Some news hit the fan late last week that certain parties tried to embarrass newly-elected congresswoman Alexandria Ocasio-Cortez by sharing a video of her dancing with college friends on a Boston rooftop, riffing on the 80s film The Breakfast Club to the tune by Phoenix called “Lisztomania.” Why anyone imagined this would shame Ocasio-Corez is a mystery to me, but the reason it’s a subject here is in response to an article in Wired alleging that “the only reason you can watch the video now is because of a copyright battle that was settled five years ago.” As usual, the reporting in this article is rich in attitude but poor in comprehension of copyright law.
For starters, in her zeal to criticize copyright, writer Louise Matsakis did not look very closely at the AOC video on YouTube, where two bits of evidence demonstrate that its presence on the platform has nothing to do with a settled 2013 litigation between copyright reform activist Lawrence Lessig and Phoenix label Liberation Music. The first clue is a timeline problem because the video was uploaded three years before Lessig’s confrontation with Liberation, and the second is that little statement below the video, which reads “Licensed to YouTube by Liberation Music, etc. …”.
I know it’s not very exciting, but the music in this video is simply licensed by the platform, which brings up a broader point that I’ll get to shortly. For the moment, though, I do not want to minimize the relevance of stories like Matsakis’s confusing the hell of people with regard to copyright law and what is generally called “remix culture.” It seems clear that a reasonable takeaway from this article is an impression that the AOC video represents a fair use of the song “Lisztomania” and that we have Lessig to thank for affirming that for us. Not even close.
In 2013, Professor Lessig included various “Lisztomania” inspired mash-ups and spoofs in the AV he used to support a lecture on the subject of remix culture and his view that copyright enforcement hampers the emerging experiences of digital-age consumers. When Lessig posted a video of this lecture online, Liberation Music (probably unwisely) filed a DMCA takedown and subsequent lawsuit against Lessig, which was eventually settled in Lessig’s favor. I do not know all the particulars of that conflict, but even if we stipulate that Lessig’s use was unequivocally a fair use, the video featuring “Sandy” Ocasio-Cortez is not.
While this video, and many like it, may (if we really stretch) be considered a comment on 80s culture, on The Breakfast Club, etc., the relevant facts are these: the video makes use of the entire song; the users make no creative changes to, or substantive comment upon, the song; and the song is synched to just over four minutes of motion picture. This is a classic example of a use that traditionally requires two types of music license, and there is no reason to expect that any court would find fair use in a hypothetical litigation.
In particular, as a work hosted on YouTube, the video would absolutely be considered a substitute for access to the song through otherwise licensed channels and would, therefore, fail under the fourth prong of a fair use analysis. Even though the friends of AOC made this video for fun, and it seems wrong to expect that they would ever license the music for such a purpose, the reality is that most rights holders understand that. What they are not cool with is YouTube earning a fortune from the traffic generated by hosting musical works while it pays songwriters and artists somewhere between a pittance and nothing for that privilege.
Returning to the reason why a video like this one (if it were not licensed) would fail under the fourth prong of the fair use test, it is widely recognized that YouTube is a globally-available substitute for other, paying or better-paying, channels for listening to music. Sure, this week people will watch the AOC video out of curiosity generated by the news about her—views jumped about two million since I looked on Friday—but in general, YouTube is how millions of listeners play songs they want to hear, regardless of what the videos display.
So, if 100 users upload a song for 100 different reasons, and each channel gets one million plays, that’s one-hundred-million public performances YouTube gets to monetize, possibly for free. And that is the complaint songwriters and artists have. It is the reason why proposals for change (e.g. the EU’s Article 13) have been presented—not generally to stop these uses but to share in the revenue generated by them. And that returns us to the absurd irony that, for all the legal incoherence in Matsakis’s article, the AOC video is actually a perfect example of what artists want—licensed use by the platform!
As a simple comparison, the video-makers in this case are like the local musician who wants to perform at Open Mic night at some club. Nobody expects that guy to pay for performing rights licenses. Instead, the venue—as the only money-making entity in the mix—pays performing rights licenses to cover most songs, so the musicians who come to Open Mic can perform whatever they want. In this analogy, YouTube is the (very big) money-making venue; the college students who made the AOC video are the local musicians; and the copyright owners of the songs don’t want to stop the use, they just want the venue to pay a fair license fee.
As for the rights holders who do occasionally have reason to stop a use, this should generally be respected, too, but is a case-by-case consideration that truly exists between the user and the copyright owner.
Meanwhile, the narrative spun by YouTube—with the help of Lessig, the EFF, et al—is that the big bad rights holders should “leave the kids alone,” and this theme is transposed into articles like Matsakis’s in Wired, which then fuels the misconception that videos like the one featuring AOC would be fair use if challenged. This breeds more unlicensed uses, often of works owned by rather small and modestly-resourced creators, from which YouTube reaps the financial benefit while the creators get nothing.
As Ocasio-Cortez styles herself a champion of the “little guy,” I’m happy to see our newest millennial Member of Congress laugh off the haters of this innocuous video, but I also hope that, as a representative, she helps foster an understanding that the songwriters and musical artists are the little guy trying to stand up to corporate behemoths like YouTube.
