Let's talk about how this issue has effected each of us. We also need to consider how it has possibly effected the people who actually created the series. They never intended to harm any of these content owners. How would you feel as a cast member/writer when what you created has suddenly become subject to the whims of someone else? Certainly, they may have been in breach of copyright, but to what extent? Did it endanger the livelihood of the content owners? Has the careers of John Williams or Led Zeppelin been destroyed by this?
SCTV on DVD Campaign
Editorials
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Agree or disagree with what I have to say? Pass along your comments by sending them via email. If you want, I can even post your comments here. Feel free to write your own editorial if you wish and I will post that here, too! It's important for everyone to weigh in on this issue. Thanks.
Editorial: November 19, 2006
Fair Rights Thread on HTF Closed
I had started a thread on Home Theatre Forum entitled Copyright, TV shows on DVD and Fair Use Rights. I have only stated the facts regarding Fair Use Rights. Apparently, the people at Home Theatre Forum see my thread as some kind of threat. On the surface it seems that the DVD and Home Theatre industries are attempting to squash any discussion of this topic. See for yourself at Home Theatre Forum. I feel violated that my right to speak freely on this topic at HTF has been silenced. Was HTF being fair? It will not surprise me if this thread is completely deleted!
It seems to me that the people at HTF are concerned that advertisers and people in the Motion Picture Industry are not going to take too kindly to people actually becoming aware of their Fair Use Rights. Fair Use rights are legally granted to everyone. However, the few people I spoke to at HTF knew nothing about Fair Use and music used in TV Shows. Their knowledge of the topic was very limited. From where I stand, I think it is important for people to know about their rights to Fair Use. Now I cannot discuss this topic at HTF. Does that sound constitutional to you? Does that sound like a democracy? Did HTF respond to my postings fairly? Please feel free to let me know what you think by posting a message in the Guestbook or passing along an email.
Editorial: Thursday, November 16, 2006
The Battle over SCTV: Copyright and Fair Use
Since I began this campaign, I have done a fair amount of research into copyright. I do not pretend to be an expert on the subject. However, from the research I have done, it looks as though SCTV may indeed have claims to "fair use" of copyrighted music that they used throughout the series.
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 a parody, then on the surface it would seem that SCTV does indeed 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.
It is quite clear for most people, I think, that SCTV did not use their music strictly for profit. After all, they believed that their show wasn't been seen by anyone and lived in a creative vacuum, creating what they liked and thought was funny. The first of the four factors is obviously 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 give work.
Since it was never SCTV's intention to use 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 that 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 Shout! Factory had for clearing music, litigation to determine "fair use" rights could conceivably drag on for months. Maybe even years. Content owners like Led Zeppelin have deep pockets and I am sure, the legal council to go along with it. They could drag on court proceedings for such a long time that the costs would outweigh the benefits several times over. Although SCTV could conceivably win against a big fish like Led Zeppelin, 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.
The situation for SCTV is obviously better than for many shows. WKRP in Cincinnati may never see DVD or TV again, since even more music was used throughout and not always in a parody sense. What does need to happen is 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.
There has even been a Conference on Fair Use to put forth clearer and more distinct guidelines governing fair use. However, these conferences failed to come to a general consensus on what those guidelines should be.
Another important point I would like to make is that Shout! removed the song "Stairway To Heaven" from the series, fearing a lawsuit. No one can blame them for that. However, it is most disturbing that giant car companies are now using music by groups like Led Zeppelin. The most irksome point is that the use of "Stairway To Heaven" on SCTV can easily be seen to be a parody, which conceivably falls under the guidelines of "fair use". However, when a car company uses music by Led Zeppelin, it is for profit. Since car companies can afford the high fees demanded by groups like Led Zeppelin and The Who, it is very easy for them to get the use of such music.
In other words, 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, no one has stated that there are such fair use rights and I believe that most 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 in order to protect ourselves.
Some Good Links
Fair Use Page at U.S. Copyright Office
Fair Use page at Wikipedia
Center for the Study of the Public Domain
Editorial: Sunday, October 29, 2006
Okay, I will admit my SCTV on DVD Campaign hasn't exactly had a great run. What I want to know is what other SCTV fans would have done. I would really like to hear your comments good and bad and suggestions. After all, we are all SCTV fans and want what is best for the show and for fans in general.
I have been in touch with people from Shout! Factory. I was asking them to post a statement on the site endorsing the campaign. I would have thought that Shout! would have found it in their best interests to back the campaign. I believe that music alterations have had an impact on sales. According to the person I spoke to, the final word goes to the content owners. They said "no"... no surprises there. Nothing ventured, nothing gained.
It is my belief, that as consumers of the product, we deserve to have our say. In other words, the powers that be have decided for us what we must accept. That is not a democracy. In a democracy we have the right to say something about this issue beyond our wallets. Copyright is not only meant to protect the content owners, which is a concept I have no arguement with, but also the right of others to freedom of expression.
The person I spoke with at Shout! agreed with me about this issue. Even Shouts hands are tied. I also approached the Second City to see if they could support this campaign. So far, there has been no official response.
Are we as the buying public asking too much? I truly believe the answer is no. The product is supposed to be produced for us, but this system does not necessarily mean that our interests are protected. There is no legal onus on DVD Studios to place a message on the outside packaging of DVDs wether or not they are musically edited. There is also no law setting a limit on how much a content owner can ask for use of their material. Does Led Zeppelin deserve more than an obscure writer who is unknown? Given the nature of the business, groups like the Beatles and Led Zeppelin are probably told all the time that they have a position of "entitlement" to more money.
So, fans so far have stated that content owners have all the rights in the world, but have not expressed what our rights in the matter are. We need to be more educated about this entire issue. Right now, SCTV appears to be dead in the water on this issue, but what about 3 years from now, or even 10? Will the situation improve for TV Shows on DVD?
There are many who feel that copyright law should be ammended to be more favorable for people to use pieces of other peoples copyrighted works. Some feel that copyright law has completely outlasted its welcome and should be done away with altogether. What do you think?
Your comments please,
Thank You.
