14 important takeaways from this talk:
00:01:52 Consider the audio part of the ‘Harlem Shake Video’ from 00:00:57-00:01:26 in the talk above. The first Harlem Shake video was uploaded onto Youtube on February 4th. By February 10th over 4,000 Harlem Shake videos were being uploaded every day. This is because the Harlem Shake video was the perfect meme: A short, 1 cut video with only two scenes and one addictive musical sampling of the first 30 seconds of Harlem Shake (2012) by Henry Baauer-Rodriguez.
The Harlem Shake song itself received many awards, certifications, and chart listings, almost exclusively through viral online videos and without significant radio or television exposure. However, insofar as copyright laws are concerned, Harlem Shake used, without permission, a sampling from Miller Time by Plastic Little, released in 2001. Further, the underlying drum beat in Miller Time was taken, without permission, from Synthetic Substitution by Melvin Bliss, released in the 1974.
Consider now the video part of the ‘Harlem Shake Video,’ again from 00:00:57-00:01:26 in the talk above. The video is created using Minecraft, the most successful indie-game of all time. Minecraft was heavily inspired by Infiminer by Zach Barthe, which was inspired by a free Flash game called Mother Load.
Zach Barthe, when asked if he was angry that he didn’t earn a profit from Minecraft, responded “The act of borrowing ideas is integral to the creative process. There are games that came before Infiniminer, and there are games that will come after Minecraft. That’s how it works.”
00:05:37 So to sum up, we have a video, inspired by videos that samples a song, that samples a song, that samples a song, made in a game inspired by a game that was inspired by a game.
This his how art and culture is made; by taking the taking the works that we love and building upon the ideas those before us whom we admire. NOBODY IS IMMUNE HERE; lone rangers don’t exist.
00:07:53Even Apple, considered one of the greatest innovators of the modern era, borrowed ideas and technology from other competitors at that time.
00:08:02 What makes this exponentially innovative technology and readily-available art so readily-available? With the internet came two important advancements which have resulted in the biggest explosing in creativity in human history:
- Easy access to all media ever made
- The ability to publish your work instant and freely to a global audience
[EDITOR’S NOTE: For more interesting information about how humans are coping with the exponential evolution of technology, watch the documentary Transcendent Man: When Humans Merge With Technology & Transcend Biology.]
This would all be fantastic if it weren’t for one thing: © Copyright
00:08:50 A common technique of content publishers who use and remix other people’s content is to place variations of “NO COPYRIGHT INFRINGEMENT INTENDED. ALL RIGHTS TO RESPECTFUL OWNERS” alongside their uploaded content, believing this is notice is enough to protect them.
But this notice will not protect you from a copyright infringement lawsuit.
00:11:22 Youtube’s content ID software scans through every video that is uploaded to Youtube for potential copyright infringements. This system is so powerful that it can even detect the underlying melody of a cover song.
00:11:36 Youtube tries to educate its users on how to avoid copyright infringement through their Youtube Copyright School.
Google’s best attempt at explaining copyright laws to the average user is to show them a crushing wall of text and tell them to go get a copyright attorney before uploading their Youtube video…
00:16:57 This is because most music licensing and fair use is in fact really, really complicated. If you want to use a sample, you need to directly negotiate a license with the rights holder – usually with the record company. Even a highly-distorted, 2-second sample has been found by courts to infringe copyright. Therefore sampling is extremely difficult and expensive to do.
On the other hand, you could consider sampling so fragrantly that record labels are terrified to take you to court for fear of establishing a new precendent in copyright law.
Purchasing the use of cover songs, on the other hand, is the only sane licensing in the copyright world. You can purchase them directly and immediately online through websites such as Harry Fox (HFA) wihout needing permission, like you do with sampling music.
00:18:49 Likewise with photography, if you want to use an photograph, you have to negotiate a license directly with the photograph owner. But an illustration based on a photograph is not nearly as clearly outlined in the law.
00:20:20 Regardless of whether you believe your use qualifies as ‘fair use’ or not, fighting the accusation just to prove you are innocent can take years and cost millions of dollars in discovery, expert witnesses, court fees, etc. just to reach a conclusion – bearing in mind that after all that you are not guaraneed to be found ‘not guilty.’
This is why almost every copyright case settles out of court and almost always includes a confidentiality agreement, and why there is so little actual case law challenging current copyright laws.
00:23:51 Fair use will not save you. In fact nothing that you have ever made is fair use because:
- Fair use is not a law, it’s a test used in court to help a judge determine if something is liable for infringement. Only investing those years and millions of dollars in discovery, expert witnesses, court fees, etc. can you then challenge the accusation.
- Anyone can sue you for anything, even without grounds.When they do, you will have to defend yourself, and settling out of course is almost always cheaper than fighting for your reputation, and the person suing you knows this and is counting on you settling out of court.
00:26:53 Being sued for copyright infringement carries with it a penalty of can ruin your life, and definitely the life of your business. This is due to the way that copyright damages work: the law allows a copyright owner to collect not only actual damages that they’ve suffered plus any of the profit taken in by the copyright infringer, but also statutory damages for ‘willful’ infringement of up to $150,000 per work.
00:27:20 The problem is that even a small settlement done out of court on a bogus copyright infringement claim is more lucrative than years of running Youtube advertisements on an uploaded video, and lawyers are realizing this and adapting their strategy.
Extortion-like mass automated copyright lawsuits are being sent out and the out of court settlement monies collected as a business model, usually between $2,000-5,000 per person. This isn’t a creator protecting himself with copyright, this is exploiting copyright as a revenue model.
[EDITOR’S NOTE: For more information on copyright law as it pertains to photography, read Andy’s insightful blog post Kind Of Screwed.]