Are videos of wedding ceremony's fair use?
July 27, 2011 3:00 PM   Subscribe

I uploaded a video of our wedding ceremony to Youtube. Our recessional was "Love Story" by Taylor Swift. Youtube informs me today that I have "infringing content". Do I have a leg to stand on to claim fair use?
posted by TrueVox to Law & Government (21 answers total) 1 user marked this as a favorite
No, post it on vimeo and you should be fine.
posted by TheBones at 3:01 PM on July 27, 2011

Response by poster: I should have noted this above, but I realize that it goes without saying that I should get a lawyer... but I'd at least like a general idea, as I can't afford to do that - if needed I'll just pull the video instead.
posted by TrueVox at 3:02 PM on July 27, 2011

I realize that it goes without saying that I should get a lawyer

Actually, this is about the last thing I would spend lawyers' fees on. There are plenty of free video-sharing services online. Use another one.
posted by Dasein at 3:03 PM on July 27, 2011 [5 favorites]

Response by poster: Thank you both, but that doesn't really answer my question. I realize there are a ton of options for sharing video. I'm just curious if this qualifies as Fair Use. It's the principal of the thing.
posted by TrueVox at 3:04 PM on July 27, 2011

Are you seriously wanting to try and go up against google to post a video? If that's how you want to spend your time, go for it.

According to their website, though:

Do you own ALL the necessary rights to your video (this includes, but is not limited to, audio, video, images, and text)?

If not, filing a counter-notification may not be appropriate for you. However, you may contact the content owner directly in search of a retraction of their claim. For instructions on how to request a retraction please go to the Retractions page.
posted by TheBones at 3:06 PM on July 27, 2011

Definintely not fair use. Don't waste money on a lawyer. Just because it's not commercial doesn't make it legal. The best you could hope for is the label allows it to stay but adds a link to buy the MP3.
posted by fishmasta at 3:08 PM on July 27, 2011 [1 favorite]

The principal will be hefty lawyers' fees. The principle will go ignored. Is it what most people would consider fair use? Probably. Is it what the RIAA thinks is fair use? Nope. Is it what the court thinks is fair use? Maybe, how much principal do you want to spend on principle?
posted by entropicamericana at 3:08 PM on July 27, 2011 [5 favorites]

Best answer: It's a bit petty for them to be taking down a wedding video, but no, this isn't Fair Use. "Fair Use" doesn't merely mean "I'm not making any money off this." I think Andy Baio did a great job explaining the concept during the recent Kind Of Bloop trouble.
posted by queensissy at 3:11 PM on July 27, 2011 [4 favorites]

Response by poster: Hmmm... perhaps I have not been clear. I'm not trying to "go up against google". Claiming to be the copyright holder for "Love Story".

What I'm TRYING to do is gauge whether this would be considered fair use. If the general feeling is that yes, it is, I may just attempt to dispute it.

And... it is seeming that the general feeling is "no". Which is weird. But what ever - music law has been messed up for a while around here.
posted by TrueVox at 3:11 PM on July 27, 2011

Best answer: IANAL. However: you probably need to obtain a sync license for the song.
posted by misterbrandt at 3:11 PM on July 27, 2011

As others say, not fair use and no leg to stand on. Upload it somewhere else.
posted by mykescipark at 3:11 PM on July 27, 2011

Response by poster: Blast. Third sentence should be "I'm not claiming to be..."
posted by TrueVox at 3:12 PM on July 27, 2011

Response by poster: OK, yep. I'm all good. Well, no I'm not. I see that our laws are trash in this country. But my question has been answered.

Thank you all!
posted by TrueVox at 3:14 PM on July 27, 2011 [2 favorites]

Do you own the rights to the song.

If not, then whatever record label does can request it be removed from the video you posted to youtube.

Take some time to look through youtube's fair use policy that I linked to above. It will answer most of your questions.
posted by TheBones at 3:14 PM on July 27, 2011

You might want to read the "Common Misunderstandings" portion of Wikipedia's "Fair Use" entry.
posted by misterbrandt at 3:15 PM on July 27, 2011

Did you include the entire song? If so, then this is unlikely to be fair use. There are four factors to be considered in deciding whether something is fair use.
1. What is the character of the use?
This is nonprofit use, but it's hard to call it personal use anymore since you put it up on the internet for the whole world to see. This one doesn't really help you very much.
2. What is the nature of the work to be used?
Entirely creative, non-factual work. This is very much not in favor of this use being fair.
3. How much of the work will you use?
Sounds like you copied the entire work. This also tends to make this sort of use not fair. If you used only a small portion of the song, then this would be very different. Compare with Lenz v. Universal Music Corp. where only a few seconds were used.
4. If this kind of use were widespread, what effect would it have on the market for the original or for permissions?
You avoided purchasing a mechanical license in the existing market, publishing it freely on the internet provides a source of the music for other people to avoid buying the single, and there aren't any mitigating factors that make it hard to find out how to get permission.

This seems pretty clearly to not be fair use.
posted by grouse at 3:23 PM on July 27, 2011 [8 favorites]

Response by poster: It was not used in it's entirety, my wife and I will NOT be the only ones watching it - I'm actually under pressure from a number of others (including her school kids who we did not invite to the wedding).

Also, this question is answered, so thank you for your time. I require no further advice.
posted by TrueVox at 3:38 PM on July 27, 2011

It was not used in it's entirety

That could change things quite a bit, then. If it was only a few seconds, then it might be fair use.
posted by grouse at 3:49 PM on July 27, 2011

I see that our laws are trash in this country.

Your hyperbole is showing.

There's not really any value to the question "is this fair use?" because fair use is an infringement defense you bring up when you're being smacked down in a suit. Fair use is (deliberately) poorly defined. It's meant to be somewhat of an escape valve in court to discourage rights holders from going after folks who have legitimate reasons to make use of their intellectual property - nobody wants to spend a bunch of money going after someone just to be thrown out on their ear because of a fair use defense. So well-defensible use (say, an excerpt from a book in a review) is more likely to preempt attack than a less concrete purpose (like using a song in a video of an activity that doesn't meet any tests posted above and with no more licensing payment than the $1 paid on iTunes).

You're free to believe it's unreasonable that people who create & record stuff don't have a right to demand compensation for the use of their product in additional venues. Certainly it can be a little nuts - wanting you to pay again to use a snippet of a song as your ringtone when you have already paid to listen to it on the same song-playing-phone. However it can also be pretty reasonable - wanting you to pay to use the song in your commercial selling a Prius even though you paid a dollar to buy the song on iTunes. I don't love the state of copyright in the US but you're cutting a wide swath here in your condemnation. Yes, sync rights are a massive pain but there's some valid reasons for them to exist.

Now, that aside, how about I answer the question I suspect you really have here - how can I get this video up with this song in it without being financially screwed or having it yanked off?

Two ways.

One, the somewhat sneaky way where you try to get past Google's detection.

You can edit the video so that there's 30 to 60 seconds to it before you get to the song. The general chitter-chatter is that YouTube's automatic infringement detection junk doesn't scan the full length of every video, only the first chunk.

From what you describe of the video it may be they've expanded their scanning and you may need to fall back on the second approach - making sure the first 30-60 second of the song aren't in the video. Conjecture is they don't do well at detecting anything other than the opening bits. This may not be a very useful approach for you since you probably don't want to mute just a section of the song and leave the rest.

The way that seems to always work on YouTube - at least I can find videos using TS songs that have been there for months - is to shift the pitch. This video, for example, does it and they even comment in the comments that that is why its like that. This comment gives a quick tip on doing it to a song. It's more complicated for you since you would need to massage the audio track on an existing video but it's doable for someone with some minor skill.

Any of these may or may not work. Repeatedly trying it might get you smacked down by YouTube. I don't know. Personally I'd take some above advice and just try a different audio hosting service that doesn't do this industry-friendly scanning like YouTube.

Two, the more finicky and less free but sure to not need to be redone way. Go pay $2 and be done with it and select something that is somewhat in the spirit of the song you actually used. Get someone with some video skill to overly that chunk of audio on your movie with the licensed song.

Yeah, it's a drag and it boggles my mind the music industry hasn't just allowed Google to offer some sort of licensing system via YouTube. But it's their stuff and they have a right to say how it'll be used. The fair use defense might shield you if anyone decided to sue you but it doesn't obligate Google to let you host your video there - they're free to be cozy with the industry and take stuff down.
posted by phearlez at 3:59 PM on July 27, 2011 [18 favorites]

IANAL, FWIW, etc. I have a handful of personal videos up on YouTube that use songs from major-label releases, though none of the artists are as big as Taylor Swift. I didn't purchase rights to them, and after a few months I also got the "your songs have infringing content" note. I didn't do anything (not out of a stick-it-to-the-man gesture, as I like those artists -- I was just busy and figured I'd take the videos down if YT actually requested that). Anyway, now those videos each include a note that says the name of the song and artist and provides a link to buy the MP3 at the iTunes Store, Amazon, and/or eMusic. I assume the labels are content with some small-time videos including their music as long as there's a link to purchase it. Your video mileage may vary.
posted by lisa g at 5:44 PM on July 27, 2011

No, it's not Fair Use, unless you're saying your wedding was a parody, critical or commentary use.

Fair use is a copyright principle based on the belief that the public is entitled to freely use portions of copyrighted materials for purposes of commentary and criticism.
posted by Ideefixe at 5:52 PM on July 27, 2011

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