Fair Use Isn’t “Dare Use”

LTG YT

Don’t fall for fair-use daredevil tactics. You might get hurt.

I know Fair Use Week is technically over, but when I saw this video produced by Public Knowledge, I couldn’t, y’know…let it go.

Remember how I’ve argued a few times that organizations have a habit of promoting fair use messages that can confuse people and potentially get well-meaning creators into legal trouble? Well, kids, with regard to the snarky video Public Knowledge released last week, all I can say is, don’t try this at home. Because their fair use argument is technically pretty weak, and I wouldn’t follow their lead unless you feel like poking a phalanx of lawyers with a stick.

So, what Public Knowledge did was have a guy named Charles Duan write anti-copyright lyrics on the theme “Let ‘em Go” set to the tune “Let It Go” from Disney’s movie Frozen. Vocalist Courtney Duffy, with all the earnestness she could muster, sings lyrics like “But companies with cash and greed, Choke the public domain these artists need.” Ouch.

Anyway, the video itself is a montage of clips from Disney animated films, home-movie footage of people dressed as Disney characters, and a variety of creative expressions both directly and indirectly trying to make a point about copyright. The message, as usual, is muddled. PK is provoking Disney because of the trope that the company is directly responsible for the last extension of copyright terms—not actually true—but the video is also trying to be a lesson in fair use, presuming to prove its point by brazenly making use of works belonging to one of the most famously protective companies in the world. (Oh, and a shot of Holden, the “dancing baby” in Lenz is thrown in for good measure.)

Never mind that any number of the depicted “uses” would not implicate copyright (or consequently fair use), but on the subject of copyright terms, the message is weakened by the fact that PK depicts a number of works, like clips from Frozen, whose copyrights would not have expired even if terms were dramatically shorter. Of course, the folks at PK never let pesky details get in the way of a well-entrenched conceit.

Personally, I don’t get everyone’s obsession with the Mouse, and it would be nearly impossible to count all of the creative works that have been produced concurrent with Mickey’s long tenure as an IP-protected icon, but whatever. No doubt there’s an artist somewhere, languishing in a lonely garrett, rendered mute because he cannot fulfill his Mickey Mouse vision.

The Song Is Not Fair Use

The big thing that jumped out at me about this video, though, is that PK’s use of the song in this case would likely not do very well under a fair use test if Disney were to sue the organization. The song may be covered by a blanket license for use on YouTube,* which would be an amusing irony, given the posture of “civil disobedience” PK presumes to be striking here. But if that were not the case, and if Disney wanted to take action, I think Public Knowledge would fail in a fair use defense for its use of “Let It Go” in this video.

As mentioned in an older post, a fair use of a song in the way PK used it here protects parody, meaning that the new use must in some way comment on the original work. Fair use as parody does not protect the use of a song with new lyrics written to express something that is entirely separate from the meaning or spirit of the original work. As noted in this post about the Westboro Baptists writing and recording anti-semitic lyrics to McCartney’s “Hey Jude,” such uses can have very negative effects and even infringe the speech rights of the authors. As we saw in regard to the settlement in GoldieBlox’s use of a Beastie Boys song, the fair use defense does not generally support a use like the one PK made for this video.

The song “Let It Go” is about a young woman breaking out of her frozen shell to become her true self, so I think PK would receive a pretty frosty, judicial response if they tried to argue that their anti-copyright lyrics meet the definition of parody. If Disney were to sue Public Knowledge, I believe the use of the song in this case would fail on the first, second, and third factors of the fair use test. Specifically, PK’s desire to comment upon The Disney Company via its use of “Let It Go” would likely invoke a citation of the 2009 case Salinger v Colting in which the defendant’s authorship of an unauthorized sequel to The Catcher in the Rye was not held to be a fair use on the basis that it was expressing a comment upon J.D. Salinger himself. From the opinion:

“While the addition of Salinger as a character in 60 Years is indeed novel, the Court is unconvinced by Defendants’ attempts to shoehorn Defendants’ commentary and criticism of Salinger into the parodic framework of Campbell,** which requires critique or commentary of the work.”

For all their smugness, Public Knowledge is more likely protected either by license between Disney and YouTube or by PR (i.e. Disney may decide it isn’t worth the press fight); but the fair use defense here kinda blows. And that’s why I say these organizations are not doing the public any favors when they produce this kind of propaganda. They can get well-intentioned creators into trouble by evangelizing a general understanding of a legal doctrine that demands a more nuanced consideration. Maybe, Public Knowledge should heed an apropos line by comedian Ron White: “The next time you have a thought, let it go.”


*ADDENDUM:  Thanks to the comment from artandcreativesite, which reminds us that even with such a license to use a song, complete revision of the original lyrics still infringes the rights holder’s exclusive right to create derivative works.

**Campbell v Acuff-Rose, a landmark case in which 2 Live Crew’s use of Roy Orbison’s “Oh, Pretty Woman” was held to be  fair use as a parody.

© 2017, David Newhoff. All rights reserved.

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