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SCTV on DVD Campaign
Editorials
Editorial: Thursday, February 6, 2019
The Battle over SCTV: Copyright and Fair Use
Since I began this campaign, I have done a fair amount of research into copyright. The problem is that the definition of fair use is a complex one, not easy to define. Even today, the debate as to just exactly what constitutes a "fair use" is not always easy to determine. When SCTV would use music in the series by say, Randy Newman, since the music was used in what seems to be a parody, then on the surface it would seem that SCTV does have the right to use the music under "fair use" practices.
Section 107 of the Copyright Act lists the incidents under which someone may use someone else's work under copyright law, such as parody, criticism, comment, news reporting, teaching, scholarship, and research. The copyright act also lists four factors to be considered when deciding if indeed the use of the content owner's work is considered "fair use".
The Four Factors to determine "Fair Use"
(from the US Copyright Office Website)
1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes.
2. The nature of the copyrighted work.
3. Amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. The effect of the use upon the potential market for or value of the copyrighted work.
The main use of the music used throughout SCTV would most likely fall under the category of "parody" (criticism). The concept of a parody is that it imitates the original work and that it ridicules it. In the courts, judges realize that the nature of a parody will require using portions of the original work being parodied. As a matter of fact, a fair portion of the original work needs to be used in order to make the parody effective and to conjure up the original.
The Four Factors of Section 107
1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes.
I believe that SCTV did not use their music strictly for profit. After all, they believed that their show wasn't being seen by anyone and lived in a creative vacuum, creating what they liked and thought was funny. The first of the four factors seems to have been fulfilled, since the series did not seek large profits from the use of say, Anne Murray's music. The use of copyrighted materials was for commentary and comedic value. I also believe that their use of music had social relevance and said something insightful or meaningful about those they sent up.
2. The nature of the copyrighted work.
The second factor relates to wether or not a given work has been published. Since most of the music that SCTV used was indeed published and part of popular culture, it is obvious that such works can easily said to be subject to public criticism and scrutiny. Our society depends upon expressing an opinion as to the social value of a given work. In other words, artists should be willing to accept any kind of criticism, good or bad. If however, a given work is unpublished, its first presentation before the public usually needs to be a positive one and a parody may actually harm the social impact of a given work.
3. Amount and substantiality
The amount of a given work used is also an important factor in determining wether or not such use may be deemed as "fair". Since SCTV was not using an entire piece of music and in many cases were using music only "fleetingly", this most likely constitutes as "fair use". The less you use of a given work, the greater the possibility of claiming "fair use" for a given work.
4. The effect of the use upon the potential market for or value of the copyrighted work.
The final factor determines wether or not the use of a given work deprives the content owner of income from the music and does it have a damaging effect on a possible market for a given work. Since it seems that SCTV never used a complete piece of music in the series, it is highly doubtful that the court would find SCTV liable. In most cases, SCTV used mere seconds of a piece of music. Also, this would not be enough to deter people from buying sound recordings of the works used in the series. Indeed, SCTV could also be another way for consumers to hear music used throughout the series and be a source of revenue for the original artist. It would have to be proved beyond a shadow of a doubt that SCTV had actually sought to damage the reputation of a given artist and to deprive them of income.
Generally speaking it appears that parodies, which poke fun at or comment on a given work are more likely to succeed in litigation than do satires, which use a given work to poke fun at or comment on something else. "Stairways To Heaven" is obviously a parody, since it pokes fun at the legend that is the song "Stairway To Heaven". In the "Midnight Express Special", Rick Moranis plays John Denver, but the song "Rocky Mountain High" is used in the context of satire, since it refers to drug use.
Finally, it is most important to note that copyright holders cannot make any claims that deny fair use, although this is a common misunderstanding. All copyrighted works are subject to fair use. This is a right granted to the public at large. In fact, fair use rights usually take precedence over the rights of the author!
So, given that SCTV conceivably used copyrighted works in the series as "parodies" and "satires" it is quite conceivable that SCTV would do quite well in litigation. However, there are other factors which I believe have stood in the way.
1. Legal Action
Although SCTV appears to have adhered to the fair use rules quite closely, the fact is that the makers of the DVDs just did not have the kind of money to throw at court proceedings. They could have indeed risked using the music on the DVDs, but the risk also entails that content owners may decide to take you to court. If this happens, the burden of proof falls to you to prove that you did indeed use a given work under fair use laws.
2. Money
Depending upon the budget that is available for clearing music, litigation to determine "fair use" rights could conceivably drag on for months. Maybe even years. Court proceedings could go on for such a long time that the costs would outweigh the benefits several times over. Although SCTV could conceivably win, the high court costs would be too severe.
3. Outcome
In every case, judges are the ones to decide if a given use may be considered "fair". The problem is that the fair use laws can be open to individual interpretation. One judge may see that SCTV did indeed stick to "fair use" rules and may even award damages to the producers of the show. Content owners would then have to pay their legal fees for making them go to court. However, the judge may also find SCTV liable and then the legal fees may have to come out of the pockets of the owners of SCTV.
It is my opinion that the factors governing "fair use" need to be stronger in order to protect freedom of expression for those who want to use materials from movies, books, logos, trademarks and music in their productions. The situation for documentary film makers is particularly frustrating, since they must be very careful not to capture any copyrighted content in their films which might spark litigation or even a lawsuit.
In my opinion, it appears that our society is now in a position where freedom of expression is not being protected enough. If the purpose of copyright law is to promote creativity, like, for instance in a parody of the song "Pants" by Randy Newman on SCTV, is it really working? More and more, I would have to say no. As time has gone on, the content owners have gained a greater and greater monopoly over who can and cannot use their content. In the process, they are unwilling to accept important cultural and social commentary of their work and are leaning more and more towards using their music strictly for profit. If someone has deep enough pockets to pay for the rights to use their music in a car commercial then that is what they are going to accept. At the same time, they are squashing those who would use their music in a "fair use" context.
Since I began this investigation into copyright law and Fair Use rights, it would seem that many people are unaware of Fair Use Rights. There are several greats sites and pages on the internet that explain quite clearly what those current Fair Use Rights are. And Fair Use Rights are granted to the entire public. It is more important than ever that we all learn what our Fair Use Rights are and that we become educated on the subject.
Additional Reading
Fair Use page at Wikipedia
Center for the Study of the Public Domain
