&t=89300

[Dark Lord of Debate]

Hmm, interesting. I just glanced over that thread and it looks like regarding AMVs being transformative in relation to the music, I'm essentially arguing the same thing that Kionon did in that thread. By combining the music and video, you transform the song in terms of qualitative meaning and significance rather than actually transforming it by chopping the song up and combining it with other songs or something.

I have great difficultly accepting our use of audio is transformative when we don't actually transform it. I also believe most AMVs don't add a new layer of meaning; many are either meaningless, straight literal lyric sync, or focus on matching the audios mood and flow. We tend to be a lot more faithful to the song than to the anime actually. It's almost unheard of for an AMV to have an entirely new message from the audio. So I think a fair use defense of our audio use would be very tough. The fact that official music videos are generally viewed as derivative rather than transformative also indicates AMVs could be viewed the same. Some AMVs do actually transform audio enough or produce new meanings so they could be defended, but I doubt that's true for the majority of vids. Which is why I think even if an AMV does get taken to court and does successfully defend on fair use grounds it wouldn't necessarily be a good precedent case if the vid edited the audio.

You could be right here and I fully acknowledge that's' probably the weakest point of my argument. It's a bit of a stretch I know to say just adding video over a song is transformative, and honestly I'd have to do more research on court precedents to see if my argument would ever hold water in court. But at least the way I see it, in AMVs both the video and the audio come together to form one cohesive whole, creating an entirely different viewing experience than viewing either one separately. Neither part would be the same without the other. The song acts as a lens interpreting how we see the video, giving it a new feeling and meaning. Likewise the video serves as a visual translation of the song, giving it new meaning and significance as well. It could just be the way I edit (I'm personally really big on lyric sync), but I've always thought of AMVs (and music videos in general) as a way of making songs come alive through the video, giving them a wholly different emotional character and creating lasting associations and impressions in the viewer's mind.

The point of my argument is to focus on the totality of the viewing experience rather than just whether the song is actually altered or not. The experience of watching an AMV is quite different than viewing either the song or the video by themselves, but both derive meaning and substance from the other. Legally, the standard of whether a use is transformative is whether it "merely supersedes the objects of the original creation" or alters the original "with new expression, meaning, or message." While AMVs could technically supersede the song if someone just watched the video to hear the song, their actual "object" is to combine the video and audio into a new "message" or "expression." Thus I think the video does indeed add on enough of a new layer of meaning that it could be called transformative.

Whether a court would actually accept that argument, I really don't know, but I think there is at least a case to be made for qualitative transformation, and it's probably the best argument that could be made under that point of the fair use test at least as far as the music is concerned. And really, as far as I can tell, winning the first prong in the fair use test is absolutely critical, since the only other point in our favor is the fourth. Prong 2 doesn't really come into play and prong 3 probably counts against us, so you'd probably have to win both 1 and 4 to have any chance at winning.

Finally just one word of encouragement:

You actually got them unblocked?

Yep. I've had several of my Final Fantasy vids using Within Temptation blocked, and I got all of them restored by simply disputing the content filter's takedown. They were restored immediately and I assume You*Tube notified Warner about them in case they wanted to take any further action. Apparently they didn't because a couple months later the status had changed from "dispute filed" to "dispute successful," which I guess means Warner decided it wasn't worth the trouble to file an actual DMCA notice. It was actually rather ironic, since one of my videos using Within Temptation's song "Hand of Sorrow" actually got a huge boost in popularity because of the Warner takedowns. Because I was the only one with a video on the site using that song who actually defended it, my video rose to the top of the search list, and went from about 40,000 views in December (when the Warner blockade started) to over 100,000 now. That's why I'm telling you guys not to give up and write off AMVs as a legal lost cause. It is possible to win if you're willing to risk standing up for your rights.

[dazza1008]

i remember two interesting points that came out of these discussions:
1) videos like amv hell (short clips that don't use an entire licensed audio work) have the best shot at the fair use argument
2) videos that suck too much don't provide artistic or intelligent contribution to the derivative work, and have a poor shot at the fair use argument
ah here's the thread: http://www.animemusicvideos.org/forum/v ... =2&t=89300

Isn't it true that websites can have 30 second samples of songs without violating copyright?

and re: #2 - that provides a new incentive to get better.



@Dark Lord of Debate - if someone liked a song and wanted to have a copy, do you think they'd be satisfied having an AMV with the full song and therefore wouldn't need to go and buy a copy?

[Dark Lord of Debate]

@Dark Lord of Debate - if someone liked a song and wanted to have a copy, do you think they'd be satisfied having an AMV with the full song and therefore wouldn't need to go and buy a copy?

In most cases, no. AMVs by themselves are pretty much useless just for the music. You can't import them into iTunes, you can't put them on an iPod etc. It may be fine if you're willing to just have Media Player minimized in the background to play it, but if you want to do anything more with the song you'll need to throw the file into your editing program, drop the video track, crop out any dead space the editor added in, then re-render just the audio track. Then of course the resulting mp3 comes out without any meta data, so you have to input it all in manually--and it will still probably have some quality loss because of all the transcoding. That's a lot of trouble to go through for just one song, which is why I personally only do it on the rare occasion I can't find the song anywhere else. Really, there are a lot of easier ways to get music, and if someone was really intent on getting the song for free they would probably just download it off a p2p network or something.

The point is, while it is theoretically possible to steal the original song by ripping the audio from AMVs and I'm sure we've probably all done it on occasion, that is the exception not the rule. And since the primary purpose of AMVs is not to enable this type of infringement but to create a new work of art, the law can't say they exist merely to supplant the original. Also, as I mentioned earlier, the burden of proof is on the copyright owners to demonstrate by a preponderance of the evidence that AMVs harm their market, which means they would actually have to prove that people do download AMVs instead of the original song, and that this is not outweighed by the free advertising AMVs give the artists, motivating people to buy their music--just as official music videos do. Remember, it would also be theoretically possible to rip the audio from the band's official music videos which are made available on any number of sites, yet the music industry generally considers it worth the risk because of the promotional value of music videos. Why would AMVs be any different?

[trythil]

In most cases, no. AMVs by themselves are pretty much useless just for the music. You can't import them into iTunes, you can't put them on an iPod etc. It may be fine if you're willing to just have Media Player minimized in the background to play it, but if you want to do anything more with the song you'll need to throw the file into your editing program, drop the video track, crop out any dead space the editor added in, then re-render just the audio track.

As a technical nitpick, this is incorrect, and is probably not the first rebuttal you want to advance. I do also think that AMVs are useless just for music, but so long as there's a thread here to discuss legal defenses I might as well just throw in the footnotes.

The following will extract the audio track from nearly any video file just fine, no transcoding required:

Code: Select all

mplayer -dumpaudio [FILE]

or for audio and video muxed in an MPEG-4 container

Code: Select all

MP4Box -extract -raw [TRACKID] [FILE]

or, if absolutely necessary, you can transcode (and it doesn't matter all that much because storage just keeps getting cheaper)

Code: Select all

mplayer -ao pcm -vo null -vc null [FILE]

(...and since the vast majority of AMV audio is encoded as MP3 or MPEG-4 audio, the rest is trivial)

All that aside, the amount of effort to do this is obviously different -- maybe higher -- than the amount of effort it takes to click a few buttons and download songs, or go to a record shop and pick up an album. (Yeah, record shops. I'm getting old, huh?)

[trythil]

Also, to advance an answer "Why would AMVs be any different?":

Though everything distributed over the Internet can, in theory, be copied, music videos distributed through official channels are, in practice, a little harder to get at. Flash video, QuickTime, and Windows Media are the dominant formats, and there are little roadblocks in your way to obtaining a copy of the audio source. All of them can be overcome, but not without modest to substantial effort. Plus, the audio source is often of inferior quality to the official distributed product. All of this means that the music video won't really be a suitable replacement for the original source for most people.

Now let's say I distribute a video in a Matroska container, using whatever video codec you want and FLAC lossless audio. I've never seen anyone do that, but it's certainly not out of the question these days. (If this being a hypothetical is a real problem, I can re-release one of my videos in precisely that format; then we'll have a real case.) In this case I've given a flawless copy of the audio source to my audience, and it's really not that hard to get at: one can just get a Matroska demuxer (mkvtoolnix is readily available, and the GUI is not hard to use) and rip the audio stream.

Is that worth the effort? Depends on a lot of things: two I can name offhand are the tech-savvy of the user and any unique qualities of the audio (did I use some special version of a song that's hard to get hold of? Did I somehow manage to get a really high-quality rip, e.g. off a good vinyl recording rig?)

So I don't think the question can be tossed away so easily. The environment matters.

[ZephyrStar]

If you consider AMV's to be a form of art, then the soul of art is creating no matter what rules you might be breaking. To hell with rules.

[dazza1008]

If you consider AMV's to be a form of art, then the soul of art is creating no matter what rules you might be breaking. To hell with rules.

Er, unless you're being sarcastic, that ain't gonna hold up in a court of law.