7

I recently saw a tweet claiming a video got a DMCA claim based on humming a part of a song.

Can uploading a (monetized) video of humming a bar or two of copyrighted music be considered as copyright infringement, or is it fair use?

  • 10
    A big problem here is that "fair use" is a set of guidelines for a court rather than a solid and dependable set of rules. So unless a court has ruled the answer to the question "is this fair use" is can only be somewhere between "probably" and "probably not". – Paul Johnson Oct 26 at 11:57
  • 2
    Bar of music - "24. (music) A vertical line across a musical staff dividing written music into sections, typically of equal durational value. Synonym: measure". 25. (music) One of those musical sections. – Peter Mortensen Oct 26 at 19:18
  • 1
    But is its use here idiomatic (not a rhetorical question)? – Peter Mortensen Oct 26 at 19:21
  • 2
    @PeterMortensen yes, it's idiomatic. In this case it's sense 25, not 24. For example, the first two bars of Lennon and McCartney's Yesterday correspond to the lyrics "Yesterday, all my troubles seemed so...." (However, it is possible to change the length of a bar, usually by a factor of two, without changing the sound of the piece, so for music that is not written down people may reasonably disagree about the length of one bar.) – phoog Oct 26 at 21:57
  • 1
    @PeterMortensen See reddit.com/r/Jokes/comments/2mgiez/took_me_a_while – Acccumulation Oct 26 at 23:11
23

Go to court and find out

There is no doubt that humming a tune and recording it (or performing it in public) is a derivative work - a right reserved to the copyright owner.

Whether it is fair use depends on the specifics of the case. From the tweet, we simply don’t have enough information, however, at a guess, it is probably not fair use.

Fair use in law is

Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Most people miss “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research,” - if you aren’t doing one of those things then you start behind the 8-ball when yo move to the 4 factor test. Note that the “criticism, comment, news reporting,” etc. must be about the copyrighted work - I can’t use your copyrighted work to, for example, parody a politician unless you are that politician.

Many people have completely the wrong idea about what copyright infringement and fair use actually are, in part because the use of music on YouTube is allowed, not because it’s fair use but, because YouTube was smart enough to negotiate and pay for a permissive licence with music producers. For a full explanation, see this video.

| improve this answer | |
  • 2
    This isn't as inflexible as you're making it sound. Satire has been ruled fair use, some of the time, e.g. Blanch v. Koons. And "comment" covers a pretty broad range, it's totally possible that someone in the video said "oh, xyz reminds me of that song (humming)". Especially since "humming a bar in a YouTube video" is generally going to pass 4 by a large margin, and 3 unless it's a very short song. – user3067860 Oct 26 at 20:48
  • 1
    @user3067860 it’s very flexible - it just isn’t as broad as most people think. Fair dealing is very inflexible but that gives it the advantage of being (more) definite. Fair use can capture some things fair dealing wouldn’t but it can also exclude some things that would be fair dealing. While fair use is no longer an affirmative defence (in the 9th circuit at least) its still a tricky defence to win against a determined and well-resourced author. – Dale M Oct 26 at 22:00
  • @user3067860 Where does Blanch v. Koons say that? – Acccumulation Oct 26 at 23:17
  • 1
    The phrase "for purposes such as..." is not meant to be exhaustive, as implied by "such as". The closer one's actions are to the things on the list, the more effectively one will be able to satisfy #1, but I think a key aspect is the extent to which other works would be substitutable. If one were doing a video about a singer, including a 4-second clip of a famous song would help viewers associate the singer with songs they'd heard, even if they hadn't previously associate the singer's name with those songs. Playing some royalty-free song which is kinda sorta in the same genre would... – supercat Oct 27 at 17:04
  • 1
    I'm a bit confused by the assertion that humming a tune is 'clearly' a derivative work. Derivative of what? Isn't it just a performance of the work? I suppose it depends on what you consider "the work" and whose copyright is being gored. Is humming "White Christmas" derivative of Bing Crosby's release? Or is it just a performance of an Irving Berlin tune? If the latter, how is it derivative? – Jim Mack Oct 27 at 20:11
5

The only way for the hummer to find out definitively is to file a counter-notice that, assuming the copyright holder files an infringement lawsuit, argue fair use. There is a reasonable chance that a fair use defense will succeed. The main impediment to fair use is the alternative that the "copying" is commercial. However, educational and "commentary" fair uses don't have to be given away for free (otherwise, there would be no textbook market, and they'd have to give newspapers away). It is more likely that the tiny amount of money gained from Youtube ad revenue does not constitute a "commercial" use in the court's judgment. The amount of copying is trivial and it is highly transformative, factors that favor fair use. Without inspection of the usage in context we can only surmise that this constitutes a "commentary", another factor favoring fair use. It is also highly unlikely that it will have an effect on the market for the original song. A fair use analysis requires balancing, that is, the list of factors isn't a list of fatal poisons. On balance, this is most likely fair use.

This also resembles Lenz v. Universal Music, where the court found that the complainant has a duty to consider fair use, so it is possible that the copyright holder has put himself in jeopardy by filing the DMCA takedown.

| improve this answer | |
  • Why wouldn't YouTube monetization be evidence of commercial use? – bdb484 Oct 26 at 15:26
  • For the same reason that selling a textbook is not "evidence of commercial use". The purpose and character of the use is "to comment" or "to educate", not "to make a buck". It would be an interesting research question to discern what level of profiting the courts tolerate under fair use: a potential separate question, if you are interested. – user6726 Oct 26 at 15:34
  • 4
    I think you're conflating some different concepts here, as selling a textbook isn't even making a copy. Has a court ever endorsed this theory that selling advertisements on your copy of a copyrighted work doesn't constitute a commercial use if you're only making a tiny amount of money? – bdb484 Oct 26 at 18:23
  • The author copies material, under fair usage, into his textbook. He receives royalties from the publisher, who send books to sellers for end-user distribution. The author intends to receive royalties. No court has ever endorsed the theory that copying into a textbook where the author receives royalties constitutes infringement because if=t is a "commercial use". – user6726 Oct 26 at 19:17
  • 1
    It probably was an automated take down notice--I wonder where that falls, relative to your last paragraph. – user3067860 Oct 26 at 20:50
-2

Broadly if the original is recognisable from the upload, there's a question of infringement. Fair use would include artistic, critical or academic comment or - possibly - the fact that the passage happened to be playing in the background of your wedding video.

Here, though, the Question turns on someone's definition of "monetized", that someone being first the copyright holder and then the court.

If that video is merely Posted on social media as celebration, you prolly won't be sued and if you were, you'd prolly walk free.

If the same video features the bride and groom falling over the cake and you sell it to someone who pays for bloopers, you might well be sued. More likely the people who paid you a token fee, then published the video for profit would be in court.

If you were paid extra because every movement the bride and groom made while falling over the cake just happened to match the music, you'd be more likely to lose but any of these cases might depend on the judge's mood and understanding.

I'm reminded of a case whose name I forget, in which a second person recorded some music and the judge awarded copyright damages to the first. Does that make sense? It was never clear whether the judge understood, but he certainly refused to accept the axiomatic argument that the passage at issue was a standard musical progression, not more eligible for copyright than might be 1-2-4-8-16…

| improve this answer | |

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.