Blurring the copyright lines

POSTED BY Rick Shera
02 September 2013

posted in | Intellectual Property | Copyright



A group of Auckland Law School students - Adelaide Dunn, Olivia Lubbock and Zoe Ellwood - have created an excellent parody of the Robin Thicke Blurred Lines video.

So, apart from being proud of students of my alma mater, why discuss this here?

Well, it raises the thorny copyright issue of parody and so is fair game. Or should I say fair use.

You see, YouTube's ContentID system appears to have matched the backing music to the original and automatically taken it down. There are masses of Blurred Lines parodies out there so I can't imagine it was for inappropriate content, but, whatever the reason, it does allow me to discuss the copyright issue.

[Update: As of Tuesday 3 Sept, the video has been put back up on YouTube on the SupershortComedy Channel. It now seems clearer that the original takedown was due to an inappropriate material call by YT and by tagging it R18 it has been allowed back up. Will be interesting to see though if there is any copyright fallout].

In copyright terms, in the US at least, there's a strong argument that, as a parody, this comes within the fair use exception to copyright, which YouTube also helpfully explains (I'm not a US attorney so you'll have to make your own assessment of how accurate that is).

What about reinstating the video, if that is the case?

For some time after the ContentID system started, it was difficult to have non-infringing material reinstated but last year YouTube implemented a dispute process.  Ultimately, this ends up hooking into the DMCA notice and takedown regime, which, although not perfect by any means, does at least afford a counter-notice procedure.

I wonder if the New Zealand law student creators of the parody video above will be availing themselves of the dispute process? Not a bad copyright law case study for extra credits, particularly if any of them are taking His Honour Judge Harvey's Law and Information technology course!

More seriously though, New Zealand needs to up its game in both these areas.

We don't have an exception in our Copyright Act for parody and satire, unlike the US and many other common law countries. Ironically, Australia got its exception as a result of its Free Trade Agreement with the US, which was otherwise negative for Australia (pdf) on the IP front. Notably, Australia, like the UK and following similar developments in Singapore, is looking at an expanded fair use/fair dealing exception.

But, back here, New Zealand's Copyright Act section 92C notice and takedown provision doesn't allow for counter-notices either.

It is a pity that the negotiation of the Trans Pacific Partnership Agreement has delayed the likely cure of both of these deficiencies in New Zealand.

And, if you were wondering how this post can deal with the issue, we do have a copyright fair dealing exception for criticism, review and current events reporting, which, judging by my twitter feed and the number of news reports on this topic today, this most certainly is.

POSTED BY Rick Shera
02 September 2013

posted in l@w.geek.nzIntellectual PropertyCopyright



COMMENTS (3) Post a Comment

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Hi Richard,

Jurisdictional questions are complicated on the internet but generally, in a situation like this, you'd look at what was being alleged to be infringed. So, if a US copyright work, the copyright owner would certainly be able to take action under US law (and therefore a defence of fair use might be available). However, if there is sufficient connection to another jurisdiction (e.g. New Zealand in this case) it is conceivable that action could be taken here, in which case, the fair use defence would not be available. Hence, there are possibilities of formum shopping where a plaintiff will look for a jurisdiction which is more favourable to its cause. Happens in the defamation area as well, where the UK has been touted as a defamation action friendly jurisdiction.
POSTED BY Rick Shera | Mon 16 September 2013Reply to Comment

Rick - can you clarify: the relevant legislation is US, since it was posted on a YouTube server? In other words, the parody provision does apply because of where it was published, whereas if it was posted on a NZ-based service, it wouldn\'t?
POSTED BY Richard W | Thu 12 September 2013Reply to Comment

Well said Rick. It sounds like fair use to me. Fair dealing is pretty limited, even if it falls within the relevant subject matter (e.g. criticism and review) use of an entire song probably falls outside \"fair\" as the law has been interpreted in NZ.
POSTED BY Kevin Glover | Mon 02 September 2013Reply to Comment