News/educational - likely okay as incidental.
Everything else is up to the courts to decide.
Under this example, I’d argue that this is not incidental usage. The audio could be considered integral to the “scene” that is being recorded. It gives the audience an idea of what place x looks, feels and sounds like. And this is certainly not news/educational content.
But if you watched his videos this isn't the case.
It's him walking through some public outdoor market in Sri Lanka and one of the vendors happens to have a radio on which is captured by his camera's microphone as he walks through while narrating what's going on. He didn't go out of his way to capture the audio separately and then overlay it afterwards. It's background noise that was recorded in the same audio stream he uses for his voice's microphone, which makes it pretty much impossible to cut out later short of muting all of the audio or making artificial cuts to remove the content.
In any case, it's a shitty situation for both the content creator and the viewer.
A musical work was publicly performed (via the radio). He recorded that musical performance (making a copy of the musical work in the process) and then distributed that recording of it to a wider audience. Each time someone watches that video, that is a public performance of that musical work.
Whether there was intent or not, it doesn’t matter. How it was recorded doesn’t matter.
Copyright law doesn’t care about intent. It cares whether a musical work has been performed or copied. Both have happened in this case.
And it can be argued that it does not fall under news programming (he’s not a journalist breaking a story) nor educational (he’s not teaching anything). Therefore it will struggle to be considered fair use.
This is actually copyright law finally being applied correctly on the internet. Its just taken years for it to actually happen on platforms like YouTube.
The problem is 10 seconds or even a minute of a recorded song shouldn't mean a record label or the original music owner can swoop in and reap 100% of the ad revenue (minus Google's cut) for a 1 hour video you recorded which has ads relevant to your content (not the song).
By the way, you could argue he is educating because he often visits historical sites and gives some back story on it. You could also argue he is a journalist because he has a running series called "Harald invades" where he'll go into some family's house (with permission of course) and learn about how they live and work (aka. it's a story). Actually most of his videos feel like stories, since it's not over edited garbage with a spin for profit. He just goes through towns and documents the process raw. I would say he is one of the best journalists I've ever seen.
Edit: having replied to another comment, I think I’ve realised something. IIRC The original YouTube license deal with PRS meant that they only sent over video level data - no cue sheets of music tracks etc. They specifically wanted this in their license. So their current implementation might be a remnant of that.
News and educational content actually have quite narrow scope. And those episodes/segments probably wouldn’t fall under that scope.
And then you have to take into account the overall purpose of the channel. Which is not one of news/education.
People watch it for entertainment much like the old Michael Palin travel documentaries. None of which are considered news or educational.
1. The least amount of copyright material as possible should be used.
2. "Fair use" work must have significant new and unique material added (not be a compilation).
3. "Fair use" work must not harm future potential markets for the copyright work. (ex: not a highlight video)
4. Work must be either a parody, criticism, review, or "academic use" to qualify for "fair use".
If we're talking a 10s clip of audio where the original is significantly longer, I think the most significant question is whether the work could qualify under the legal term category of "academic/educational". A work can only be considered "academic/educational" if it meets all of the following (also from stanford.edu):
1. Noncommercial instruction or curriculum-based teaching by educators to students at nonprofit educational institutions.
2. Planned noncommercial study or investigation directed toward making a contribution to a field of knowledge.
3. Presentation of research findings at noncommercial peer conferences, workshops, or seminars.
I don't know the legal muster required to meet this, but from what I've read, this is where "almost all" youtube videos are going to be disqualified, especially by the intent of the rule, which is to provide an out for teachers/instructors and students.
The whole argument is rendered null by the fact that youtube has to comply with the DMCA, which requires that work be taken down if it contains work created by other people (clips, background music, photos), though.
Also youtube seems to have a fairly flexible amount of power here, can take down pretty much any content it wants, and if it chooses to side with the copyright side by default, they have the power to make that consideration.
My opinion is that if you're going to be creating content, and advertising and/or monetizing them, you really shouldn't have any copyright work in there. Saying "it's only 10 seconds of the work" may provide some legal footing for the "must have significant new work" rule, but it seems like you're just drawing an arbitrary line in the sand and saying your side is okay, whereas youtube owns both sides and the whole beach.
This is what the reality is:
These copyright holding corporations are just optimizing for maximizing their grasp on their own recordings within any content whatsoever.
They legally own the recordings. What happens with the recordings is ultimately up to them. If they want to be paid for the use of their recordings, it’s their choice and they are free to do so.
> the maker of the video never wanted or asked for
Let’s flip this on its head... Did the rightsholders ask for him to be recording at a specific moment in time when their content was playing?
No. He made that choice. He chose to record that musical work.
He could have done plenty of things to avoid a recording a copyrighted work.
30-minute (1800s) video plays an 18s of a somg? Mechanical right by song's author to 1% of monetisation.
Used in samling or simultaneously with other copyrighted works? Mechanical split among works.
The percentage might be tweaked -- vieo holder splits 50-50, so songwriter gets 0.5% rather than 1%, in this hypo.
(Total revenue of license period x peak/non peak weighting x duration of song played) / total music duration for license period.
This is something YouTube vehemently fought against. At least in the original 2014 contract with PRS for music.
IIRC YouTube would never send cue sheets (list of included tracks per video) in the usage reporting data. It was just the video title. That was the old deal though - I left before the new deal was signed with ICE services.
Edit: oh, and sampling has its own process. The content creator has to negotiate with each individual rights holder as to the splits when the song is registered.
Which is exactly what these corporations are doing when they buy air time on the radio: part of it is definitely marketing strategy to have that audio be in the background or present in as much places as possible, purely for exposure.
It's something they are actively injecting in our shared/public spaces, basically making ambient sounds "copyrighted", and it's kinda ridiculous they expect to be paid when successful.
I know, this is how copyrights works. But it's a relatively new thing they actually take action when something is recorded that has unwanted background sounds, that the video maker unwittingly recorded, while the copyright holder is explicitly paying to have that sound be playing in the background of as many venues as possible, with the purpose to expose it t as many people as possible.
Also this crazy idea is unheard of (haha pun) in other kinds of media: If one of my graphic designs would be shortly visible in the background of a camera pan ... can you imagine trying to claim even 0.1% monetisation?
But in YouTube's case it is kind of moot since the system isn't designed with fair use in mind and is not technically copyright claims. It's entirely up to YouTube to decide what they do, and their default and only position is to side with the media companies with the expensive law firms over their actual content creators.
The provision for it is to take it to court. That is the only option. There is nothing YT can do if a claim has been made.
So it’s right that there isn’t a counter claim system in place for fair use here.
Whether that is a sensible position for us to find ourselves in is another question.
This seems hard to buy - surely courts are aware that copyrighted material necessarily exists in public spaces? If this guy filmed himself walking around then presumably he filmed all kinds of illustrations on t-shirts, text on signs, people whistling to themselves, etc. Wouldn't the copyright owners of all those things be able to make the same claims as the owner of whatever was playing on the radio?
If the law works the way you're describing here and in replies, it sounds like every video ever made in a public place would be one long string of copyright violations from start to finish.
If it’s Someone whistling an on the fly melody then that’s fine. The musical work isn’t registered as being copyrighted. It’s just some bloke/lady whistling. So that doesn’t count and is totally fine.
If they were whistling a popular tune, well, that’s getting into the whole idea of arrangements. They’ve created a new arrangement of the musical work, which might be copyrighted. Depends on context with arrangements.
If this were a holiday video he shared with friends and family, it would totally fall under fair use. He’s not making money off the back of it.
As to all the other signs etc, no idea. My background is music copyright.
I don't follow. Can any reasonable person really suppose that a 30 minute travel video's ad revenue might be materially affected by the presence or absence of a random ten second snippet of a random song at some random part of the video, briefly audible in the background (at presumably low quality)?
I'm no lawyer, but as stated the claim seems facially absurd.
The copyrighted work has been included in content that is monetised. The guy is making money and the musical work has some part to play in that.
Here’s a counter example.
Imagine if I recorded Bono from U2 chatting about random stuff between playing live tracks at a concert. But I inadvertently caught the last 10/20 seconds of most songs. I make these recordings publicly available and monetise them.
I was only doing it to catch Bono’s musings between tracks. But people can hear the copyrighted material as well.
Under copyright law, I have made a copy of the musical works (mechanical right) and have made them available for consumption (performance right).
Just because I only caught snippets doesn’t matter. It might affect the amount of money I need to pay rightsholders, but there is copyrighted material in those recordings. So the rightsholders should be remunerated.
That’s it. That’s the whole fundamental point.
I understand that a lawyer for the music owner could conceivably argue that claim, and that a court could conceivably agree with it. I'm sure everyone in the thread agrees on that.
What I'm questioning is your presenting "he made money from the music" as a clear fact, and not something a court would decide - suggesting that the presence of audible music necessarily guarantees that theft has taken place, no matter how strong the arguments to the contrary. It's hard to believe the law on this famously contentious topic would be that simplistic.
He could have:
* scrubbed the audio
* removed the section including the musical work
* overlaid a royalty free musical work to replace the copyrighted one
* asked the market vendor to turn the radio off
* waited until the radio played a work that was not copyrighted
* etc etc
He’s chosen to include copyrighted material in his content by not doing any of that. Some of which would have been relatively simple to do.
In court I would think it would be difficult to prove there was nothing he could have done to remove the offending audio.
And he also falls foul of Fair Use (there’s another comment somewhere that digs into the definitions of educational content in this case) as this is not incidental usage.
If he falls foul of Fair Use, then regular copyright laws come in to play, which takes the simplistic binary viewpoints:
* Is there copyrighted music or not?
* Is money being made from the use of music or not?
Yes to both => remunerate rights holders.
> He made money from his content. His content included a recording of a copyrighted work. Therefore he made money from that recording. It’s that simple
That's your position; mine was that there are strong arguments against that claim (I listed several), and no apparent reason why a court wouldn't consider them.
(Note that I'm not claiming the arguments against your claim are correct - I haven't even watched the video. I'm saying that whether infringement occurred is not a simple matter that can be determined by algorithms, as you've presented it. It's a nontrivial legal question that a court would need to rule on.)
> He could have: [removed the audio various ways]
I don't know why you've argued this. Of course he could have removed the audio, but what does that have to do with fair use?
Scrub the audio? I don't think he's going to go in there and literally separate and remove the song's frequency from his voice which are interweaved together. Something like that takes a tremendous amount of knowledge and time and always comes out sounding bad because any time you remove shared frequencies it'll make your voice sound very choppy and robotic (I know because I've done things like this). His job would slowly become being an audio engineer instead of a traveler.
Overlaid a royalty free musical work to replace the copyrighted one? Not possible, his voice and background audio is on the same track. To do that would essentially mean muting the entire track. This is the easiest option and often what he does. He just cuts it or mutes it, both of which makes his video content worse.
Asked the market vendor to turn the radio off? He often does this in closed stores where he plans to spend a bit of time in, but it's unrealistic to expect anyone to do this in an open outdoor market with ~200 vendors spread around everywhere for 1,000 feet in every direction. You're asking to basically shut down the whole market and control every audio source while you walk around. Not happening for a regular person.
Waited until the radio played a work that was not copyrighted? Not possible due to the above reason but this is also a little more unreasonable because there's no reasonable chance a regular person will be able to determine which songs are copyright and which are not, especially not in another country where they don't even know what song is playing. Also by the time he researches the song (assuming he somehow figured out how to even determine if it's copyright or not), chances are a different song would be playing and now he's stuck in a research loop for the rest of his life, or ends up in an another infinite loop waiting for a copyright free song.
Yep it's both low quality and low volume. It's hard to apply exact numbers but let's say speaking volume is an 8 but the background music is at a 3 or 4. It's present and loud enough to make it out but it's not crystal clear. Quality wise it suffers because it's not a direct audio input into the video. It's being picked up by a small positional mic from ~50+ feet away.