Courts to rule on fan-created music videos

LOS ANGELES (Billboard) - More than a decade after the launch of Napster, the recording industry's complicated legal relationship with Web-savvy music fans seems no closer to resolution. But a number of cases winding their way through the courts may bring a bit of clarity in 2010 to one particularly fuzzy area of the law: fan-created online videos that contain music.

The major labels have all worked out deals with YouTube to split ad revenue with the site after a user uploads a music video. But considering that labels don't issue explicit licenses to users and YouTube continues to warn against uploading copyrighted material, it isn't clear whether the labels actually want fans to upload their music in the first place. Meanwhile, other copyright owners who don't have deals with YouTube, such as Viacom and music publisher Bourne, are still pursuing copyright infringement suits against the video-sharing giant.

The latest action taken by a major label against a video-sharing site -- and a key case to watch in the new year -- were suits filed in December by EMI Music imprints Capitol, Caroline and Virgin and EMI Music Publishing against Vimeo.com, a division of online media conglomerate IAC. EMI charges that the site infringes on its copyrights by allegedly encouraging users to upload videos containing professionally produced music. The EMI suit also focuses on "lip dubs" (a phrase EMI says was coined by Vimeo), homemade videos that feature fans lip-synching to professional recordings, including many from the major labels.

EMI's suit will likely revolve around two legal issues. First, are video-sharing sites -- which organize, categorize and profit from user-uploaded copyrighted content -- liable for copyright infringement? While the Digital Millennium Copyright Act includes "safe harbor" provisions for sites that promptly remove videos upon receipt of takedown notices from content owners, copyright owners claim that the DMCA, enacted years before video-sharing sites even existed, was never intended to protect sites that built businesses around rampant, unlicensed use of others' intellectual property, especially when they encourage users to upload copyrighted content. (EMI also alleges that Vimeo itself uploaded videos containing its music, activity that isn't covered by DMCA safe harbors.)

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There is surprisingly little case law on this topic. In September, a federal judge in Los Angeles ruled against Universal Music Group in its infringement suit against Veoh.com, saying the video-sharing site was protected by the DMCA. But that case isn't binding on a New York federal court, and UMG is appealing. And in a case involving peer-to-peer site isoHunt, a U.S. District Court judge ruled in December that safe harbors are simply unavailable to sites that "induce" infringement.

The other major legal question in the EMI suit is whether lip dubs and similar mash-ups of amateur and professional content are infringing. Copyright reform activists argue that they're examples of fair use tolerated under copyright law as an accommodation to noncommercial, transformative creativity. Of course EMI will point out that, whatever the motivation of the amateur lib-dubber, Vimeo is anything but "noncommercial."

Sources familiar with the labels' thinking on the issue acknowledge these videos' promotional value, but they also note that other video-sharing sites like YouTube have struck deals with the labels and dismiss the notion that copyright owners should forgo a revenue stream simply because it also promotes their artists.

Elsewhere, Stephanie Lenz is still battling UMG over its takedown of a video she had uploaded to YouTube of her toddler son dancing to Prince's "Let's Go Crazy." Lenz wants damages for the removal of a video she considers an obvious fair use; UMG maintains it acted in good faith to protect its copyright. And Don Henley's suit against U.S. Senate candidate Chuck DeVore (R-Calif.) over the use of "The Boys of Summer" and "All She Wants to Do Is Dance" in "parody" political videos is moving forward in federal court in Santa Ana, Calif.

U.S. courts have yet to provide clear guidance regarding the legality of pairing copyrighted music with amateur video and then broadcasting it to the world. That may finally change in 2010.

(Ben Sheffner is a copyright attorney who has represented movie studios, TV networks and record labels and now works as in the NBC Universal Television Group, which is 20 percent owned by Vivendi, the parent of Universal Music Group. He is the author of the Copyrights & Campaigns blog, copyrightsandcampaigns.blogspot.com.)