In theory, sure.. But remember that on YouTube, the vast majority of uploaders are not customers, they're the product.
Google is a business and therefore the calculations that go into deciding who to side with in these kinds of disputes doesn't _only_ factor in the law, but also the impact on the business.
In this case, they predictably sided with a fellow corporate entity, like they almost always do. There is no business reason for them to go to bat for a small non-commercial uploader, they're better off just removing the video when a deep-pocketed company complains about it.
Yes but with complexities in general, and a collision with non-copyright issues for deep fakes that starts to get into more unexplored societal/legal territory. First, parody is part of Fair Use, which means that it's an "affirmative defense": in a lawsuit, the burden is on the defendant to bring it up and prove it. That's in contrast to ordinary defenses or arguments around the facts asserted by the plaintiff, where it's up to the plaintiff to prove them to whatever the required standard of evidence is. In practice, that can mean a somewhat higher financial risk and higher chance of losing at the edges.
Second though, parody (and Fair Use) is about copyright and trademark, protecting use of such material for commentary and so on. But use of someone's likeness directly, particularly for someone famous, in order to produce new works is arguably something new that hasn't really been dealt with yet. Jay-Z making a copyright claim definitely seems dubious, and perhaps was done simply for convenience rather then legal strength, copyright disputes are the form in which most take down systems work. I can see arguments both ways for whether copyright would apply at all: in favor, the argument would be that the ML models are being trained via copyrighted works, which in turn makes them derivatives. On the other hand, facts are not copyrightable (in the USA) regardless of effort or source. A counter argument would be that the ML models are merely deriving facts about a person's vocal cord, facial structures and other physical natural characteristics, which then create a factual physical model which can be utilized to produce new works. In that case, all these new deep fakes would be their own brand new copyright (and potentially the ML models themselves not copyrightable). That'd be an interesting legal argument to see hashed out.
But even if they're new copyrights, right to voice & likeness are issues in some jurisdictions and certainly could be argued should be more so as technology makes this easier. I think factors around threat to reputation and so on also are raised in new ways with deep fakes vs remixing and adding commentary to real, existing works (which can in turn be referenced by anyone who sees the parody). Even if there is a disclaimer on the original deep fake, as a de novo work which itself might get spread around without context it's at least different then what we've had until now.
>First, parody is part of Fair Use, which means that it's an "affirmative defense": in a lawsuit, the burden is on the defendant to bring it up and prove it. That's in contrast to ordinary defenses or arguments around the facts asserted by the plaintiff, where it's up to the plaintiff to prove them to whatever the required standard of evidence is.
This is a misnomer.
Fair use is an authorized use, and consequently is “distinct from affirmative defenses where a use infringes a copyright, but there is no liability due to a valid excuse, e.g., misuse of a copyright.” Id. Lenz, 815 F.3d at 1152
No, I don't think so. Fair Use isn't merely a matter of court precedent, it specifically is in the Copyright Act (17 U.S. Code § 107 [1]), the language of which indicates it's on the plaintiff, and subsequent case law does seem to have affirmed that unless you have something further to cite? What you cited right there was Lenz v. Universal Music Corp, a 9th Circuit decision about abuse of DMCA takedowns, and in turn considering the "under penalty of perjury" aspect of the DMCA not "Fair Use" as a defense in general. The quote you gave was in the context of §512, Judge Tallman wrote that §512 "unambiguously contemplates fair use as a use authorized by the law". But again that's specific to the DMCA, and even there while the 9th seemed to want to try stemming abuse a bit, they only required the plaintiff to show a purely subjective lack of belief in infringement. Which could be without any real consideration of fair use factors at all. As well as being circuit only, analysis at the time indicated that if anything it might encourage copyright holders specifically to do as little as possible to consider fair use. Lenz did appeal to SCOTUS on that question but certiorari was not granted. Harvard Law had a fairly in-depth looking analysis [2].
In contrast for the 9th Circuit specifically in Perfect 10 v. Amazon/A9.com/Google [3] they explicitly covered Fair Use as an affirmative defense where the burden was on the plaintiffs:
>C. Fair Use Defense
>Because Perfect 10 has succeeded in showing it would prevail in its prima facie case that Google’s thumbnail images infringe Perfect 10’s display rights, the burden shifts to Google to show that it will likely succeed in establishing an affirmative defense. Google contends that its use of thumbnails is a fair use of the images and therefore does not constitute an infringement of Perfect 10’s copyright. See 17 U.S.C. § 107.
Additionally, I can find modern SCOTUS opinions such as in Campbell v. Acuff-Rose Music which support Fair Use as an affirmative defense:
>The fair use factors thus reinforce the importance of keeping the definition of parody within proper limits. More than arguable parodic content should be required to deem a would-be parody a fair use. Fair use is an affirmative defense, so doubts about whether a given use is fair should not be resolved in favor of the self-proclaimed parodist.
It'd be nice if plaintiffs were required to demonstrate as part of a suit that there was not a fair use defense for the defendants, but I really don't think that's the case nationally right now.
I understood the Perfect 10 case to be decided not on the merits and on a pretrial motion, and that the standard for fair use is not the same. Almost certainly the plaintiff will make a prima facie case, and an affirmative defense is needed then only on the pre trial motion. If the case went to trial the statutory text(arguably)does not require it to be raised as an affirmative defense.
I agree that Campbell v. Acuff-Rose Music supports it as an affirmative defense, but it is not the most modern case law even though it is the only modern supreme court case. Mattel v Walking Mountain Productions in the 2nd did not use fair use as an affirmative defense. Cariou v Prince, also in the 9th and denied certiorari is a modern case that did not depend on fair use as an affirmative defense. In the appeal they did question whether fair use is an affirmative defense specifically.
Would you say that congress intended fair use to be an affirmative defense?
I don't remember the specific arguments that he laid out, but after watching this (42 minute, worthwhile) video by Tom Scott about copyright my understanding changed. Now I assume that most things don't fit some narrow requirements regarding what parodies are allowed and what aren't.
Weird Al is trying to save himself trouble, because going to court can be expensive even when you win. He can legally do parodies without consent, but since so many people are happy to give him permission, that's the easier route for him.
Most of Weird Al's songs aren't parodies in the legal sense.
"Party in the CIA" is just "Party in the USA" with different Lyrics, it's not protected, just like most covers aren't. "Smells like Nirvana" is, because it directly references and parodies how the singer in the song is barely understandable.
Where would White and Nerdy place? It's not a direct comment on the original artist, but it is intentionally playing with a reversal of the stereotypes associated with the original piece.
Only a court can decide that. Parody is a defence in a copyright infringement case when it comes down to it, which is why Weird Al just gets permission instead. There's a lot of uncertainty on the edges.
> While Blunt himself had no issues with Yankovic recording the parody, Blunt's record label Atlantic did; they forbade Yankovic from commercially releasing the song at the last minute. Yankovic eventually released the song online as a veritable free single; furthermore, in music videos and during live performances, Yankovic has made reference to his dispute with Atlantic. Since the initial debacle in 2006, Yankovic has occasionally reached out to Blunt and his label to see if he can release the song on compilations. However, each time that he has approached Atlantic Records, he has been denied permission.
If Blunt had said no and his publisher said yes, Yankovic wouldn't have released a song even for free. So it seems Yankovic considers asking for permission to be both a matter of courtesy and liability, with more apparent emphasis on courtesy.
Yes but an imitation is not necessary and usually a parody. There is a good Tom Scott's video about this distinction and other common misconceptions about copyright:
https://www.youtube.com/watch?v=1Jwo5qc78QU (42 interesting minutes)
Are you sure that it's actually parodying Jay-Z? Is it making fun of Jay-Z?
Andeepfaked audiobook of a famous person reading a Brothers Grimm children's story is not obviously parody, and Jay-Z has a very well-known voice, and well known voices sell audiobooks nowadays. Just because you give it out for free doesn't make it fair use, either.
Second- no, parody is not explicitly excluded. It's one of several factors used to determine "fair use". Just because something is a parody doesn't mean it's automatically fair use, and the only way to get an explicit determination is to fight it in court.
