When the Dallas Cowboys’ quarterback Tony Romo’s wedding video, set to Coldplay’s song “Fix You,” went viral on YouTube, the videographer, Joe Simon Wedding Films, thought it would be great publicity for his business. Instead, Joe Simon was threatened with a $150,000 lawsuit for not having purchased a license for the music rights. He quickly and quietly settled the lawsuit. His company and many other wedding videographers proceeded to take down their work from the Internet for fear of similar lawsuits.
From a technical standpoint, it’s clear that Simon violated a basic principle of copyright law by using the song without permission for a commercial purpose. However, the law does permit some copyright violations in certain situations, broadly falling under the term “fair use.” When does the fair use defense apply, and was the videographer in the clear when he used Coldplay’s song?
Fair use allows for limited use of copyrighted material without obtaining permission from the copyright holder. In theory, a court reviewing a fair use defense to copyright infringement will weigh the following four factors:
Purpose and Character of the Accused Use
How is the alleged infringer using the copyrighted work? If the use is for a commercial purpose, it generally weighs against fair use, whereas use for a non-profit aim (such as educational purposes) is more often allowed. Even if the work is used commercially, if the use is sufficiently “transformative,” a finding of fair use may result. A transformative use adds something new to the original work. The copyrighted work will then have a new meaning or message. This is why Saturday Night Live (and other for-profit parodies) typically get away with using copyrighted works. Their transformation of the work changes it enough to make the message of the work different – often commenting on (or poking fun at) the copyrighted work itself.
In this case, the videographer clearly used the song as part of a commercial transaction; he used the song in the wedding video and charged money for the video itself. Furthermore, although the video has been taken down, it’s not likely that he made any changes to the song in the video or otherwise “transformed” it in any significant way. As a result, this factor would presumably weigh against a fair use defense.
Nature of the Copyrighted Work
If the copyrighted work is inherently creative, such as a book or a fictional movie, it will be entitled to greater copyright protection compared to an informational or a functional work. It follows that the more creative a work is, the less likely an alleged infringer will be able to rely on a fair use defense. Coldplay’s music is a creative work (in the sense that I’m writing this post as a legal blogger rather than a music critic), so this factor would favor the band.
Amount and Substantiality of the Taking
When someone uses a copyrighted work, the amount she uses is taken into account when determining whether or not the fair use defense applies. However, even if it is a small percentage of the work, courts will also look to see if the infringer has used the “heart” of the work. The “heart” is the most significant or recognized portion of the entire work. Here, the entire song was apparently used in the wedding video.
The Effect of the Accused Use On The Potential Market For or Value of Copyrighted Work
This factor can become very complicated, but essentially the question that needs to be asked is: does the infringed use somehow lessen or impair the market demand for the original copyrighted work? In other words, can people get the same fulfillment out of the infringing use of the work as they can out of the original work? Furthermore, if the contested use impairs the revenue the copyright owner could realized from a licensing agreement, that will be taken into account. In the case of the videographer, it’s hard to imagine that the use in question affected the market value for Coldplay’s song.
Common sense suggest that no Coldplay fan was likely to be dissuaded from purchasing the original song because they could listen to the song in connection with Tony Romo’s wedding video. However, in the event that the use of the song in the video would be held by a court to be fair use, that would have the effect of destroying any potential market for song licenses in wedding videos. No videographer would willingly pay a licensing fee if they could rely on a court decision that a popular song is free to be used in these types of videos. And it wouldn’t take a great leap of logic to imagine that this decision could be applied outside the narrow scope of wedding videos. What about any other type of personal video posted online? What about commercials – a huge source of licensing revenues for the music industry? One could imagine that a court would be hesitant to start down this path, especially considering the other factors weighed against Simon’s position. While I’m sure he didn’t enjoy cutting the check, Simon probably made the prudent decision in settling his lawsuit.
Guidelines to Avoiding a Lawsuit in these Situations
- Read the fine print for the sites you are buying music from – each one is different. Some have only one year licenses and others 5 year licenses. Always read the fine print.
- Explain to your clients the copyright issues that could arise with certain music and suggest freely available songs that will have a similar impact on the audience but may not have copyright issues.