The music industry may be headed for a replay of the tussle it had with YouTube years ago. But this time, the battle could be with Facebook and Twitter over new video-sharing formats that emphasize extreme brevity.
Twitter got a preview of what could be ahead when Prince’s label, NPG Records, issued a takedown notice in March, requesting that the company remove eight videos featuring his music posted on its Vine platform.
Prince’s demand posed several questions with regard to copyrighted material when it comes to these ultra-short video formats. The key one is whether users who upload these mini-clips can legally use copyrighted songs, images or lyrics under the Digital Millennium Copyright Act (DMCA).
Though nascent, the adoption of ultra-short videos is catching on, riding the wave of smartphones that have built-in video cameras. When Instagram, which Facebook owns, launched its video-sharing feature in June, its 130 million users uploaded 5 million videos within 24 hours. Vine said in June that 13 million people have registered to use the video app since its January launch.
Instagram and Vine put strict limits on video lengths: 15 seconds and six seconds per clip, respectively. The goal is to get people to share more videos by making video creation less intimidating, in the same way Twitter opened up the world of blogging to the masses by capping each post at 140 characters.
While these limits may encourage people to create and share more videos, they invoke the same copyright issues debated years ago with YouTube, says Lawrence Iser, a copyright attorney with Kinsella Weitzman Iser Kump & Aldisert.
The first set of legal issues has to do with users who upload videos with copyrighted material. The relevant legal doctrine that would protect users is fair use, Iser says.
The DMCA laid out four criteria for fair use. The first is the “purpose and character” of the video. The second is the nature of the copyrighted work. Music, poetry, photos and movies have a higher degree of protection than content that’s based on such facts as a Wikipedia entry. The third is whether the usage takes away from copyright holders’ ability to make money from their work, either by selling copies of the work or licensing it. The fourth, and perhaps most relevant to short-form media sharing, is the amount of the work used.
“There’s a misconception that if it’s less than six seconds or three seconds, then it’s automatically fair use,” Iser says. “That is absolutely not true.” Some songs — for example, Village People’s “YMCA” — can be easily recognized with just four notes. Still, brevity can be a mitigating factor, Iser says.
This is important because rights holders must prove they have evaluated the video against the fair-use criteria or risk being sued by the user who uploaded the clip for failing to do proper diligence. “The copyright rules still apply, but because these are short videos, we’ll just have to pay more attention to fair use,” Iser says.
For their part, Twitter and Facebook qualify for the DMCA’s “safe harbor” protection as long as they have a process for submitting takedown notices and respond to those notices-and both do.
What the platforms don’t have, however, are licenses with the major labels and publishers to make money off videos that contain copyrighted music. For now, it’s not an issue, because neither Vine nor Instagram is generating revenue from these videos. Once they incorporate advertising, however, both rights holders and technology platforms arrive at the same crossroads that YouTube did: litigate or license.
National Music Publishers’ Assn. president/CEO David Israelite says the music industry should work with these new business partners. “If these sites monetize videos that contain music,” he says, “they will need licenses.”