In what has been described by some as over-zealous enforcement of copyright, BMG (the large German publisher) forced YouTube to take down a Mitt Romney campaign video because it included footage of President Obama singing Al Green’s “Let’s Stay Together.”
The Romney video followed the Obama campaign’s release of a political ad featuring Mitt Romney’s off-key rendition of “America the Beautiful” as underscored to images of off-shore employment out-sourcing. Romney’s campaign used the Al Green song to attack Obama for his relationship with lobbyists and campaign fundraisers. YouTube pulled down the Romney ad after BMG, the music publisher that owns the copyright in the “Let’s Stay Together” composition, filed a copyright takedown notice under the Digital Millennium Copyright Act (DMCA). Not wanting to look like it was playing politics and only targeting the Romney ads, BMG also sent notices to YouTube to take down the original news footage clips of Obama singing the song.[1] The Obama campaign met no similar copyright opposition to its attack ad because the copyright to “America the Beautiful,” first released in 1910, has expired and that musical composition is now in the public domain.
Many copyright (and “copyleft”) experts, such as the Electronic Frontier Foundation, are highly critical of the takedown, calling the political ad footage “the clearest possible case of Fair Use that can be imagined.” Considering the four factors of the Fair Use doctrine[2], how does the Romney video fail to demonstrate a defensible use? The purpose and character of the new use of the copyrighted work is for criticism and arguably a “transformative” use. The Al Green number in the Romney ad is not used primarily to romance or entertain through song, but rather to criticize Obama’s rapport with lobbyists. The nature of the work as an original and fanciful song, rather than, for example, a factual account, favors copyright protection. However, the amountused by the Romney campaign was minimal, a total of 9 seconds, thus weighing in favor of Fair Use. Finally, a video showing Obama singing “Let’s Stay Together” for purpose of political critique would not seem to interfere with the market for the Al Green song. That is unless, of course, audiences got so sick of campaign ads that they never wanted to hear that song again, or never again felt a romantic twinge when it was play.
Improper takedowns happen frequently, leading critics of aggressive copyright application to complain more and more of copyright “misuse” and the sweeping application of the take-down procedure. What large copyright holders may overlook is that, under the law of the DMCA, they are required to consider whether the use they are objecting to may actually be permitted. Filing a DMCA takedown notice alleging copyright violation is very easy, and YouTube is then obligated to take down the allegedly infringing content, if it wants to avoid vicarious liability. The take-down is, in effect, a temporary injunction that probably would not be granted in court against ostensibly political speech. Under 17 U.S.C. 512(c)(3)(A), which lists the procedures for notice and takedowns under the DMCA, a copyright owner must provide a statement, under penalty of perjury, that it has a good faith belief that there is no legal basis for the use of the materials. Had BMC made a Fair Use analysis, would the company truly have come to the good faith belief that there is no legal basis for use of the song either in the Romney ad or in the news clips of Obama singing the song?
YouTube has been caught in the cross-fire of political campaigns before. During the 2008 presidential election, NBC called for YouTube to remove a pro-Obama ad from its website because the ad included “unauthorized” footage of NBC News and MSNBC broadcasts. A few weeks earlier, CBS succeeded in getting YouTube to remove a McCain campaign ad showing then-CBS anchor Katie Couric admonishing Obama. The McCain campaign lost so many of its YouTube-posted campaign ads through the DMCA takedown process that it finally wrote to YouTube lamenting the costs to its campaign.
Should YouTube step in and repost the videos regardless and, much like its famous Stop Online Piracy Act (SOPA) protests, take its own clear stance against over-reaching improper takedown notices? If it doesn’t, then in a true Streisand Effect, BMG may find itself on the EFF’s “hall of shame,” as more attention is generated by the takedown than the video itself might have drawn.
An individual poster who believes the work was not infringing and the notice was in error, or even malicious, does have the option to respond through a counter-notice process. The poster’s counter notice must contain the poster’s signature, identify the allegedly infringing material that has been removed and its previous location before removal, provide a statement under penalty of perjury that he or she has a good faith belief that the take-down was a mistake, and list the poster’s contact information and consent to jurisdiction in that location (i.e., “This is where you can sue me if I’m wrong.”).
In reality, the option for recourse and consequences for making bad faith take down notice are relatively ineffectual. Recall the U.S. District Court for the Northern District of California’s decision in 2010 to side with a mother whose video of her toddler dancing to a Prince song was taken down by Universal Music Group. While Justice Fogel determined the few seconds of Prince’s “Let’s Go Crazy” were indeed Fair Use, the mother would have had to prove that UMG had acted in bad faith in order to collect damages for the trouble of fighting against Universal’s over-aggressive notice. Still, Justice Fogel also rejected Universal Music’s claim in that case that it was unreasonable for Universal to conduct a Fair Use analysis before sending a take down notice. Applied to the Al Green campaign ad, the Fogel analysis may well have allowed the videos to remain.
[1] Notably, BMG has not issued take down notices for the YouTube clips of Al Green singing the song himself.
[2] The four factors the Fair Use doctrine weighs are: (1) the purpose and character of the new use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion of the copyrighted work taken, and (4) the effect of the new use upon the potential market for the copyrighted work.
Lizbeth Hasse
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