Stand Up For Your (Copy)Right

The platform from which rising artists launch their careers has changed dramatically in the last decade.  Since Justin Bieber opened the door for stars to be born on YouTube in 2008, many unknown artists are turning to social media as a way to gain free exposure.  YouTube is the world’s third most popular website, and is a natural choice for budding artists seeking fame.  One third of teens said being famous is important to them, and teens seeking fame use social media more frequently.  The Internet has changed the way people become famous.  By uploading songs and videos to YouTube, normal, everyday people, who have no connection to the music industry, have a shot at being discovered and signing a record contract.

While some of these hopefuls have become successful, other artists claim they have had their work used or copied by others without their permission.  Katy Perry was accused of stealing the idea for her music video Messages from a YouTube artist last year.  More recently, Seth McFarlane was accused of stealing the character Ted (of the movie with the same name) from a YouTube video.

If you find your work is being used without your permission, there are ways to protect yourself.  First, make sure that you have a copyright over the work in dispute.  Lyrics, melodies, sound recordings, musical compositions, and choreography can all be copyrighted.  However, you cannot copyright your ideas.  Once you create an original work and write or record it, you hold the copyright.  As the copyright owner, you have the right to reproduce your work, prepare derivative works, distribute copies of your work, and perform and display your work publicly.  You also have the right to transfer, or license, these rights to someone else.

Before uploading your music to a website like YouTube, read the terms of service and understand what rights you retain, and what rights you give to the company hosting your work.  When you upload a video to YouTube, you retain your copyright, however, you agree to license those rights to YouTube (along with its affiliates, such as Nintendo, and its parent company, Google).  Because uploading your video grants permission to YouTube, it can use your song or video in a commercial, for example, and the only way to revoke this grant is to delete your video from their website.  Be sure that you did not authorize the disputed use when you agreed to the website’s terms and conditions.

Next, make sure a “fair use” exception does not apply to the copied work.  There are some instances where others can legally use your work, which is called fair use.  Under the fair use doctrine, a news report may feature a clip of your work, other artists are free to make parodies of your work, your lyrics can be quoted for criticism, and your work can be used for research and education.  Section 107 of the U.S. copyright law considers four factors in determining whether something is considered Fair Use.  Courts will look at  1) “the purpose and character of the use,” particularly whether the use is for a commercial or nonprofit purpose, 2) the nature of the work that was copied, 3) the amount of the work copied, and 4) the effect the use has on the value of the work.  There is no explicit limit on what is or is not allowed.

Seth MacFarlane was recently accused of taking the character Ted (of the movie with the same name) from a YouTube video.

If your work is being used without your permission, and a fair use exception does not apply, then you can send a “take down notice” under the Digital Millennium Copyright Act.  A “take down notice” must be in writing, and must: 1) be signed (electronic signatures are accepted),  2) identify the work that was copied, 3) identify the infringing work, 4) contain your contact information, 5) include a statement of “a good faith belief” that the infringing party was not permitted to copy your work, and 6) include a statement that the information you provide is accurate and you have the right to the work that was copied.  You can send this directly to YouTube by filling out a complaint form, or if the infringing copy is not on YouTube, the Federal government maintains a list of contact points for all service providers in the United States.  Once the service provider receives this notice, it must take down the copied material, or else the provider will not be protected under a “safe harbor.”

On the other hand, if your work is taken down because someone wrongfully claims that you infringed his copyright, you can respond with a counter notification.  You will need to 1) sign the counter notification, 2) identify the work that was taken down, 3) include a statement of “a good faith belief” that the work should not have been taken down, 4) include your name and contact information, and 5) state your consent to be sued in Federal Court.  The service provider will send a copy of your response to the individual claiming infringement along with notice that the content will be restored within ten days unless he files suit.

The Internet has not only changed the way a star is born, it has also changed the way in which artists protect their work.  Know your rights.

* Kirsten S. Dowell is a rising second year law student at Wake Forest University School of Law and a member of the Wake Forest Journal of Law & Policy.  She has a Bachelor of Arts in Philosophy from George Mason University.  She thanks her sisters, Kiki, Katie, and Caroline, for their input on this article.