Artist + Record Label + YouTube + UGC + Promotion + Copyright Law = …Confusion? – by “Mark B”

On September 12, Lady Gaga picked up eight awards at the MTV Video Music Awards in Los Angeles.  She is arguably the first real superstar musician of the digital age.  She continues to tour relentlessly, capitalizing on the tremendous wave of commercial success that she is riding and, in doing so, is working hard to ensure her continued ubiquity.

Her acceptance speech for the ‘Best Female Video’ award was, typically ludicrous costume aside, especially notable for one line in particular.  After thanking various parties for their assistance and support in producing the video, she makes a point of paying special tribute to “all the gays for remaking this video over and over again”:

MTV VMAs 2010 – Lady Gaga Best Female Video Acceptance Speech

Of course, it’s not just “the gays” who have provided a take on the song in question.   A simple search for the phrase ‘Bad Romance’ on YouTube returns a veritable slurry of user-generated content uploads from an intriguing blend of celebrities (Joseph Gordon-Levitt), other bands (30 Seconds To Mars), acapella groups, aspiring singer songwriters, the kids from the TV show “Glee” and various groups of individuals of all shapes and sizes parodying or paying tribute to (depending on your interpretation) her version of the song.

Harmless, right?  Well, it essentially depends on your interpretation of “fair use”.  The question of whether or not each of these unauthorized video posts that are now all over the internet constitutes a breach of copyright protection is the subject of a degree of legal ambiguity.  Amongst the considerations for determining what constitutes “fair use” listed under the Copyright Act is a clause that allows consideration for the “effect of the use upon the potential market for or value of the copyrighted work.”  This is a somewhat subjective measure of determination.

Having worked for two major record labels, with a number of recording artists and a corporate law firm to date, I can just imagine the mixed reactions that each party might have had to Lady Gaga’s expression of thanks to those who have remade her song and shared it on the Internet.  Some will see it as a straightforward breach of copyright (artist or record company owns copyright, user makes public his own version of the song without permission from the copyright owner thus breaching copyright) but taking legal action against such users might come at the expense of a degree of promotion for the song in question.  After all, the viral nature of such videos undoubtedly adds to the aforementioned ubiquity that such artists as Lady Gaga enjoy in the digital age.

How then do you reasonably draw a distinction between those user-generated videos that help promote the song, increasing demand for it, and those that might instead have a negative effect on demand or that might be more damaging to the artist’s reputation more generally.  Should it be the copyright owner’s right to decide?  Should record companies step in to play the role of ‘monitor’ on behalf of the artists that they represent?  Should an artist be encouraging such user behavior?  Should Lady Gaga (given her 6.3 million Twitter followers, 18.2 million Facebook ‘likers’ and audience of 11.4 million at the VMAs) be advocating her view on the issue given that other owners of similar copyrights (such as Prince, as detailed in the case of Lenz v. Universal Music Corp.) might well not feel the same?  Should the law draw up a more concrete definition of “fair use” to set a blanket standard or should the determination of “fair use” remain circumstantial?  Who is right?  With whom should responsibility lie?  You decide…

2 thoughts on “Artist + Record Label + YouTube + UGC + Promotion + Copyright Law = …Confusion? – by “Mark B”

  1. First, I don’t believe anyone should not state their opinion just because others may disagree. It’s perfectly reasonable that Lady Gaga voiced what she perceives to be helpful.

    Second, I believe there is a reasonable question here of what is free advertising and what is damaging copyright infringement –in the sense that there could be losses attributed to copyright infringement. Grant it, there is no established necessity for damage to come from copyright infringement, if we take the law at face value, but I would argue that it is presumed to be [damaging].

    It seems ad hoc to leave the fair use determination as circumstantial, but defining it as anything more will take extremely strong decision makers, who aren’t afraid of upsetting the mega-money music industry; so, it likely will remain circumstantial. Personally, I would like to see some standard guidelines developed to protect unsuspecting/innocent promoters of songs (for example) being sued for infringements that more than likely actually helped a song’s popularity. There must be a line; but there also must BE a line. How can you cross it if one hasn’t been clearly established? …Or better yet, is established but flagrantly disregarded for some, whereas not for others?


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