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?
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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:
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- 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The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.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.
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.
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…