The other day I wrote about my first copyright dispute, over a 1931 classical recording that I (legally) posted to Soundcloud. I promised to give an update, but it’s not very exciting: within 24 hours I got a very simple email from Soundcloud saying that they had allowed me to post the track. Yay for Soundcloud! But not yay for Drama.
So it’s up. It’s not even a very exciting clip of music, but it’s up:
Seems like a lot of fuss over a quiet, scratchy minute of 1931 sound.
Even more, I decided not to use the sound clip as posted. If you remember, my reason for uploading it was to use it as a “sonic epigraph” in the introduction of my dissertation, to make a point about the nature of hearing sound as opposed to talking about it. Instead of embedding the sound into the Word file, I thought I’d just host it on Soundcloud and give a link to it there. But for the conclusion of the dissertation, I wanted to share the last minute of the same piece, but this time from a recent recording–which means a recording very much still protected by copyright. But after going through the “defending myself” thing, I don’t want to upload that other clip to Soundcloud, and I don’t want to send readers to one online space for one sonic epigraph and then another space for another sonic epigraph, so I just put them both online somewhere else that wasn’t Soundcloud.
The thing is, I think I’m within my fair use rights to share that final minute (of a fourteen-minute copyrighted recording) in the conclusion of my diss, in the same way that I’m within my fair use rights to share quotations (within reason) in my academic publications. The paradox of fair use is that it’s both awesome and crazy-frustrating that there is no absolute way to know if a use is fair or not until a judge says so. The best we can do is work our way through the four-part test included in U.S. copyright law, perhaps with the help of an awesome tool like the University of Minnesota Libraries’ “Thinking though Fair Use” tool.
But even with the tool, whether or not I can fairly use that last minute of the track is sometimes really hard to tell. Here are a few checkmarks that I wasn’t sure how to check:
- “Criticism or commentary”: I decided not to check this one, as I’m not criticizing the work or the recording itself. In fact, I’m saying, “Hey, let this work do to you exactly what it’s meant to do!” That is, listen to it.
- “Transformative use”: I’ve heard this phrase tossed around in different ways, which has left me unsure when something is transformative or not. The checklist’s description is “creates a new work with a new purpose,” which seems to describe someone singing a cover song on YouTube (more on that below), but doesn’t seem to describe the transformative use implied by my using audio editing software to grab a clip. What if I had added fades? Sped the whole thing up a bit? (How much?) How transformative is transformative?
- “Decorative or other non-critical, non-commentary use”: In some ways, I absolutely want this to be decorative music. But on the other hand, I want it to inspire self-commentary, complex meaning-making. In my dissertation’s conclusion, I ask people to “Listen to it with the weight of this project weighing on it.” That’s kind of critical, kind of not.
- “User owns lawful copy of the work (bought or otherwise legitimately acquired”: I’ve never heard of this as a factor before. (They list it under the 4th factor, “Effect on the potential market value of the work.”) In this case, they’ve got me: I streamed the track through Spotify and used Audacity to snatch the audio straight from my sound card. Sneaky, yes–but if someone has a definitively fair use reason, isn’t circumvention like this justified? For instance, the DMCA allows professors to break DVD copy protection to grab clips of movies to show in class (at least it did the last time I checked). That means that those professors are using all sorts of sneaky software for sneaky actions that in some circumstances would be mad illegal–but which are totally fair in that case. In another situation, I published an audio essay once that used a couple clips from the score to the 1927 silent film Metropolis. The version of the score I listen to was ripped directly from a DVD by some dude who knows how to do that, and thus it includes tracks that aren’t available on the commercial release of the score. Does the availability or unavailability of a track give me more or less moral ground when using that music for another purpose? I didn’t worry about it for the audio essay because I felt very strongly that I was within fair use (for lots of reasons)–but if I hadn’t been, would the source of the music have mattered?
Above, I mentioned YouTube cover songs, particularly because I just read a stellar piece from Wired on the subject: Andy Baio’s “Criminal Creativity: Untangling Cover Song Licensing on YouTube.” (If you haven’t read Baio’s account of the copyright kerfuffle over the cover image for his 8-bit cover album of Miles Davis’s Kind of Blue, you need to get over there and read it stat. Seriously, why read my blog when you can read his?)
In the Wired piece, Baio describes the crazy difficulty of trying to figure out exactly when a cover song on YouTube is illegal–that is, if I’m allowed to pull out my guitar and record myself singing “Cherub Rock” or not. He points out the trouble behind how we treat creative people who are skirting the edges of current copyright law:
But there’s something strange about this begging-for-forgiveness approach to copyright. It’s like driving without traffic signs, only finding out you broke the law when you’re pulled over.
That’s exactly how I felt with the copyright dispute on my Strauss clip: that I hadn’t been speeding, but I was pulled over anyway and had to explain myself. And now, I think I’m still in my fair use rights to upload my second sound clip to Soundcloud, especially since I can list it as private so that no one will stumble upon the link unless they have a direct link to the file, which they would only get from my dissertation. But I don’t want to explain myself to any more cops.
Baio also gives us the real solution to these issues:
The best solution is the hardest one: To reform copyright law to legalize the distribution of free, non-commercial cover songs.