Copyright VS Trademark

[tpajet]

This is from a question on another forum I'm on. I just want to verify that I'm thinking along the right lines.

One of the guys had posted a YouTube video, and some of you may be aware that YouTube has started ditching audio on videos that have copyrighted songs in them, even if it's a small snippit. They haven't done all of them, but that's another debate.

Anyway, an analogy that is being used on YouTube by those opposed to this is Andy Warhol's painting of a Campbel's soup can. They say that violates a copyright the same way.

My thinking is that first of all, the can of soup is trademarked, not copyrighted. And since Warhol didn't use it to market soup, it's not the same. I'm thinking it wouldn't be any different than if I took a picture in a grocery store, and I happened to catch a can of soup in the background, it still wouldn't violate anything if I posted that publicly.

 

[Michael Wechsler]

1) There is a huge distinction between the two situations, besides the issue of #2 below. With the YouTube videos, the actual songs are being used. Andy Warhol didn't use the actual artwork (in the case of music there is a bit of a distinction from visual art since there are different copyrights in music - the song composition and in the recording, the latter of which is being directly used and infringing.)

2) Campbell's is a trademark. Who said that they can't also own a copyright on the label as a "work of authorship?"

3) Who said it wasn't infringement that just wasn't acted upon by Campbells, realizing that it was more beneficial to let the artist "praise" the company through his art than in suing for infringement?

4) The Fair Use Doctrine doesn't allow unfettered use just because you're having fun. The key with YouTube is that they don't have to care either - they can decide whether or not they want to be sued so that a court can determine whether you're right about the video being a result of fair use.

 

[tpajet]

Looking at #4 a bit further, YouTube hasn't pulled down everything that has a possible infringement. From what I'm seeing it looks like Viacom is involved. Of hand I don't know if they own part of YouTube, but it seems to be their interest that are involved. So maybe they got a C&D of some sort from Viacom legal.

Here's a related question. If I do a wedding video for someone, and at the reception I catch the songs being played, (for example the first dance, etc) would there be an infringement since copies of that video would be given to several family members, and if so who's doing the infringing - the videographer or the client who hired the videographer?

 

[Michael Wechsler]

That's a very good question. My first thought would be whether you would even quality under the YouTube rules (which state, if I recall, that everyone in the video, has provided consent to its distribution.) Let's assume that doesn't apply - with regard to infringement on YouTube, the uploader is the infringer for that distribution. Whether or not playing the songs without paying royalties or recording same is infringement, the issue on YouTube is the upload and distribution of the video.

 

[rebirth5450]

This is an interesting topic and I am a user of youtube, I mainly use it for Vlog's, which are kind of stupid but they pass the time and give me something to do.

Ok let me ask a related question, and it might be similar to the OP's last question.

If I make a Vlog or video blog and use my own commentary and words, just talking of course:

1) Am I breaking the law or copyright if I have music playing in the background on a computer or home stereo? Again, not meaning I'm adding music to the video's, it's just playing behind me in the background.

2) If I say song lyrics, not singing of course, but just say a line or two, am I infringing on the original owners rights? CR/TM?

 

[Michael Wechsler]

1) It's a good question. Take a look at the big controversy with regard to Conan O'Brian playing a song on the Tonight Show and the cost allegedly generated. But this isn't intentional and can probably fall under the "Fair Use Exception" to Copyright and you wouldn't be required to pay anything. This is just my gut feeling, obviously nothing is for certain unless a court of law says so but given the lack of commercial nature, fact that the work is clearly not important to the whole (and unintended), etc.

2) This is a better question. If you're just doing it for fun on YouTube, it arguably falls within the Fair Use Exception. Given the nature of the video and the fact that it would be abhorrent to the public if you were sued, regardless of whether there was a technical infringement of copyright by yourself, being sued would never happen. Doesn't make sense for the copyright owner to do so, at least IMHO. However, if you were a professional performer, promoting your band and album... now we are talking about a publication of a public performance - that's a different story.