conpfreak wrote:
Thanks. Actually that an horrible misconception about AMVs. It's perfecly legal to use the sources UNLESS you are drawing a profit directly from the videos or the person who created the source objects to you using it(Which will never happen because that just cutting off free publicity).
I'm going to disagree with you, and present an argument, based on US copyright law, for why I disagree. I'm not a lawyer, but I have read the US laws, and my interpretation tells me that you're dead wrong with respect to the United States of America.
The international situation is similar, because Japan, the U.S., and indeed many other of the "civilized" countries are party to
the Berne Convention for the Protection of Literary and Artistic Works. I'll paste the relevant excerpts in here, if you're allergic to hyperlinks. If you want I can try to construct an argument based on the Berne Convention.
0. Anime and music are within the scope of copyright protection.
http://www.copyright.gov/title17/92chap1.html#102
Chapter 1, paragraph 2 wrote:
(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:
...
(2) musical works, including any accompanying words;
...
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
...
1. An AMV is a derivative work of both music and anime.
http://www.copyright.gov/title17/92chap1.html#101
Chapter 1, section 101 wrote:A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a “derivative work”.
2. The copyright owners of the anime and audio retain their copyright powers over the portions you used, and you do not have the right of copyright protection if such material is unlawfully used.
http://www.copyright.gov/title17/92chap1.html#103
Chapter 1, Section 103 wrote:(a) The subject matter of copyright as specified by section 102 includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully.
(b) The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.
3. The copyright owner has a number of exclusive rights that exist independent of whether or not any party profits from the copyrighted work, and AMVs, as they currently exist, are strongly suspected to violate them. I've excerpted the relevant sections here:
Chapter 1, section 106 wrote:Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
...
(2) to prepare derivative works based upon the copyrighted work;
(2) has an obvious application. Unless you have received authorization from all copyright holders involved, you're already in the wrong.
Note that it says nothing about a sale.
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly
The Internet is a public network, and distribution via the Internet, unless you lock it down (and you haven't), is putting your work up for view of the public. Note that it says nothing about a sale.
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
This was inserted fairly recently with the Digital Performance Right in Sound Recordings Act of 1995, and is very relevant to AMVs, for obvious reasons. Note that it says nothing about a sale.
There are some copyright holders that will explicitly authorize such performance (and I'll get to that later) but most still don't. This is the surface of the implications of "All Rights Reserved".
4. There are exceptions to section 106, but they do not apply.
Limitations on exclusive rights: Fair use: This requires that people go into court and decide whether or not a
specific AMV (
not AMVs in general!) is protected by fair use. Some AMVs will receive that protection; others might not.
Now, I'm going to argue that fair use is irrelevant for AMVs and their authors, for the reasons I mentioned above: it's a case-by-case decision, and it's prohibitively expensive for most people, especially people involved in AMVs, because you have to have a legal decision made on this. This means research and/or lawyers, and this means a large investment of time and/or money.
Limitations on exclusive rights: Reproduction by libraries and archives: You'd think the .org could get off easy here, but that isn't the case.
- Subsection (a) is invalid because we're making a lot more than one copy here.
- Subsection (b) is invalid because, by putting your AMV on the Internet, you have published it.
- Subsection (c) is invalid because you're not make duplicates with the intent of replacing a copyrighted work in a deteriorating format.
- Subsections (d) and (e) are invalid because we aren't dealing with articles or other contributions to periodicals or other such collections, nor with users making personal copies of such articles, nor (in many cases) with copyrighted works unavaliable at "fair prices".
- Subsection (f) addresses limitations of liability, but does not address legality, except (3) and (4), which are also irrelevant because (3) deals with "audiovisual news programs" and (4) states that section 108 does not limit your fair use rights, which I've already argued are pretty much irrelevant.
- Subsection (g) is inapplicable because neither (1) nor (2) really work out here.
Limitations on exclusive rights: Effect of transfer of particular copy or phonorecord: This is also referred to as the "doctrine of first sale", and does not apply here, because we are not engaging in the sale of used copies of copyrighted goods.
Limitations on exclusive rights: Exemption of certain performances and displays: Well, here's the problems:
- Does this site satisfy
...face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction
? I do not think it does, because (a) there are no face-to-face teaching activities going on here; and (b) we are not an educational institution. While you *might* be able to formulate an argument that a-m-v.org is "devoted to instruction", you still have the problem of (a).
- Part (2) can be related to online instruction, and I do not think we obviously satisfy that, mostly because of (2)(c)(i), (2)(c)(ii), and (D)(ii)(I)(aa).
- Part (3). We're not "a place of worship or other religious assembly".
- Part (4) is stymied by that "transmission to the public" thing again, even though we have no "purpose of direct or indirect commercial advantage and without payment of any fee or other compensation for the performance to any of its performers, promoters, or organizers".
The rest of the parts (there's 10 of them plus clarifiying material) are also not applicable. I'll let you read them; I think it's pretty obvious why.
Limitations on exclusive rights: Secondary transmissions: A secondary transmission is a transmission of copyrighted material over (e.g.) hotel TV systems or cable networks; basically, passive data carriers. This is more applicable to the .org (even though I don't think the .org satisfies the necessary criteria) than to AMV creation, so I'm not going to address it.
Limitations on exclusive rights: Ephemeral recordings: Also inapplicable. This is much more applicable for situations like Internet radio stations.
(more in next post)
