A&E Goes To Court To Defend Fair Use Of 12 Second Clip Of Music

from the this-should-be-interesting dept

Fri, Aug 28th 2009 6:00pm — Mike Masnick

Avatar28 points us to a potentially interesting lawsuit over whether or not A&E's decision to use 12-seconds of the song Rocky Top in part of a TV show is fair use. The article is actually pretty comprehensive in laying out all the details in the case. A&E was doing an episode of the show City Confidential about some contract killings in Knoxville, Tennessee. In setting the scene, the show presents quick clips of scenes around Knoxville, including a photo of a UT football player, with the 12-seconds of the song playing in the background. The song Rocky Top is apparently one of (a few) official state songs in Tennessee and is the "unofficial" fight song of the University of Tennessee (which holds a special license to use the song).

A&E claims that it's fair use, since the music was being used in part as a news report would use it. The article compares it to both the recent case where John Lennon's Imagine was allowed in the movie Expelled without a license... but also to the infamous Bridgeport ruling that basically said fair use doesn't apply to music at all. Some will say that A&E's case is also weaker because it had approached the children of the songwriters (who now control the copyright) about a license, and then never got one, but that, alone, doesn't change the fair use calculation.

This is one of those cases that really could go either way. As a strong believer in fair use, it shouldn't surprise anyone that I think this is clearly fair use, and that the four factors of fair use support it (as should common sense). But, others will surely make the case in the other direction. The thing that I wonder is how allowing such a use could possibly be a bad thing for the copyright holders. It seems like one of those cases where copyright holders are suing just because they have the copyright and think that, because of that, they absolutely have to sue. Either way, kudos to A&E for standing up for fair use.

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Filed Under: a&e, copyright, fair use, music, rocky top, tennessee

17 Comments

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scarr (profile), 28 Aug 2009 @ 7:17pm

I'm glad to hear someone standing up for fair use. It's too bad it's for such a limited application.
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PRMan, 28 Aug 2009 @ 8:40pm

8 seconds
For whatever reason, right or wrong, most broadcast outlets limit themselves to a "universally accepted" 8 seconds of music or less. Since this has become "industry standard" A&E may have a tough time.
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Trerro, 28 Aug 2009 @ 10:11pm

Minor RSS glitch
FYI, in your RSS feed, the title of this article is:
A&E Goes To Court To Defend Fair Use Of 12 Second Clip Of Music
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Drew (profile), 29 Aug 2009 @ 12:27am

The things wrong...
First off A&E's case is not necessarily weaker because they approached the copyright holder's (which in my opinion should expire upon the passing of the creator); this is easily argued by the defense as a friendly action to forestall any such spurious lawsuit (given that a license is generally cheaper than having to defend a use.)

Second they were attempting to accurately portray a UT football player in a news type of way which seems pretty strong to me.

Anyway, since I don't want to point out faulty logic, the best part of the entire article is that the copyright holders believe that this "unlicensed use could hurt their ability to sell it in the future" (quote of the article not the individuals); this seems like an absolutely crazy argument as a 12 second segment is more likely to generate more interest in the song rather than dis-interest. Or are they worried that this 12 seconds will be uploaded online and distributed without their license?

Now to revisit something I stated earlier. Why is it that someone creates a work and then dies does their copyright still exist? Since copyright is "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries", where in there does it speak about the Authors and Inventors heir's? Further where does it speak that this right can be sold, given, or taken by another? Can I give someone else the right to speak in my name, my free speech if you will, for 50 years after I have died? It's the same throughout the entire constitution, people take a small section and attempt to say it really meant something completely different than what it says in plain text.
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Drew (profile), 29 Aug 2009 @ 1:42am

Re: Minor RSS glitch
I think you meant to state that it looks like(without the space between A& #03...):
A& #038;E Goes To Court To Defend Fair Use Of 12 Second Clip Of Music
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Anonymous Coward, 29 Aug 2009 @ 2:48am

I think a lot of people don't understand the implications of allowing clips of songs to be played as "fair use". Someone could take this 12 second clip, and then stitch it to another clip with a similar size, then another until they have the whole song without PAYING FOR IT!
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Headbhang (profile), 29 Aug 2009 @ 3:14am

Re:
Uh, right, man... ¬_¬
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originalog, 29 Aug 2009 @ 3:47am

"stitch it to another clip with a similar size, then another until they have the whole song without PAYING FOR IT!"

Lawl are your comments satire? Because that's hilarious I have read others I am not sure about but that made me laugh.

so only after stitching about 15 or so or more if its a long song could I ever have a full song?

I haven't worked that hard for a song since kazaa circa: 1997
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Doctor Strange, 29 Aug 2009 @ 4:20am

Re:
"stitch it to another clip with a similar size, then another until they have the whole song without PAYING FOR IT!"

Lawl are your comments satire? Because that's hilarious

Actually I read a similar idea many years ago, around the time of the Napster debacle. I thought it was from Bob Cringely, but I must be misremenbering. I'm probably conflating it with his Snapster idea(s).

Anyway, this is when Amazon and lots of other places were putting 30-second clips of songs out there so you could hear a sample before you bought the CD. Someone reasoned that if 30-second clips were fair use, then what you would do is create a P2P (or similar) service based around (legal) 30-second clips of different parts of songs. By using simple metadata, the software would stitch the 30-second clips together on your computer to reconstitute a whole song or album. But since nobody would be sharing more than a 30-second "fair use" clip, this would be a Legally Foolproof [TM] way to share music without getting in trouble with those pesky copyright laws.

Of course this probably wouldn't work because the law is not a deterministic computer program and we have judges that can look at this sort of thing and see what the point is. But if I recall right but the person who proposed it was serious at the time, and it was not an attempt at satire.
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Cyanid Pontifex (profile), 29 Aug 2009 @ 11:02am

Re:
But then it would no longer be just a clip of the song, it would be the entire song.
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Brendy, 29 Aug 2009 @ 12:39pm

Re: Re:
They have this already, it's called bittorrent. You could argue you're really only sharing a small portion of the song at any given time, and that's all anyone can DL off of you unless of course you're the only seeder.
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Stephen, 29 Aug 2009 @ 7:11pm

rocky top
While I would normally side with the fair use, in this case, as a graduate of the University of Florida, I think Rocky Top should be locked up so hard that it can never be heard and all those redneck dirtbags in beat up orange and white pickups jerking through Gainesville are arrested and tortured for the "public performance" of blasting it from their radios.
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wvhillbilly (profile), 29 Aug 2009 @ 7:14pm

12 second clip?
Some people are so protective of their copyrights they'll sue over a 12 millisecond sample of their music.

Good grief!
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Frostbite, 29 Aug 2009 @ 8:28pm

Retarded
Nobody with half decent audio gear would even bother with the clips as they're almost always low quality or would have small gaps in them. Stitching them together is absolutely ridiculous, and I realize you could rip it from a higher quality source like a movie, but then where would you get the rest, another movie? What a pain in the ass. Nobody cares enough.
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Marcus Carab (profile), 30 Aug 2009 @ 10:34am

Re:
Even a case with an extremely narrow scope can result in a hugely influential legal precedent, so you never know.
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bigpicture, 30 Aug 2009 @ 2:45pm

Re: The things wrong...
What is your expectation? That something sane and sensible is going to come out of any US court? Especially when they might involve a high IQ jury.

Take a look at some of the recent rulings, then apply a sane and sensible benchmark. US Justice is a Vegas crap shoot at best, and a joke to the rest of the world. Personally if they gave this choice, I would prefer a coin flip to having to prove my case sanely and sensibly in any US court of law.
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Anonymous Coward, 31 Aug 2009 @ 12:00pm

Re:
I'm dead serious! Also, I agree about charging taxes at people that have music playing in the background when you call them on the phone. Someone could use the background noise and run it thru some of that fancy sound editing computar and save the original music to a CD.

Ever watched CSI Miami? "Isolate the music track please! Remove the noise!" Click click click "It's done chief!"

Think of the musicians.
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