As an anime artist, I had the privilege of animating anime girls when I worked with a musician. He has a YouTube channel and uploads videos of improvised musical themes from video games and anime. Last year, he hit me up with a music file and an illustration. “This look good?”
“Sure,” I said. “You got permission to use that?”
No. And no, I did not lose the job.
But he had a point. All over YouTube, people upload videos in which they do not have a copyright to the materials used in the composition; and these works stand. For example, I came across this disclaimer on a popular Anime Music Video (AMV) with 4M+ views[1]. This exact wording is widely used by AMV creators who edit anime footage to make music videos for popular music that are (most often) not royalty-free.
My attention was immediately drawn toward “personal use.” From what we learned in class, I was certain that personal use was not a permitted category for fair dealing. But is it for fair use? And what exactly is the difference between the two doctrines? In the following paragraphs, I’ll use my musician friend (both figuratively and literally) to compare the analysis under fair dealing and fair use jurisprudence.
Musician finds an image on Google that he wants to use as a cover for his musical work, tries to contact the author, but could not locate them. He decides to use the image anyways, uploads the video to YouTube and includes a link to the source in the video description. Will this use of Pic Found on Google (PFG) qualify as fair dealing/use?
Fair dealing vs. fair use
To begin, both doctrines came from common law and codified principles in the Berne Convention which allows certain limitations and exceptions on economic rights. In other words, protected works may be used without the authorization of the owner of the copyright, and without payment of compensation [2].
Below is a comparison of the factors contained in the fairness test under both doctrines. Unlike its Canadian counterpart, the US approach goes straight into fairness assessment without first requiring a finding of permitted purpose. Although the SCC recognizes in CCH that not all six factors will arise in every case [3], from what I have observed, courts seem to have mostly engaged with all six.
| Fair dealing (Canadian Copyright Act, s 29-29.2, CCH Canadian Ltd. v. Law Society of Upper Canada) | Fair use (Copyright Act of 1976, 17 U.S.C. § 107) |
| (1) the purpose of the dealing;
(2) the character of the dealing; (3) the amount of the dealing; (4) alternatives to the dealing; (5) the nature of the work; and (6) the effect of the dealing on the work |
(1) the purpose of the allegedly infringing use;
(2) the nature of the original work; (3) the size and significance of the portion of the original work that was copied; and (4) the effect of the allegedly infringing use on the potential market for or value of the original. |
Purpose
The first stage for fair dealing is the purpose test—as aforementioned, this is a Canadian-only assessment. Courts must first be satisfied that the dealing is for one of the allowable purposes enumerated in the Copyright Act. The purposes are to be considered from the user or consumer’s perspective, as per the SCC in SOCAN v Bell Canada [4].
Despite the recognition that all fair dealing purposes should be given the same large and liberal interpretation to ensure users’ rights are not unduly constrained [5], I struggle to establish an argument for PFG at this stage.
Research, private study, or education
Abella J wrote in SOCAN that “an important goal of fair dealing is to allow users to employ copyrighted works in a way that helps them engage in their own acts of authorship and creativity.” [6] Applying the analysis in SOCAN, there is an argument that YouTube viewers use thumbnail images of videos to conduct research and determine which video to play. The playing of the music video triggers dissemination of PFG and grants traffic to the author, which are both outcomes the Act seeks to encourage.
However, I think the facts here should be distinguished in two ways. In SOCAN, the dissemination and compensation is directly linked to the copyright owner’s musical works. In our case, the viewership is directly linked to the musician’s YouTube channel and only secondarily connected to PFG and its creator. The subject of study here is music, not art. The viewers, when conducting research, should be more reliant on other information (e.g., the piece of musical work being played, the video game or anime it’s from, and the musical instrument being used) compared to the appeal of the cover image. Whereas in SOCAN, the previews are merely a sample version of the copyrighted work.
Criticism or news reporting – ss. 29.1 & 29.2 CA
The musician’s work is neither a criticism of the original PFG or its creator nor a news report of the original PFG or its creator.
Parody or satire
This category is not applicable as a parody must contain an “expression of mockery or humour” [7].
Fairness test
If somehow our musician successfully establishes in Canada a purpose under research or education, the fairness test begins under both jurisdictions.
Purpose
Analysis Under Canadian Law
The relevant purpose is that of the ultimate users. The purpose of the copier is relevant in cases where they “camouflage” alternative purposes [8].
Although the non-commercial usage tips in favour of fair dealing, the Canadian perspective makes the test an uphill battle for the musician because, as discussed above, usage of PFG is not exactly relevant to the purpose of the user (research, etc.) as much as to his own creative purposes.
Analysis Under US Law
For this factor, the US doctrine has unique considerations. To justify the use as fair, it must either advance knowledge or the progress of the arts through the addition of something new. A key consideration is the extent to which the use is transformative [9].
In Toward a Fair Use Standard, an article quoted extensively in the Campbell opinion, it is noted that “[If] the secondary use adds value to the original—if the quoted matter is used as raw material, transformed in the creation of new information, new aesthetics, new insights and understandings—this is the very type of activity that the fair use doctrine intends to protect for the enrichment of society.” [10]
Our musician can argue that, by combining the PFG with music (from the same work that they both derived from), he has transformed PFG with new emotions, aesthetics and depth. The artistic merits of the original PFG are elevated by adding in the interpretation of the musical piece. This transformation, for the US doctrine, tips heavily in favour of fair use.
Character
Here, the musician’s creations are streamed rather than downloaded and do not provide the viewer with a permanent copy PFG. Similar to the previews in SOCAN, no copies of PFG can be duplicated or further disseminated by the users, tipping in favour of fairness.
Although not an explicitly listed factor, character is included in the US analysis under the purpose analysis. For this factor, courts should come to similar conclusions in both jurisdictions.
Nature
PFG is published and available online. Curiously, the Canadian and US courts seem to weigh the public availability of works in polar opposite manners.
Analysis Under Canadian Law
In CCH, the SCC noted that “if a work has not been published, the dealing may be fairer in that its reproduction with acknowledgement could lead to a wider public dissemination of the work – one of the goals of copyright law.” [11]
As PFG is already published and widely available on the internet (to the point of being easily found with a Google search), this factor tips against fair dealing. However, one may argue that a transformative reproduction of PFG on YouTube could lead to wider public dissemination compared to where it was originally published, which appeals to the public goals of fair dealing.
Analysis Under US Law
In the US, it would be more difficult to prove for unpublished works that the use was fair. For example, in Salinger v. Random House, the right of the author to control publication was held to override fair use [12].
Thus, PFG being publicly available tips in favour of fair use in US courts.
Amount
PFG is being reproduced wholly with no change and not as a part of a larger composition.
In both US and Canada, using most or all of a work does not bar a finding of fair dealing/use. CCH suggests that a whole work can be dealt with fairly [13], such as in the case of a photograph—which PFG is similar to in nature.
I will argue that reproducing PFG is the “fairest” way to pay tribute to the artist because it respects their moral rights. Artists include signatures and other identifiers in their work. Cutting their work into pieces would hinder their original artistic intentions.
Effect
Here, the reproduced work is unlikely to compete with the market of the original work. Art is less well presented in a video compared to a static image in high resolution. If someone is interested in PFG, rather than staring at it while replaying the music video, they will be inclined to click on the link in the video description and access the original work.
Analysis Under Canadian Law
This factor tips heavily in favour of fair dealing. However, in Canada, it is considered neither the only nor the most important factor as per the SCC in CCH [14].
Analysis Under US Law
In the US, the burden is on the copyright owner to demonstrate the impact of the infringement on the commercial use of the work. This factor has been considered “the single most important element of fair use” [15] but the court has noted that “all [four factors] are to be explored, and the results weighed together, in light of the purposes of copyright.” [16] Courts will both consider whether the questioned use acts as a direct market substitute [17] and whether a potential market beyond direct substitution, e.g., licensing [18], would be harmed.
Neither concern is applicable to PFG as the author had already made the illustration publicly available for download online. Since PFG is found on a deserted account, it is unlikely that the copyright owner would be able to satisfy their burden of proof. Also, most fan artists commercialize their work with professional commissions. A wider dissemination of their non-monetized work helps this end by promoting their personal branding.
Alternatives (Canadian specific)
As the video is essentially a piece of musical work, it is not reasonably necessary that PFG be used in the video to achieve the ultimate purpose (of guiding user research). A blank screen with the title of the work would do just as well (albeit less enticing). The musician has alternatives such as using official images of the video game/anime, finding artists who authorize the usage, or commissioning a work if resource permits.
TL;DR
Key differences
- Fair dealing is a 2-staged test with an exhaustive list of purposes, fair use goes straight to the fairness test and the purpose is open (the list in the statute is not exhaustive)
- Effect of dealing is considered “neither the only nor most important factor” in Canada, whereas US courts have considered this factor as more important
- Availability of alternatives is a factor specific to the CAN fair dealing doctrine
- For the purpose in the fairness test, a key consideration for US courts is “transformativeness,” which is not considered in the CAN test
PFG is more likely to prevail under fair use than fair dealing because 1) it doesn’t fit under the fair dealing purposes, 2) the factor specific to fair dealing (alternatives) presents the most difficulties against a finding for our musician, and 3) the unique “transformativeness” analysis under fair use favours such a finding.
At this point, I lean towards an understanding that PFG may be more likely to qualify as fair use under US law, but unlikely as fair dealing in Canada.
As a practical matter…
Third-party users of YouTube can sue each other. The case may be decided outside the defendant’s jurisdiction if there is reason to do so. An example is Hughs v. Benjamin (Akila v. Sargon). Carl Benjamin is a British citizen, but the case is tried in the US under its copyright laws. Thus, our musician being Canadian does not prevent him from being sued for copyright infringement in other jurisdictions.
In practice, it is much more convenient for the copyright owner to file a Take-Down Notice to YouTube. YouTube detects copyright through Content ID, which is an automatic system that allows the content rights holder to either monetize the video, block it, or do a mix of both with different treatments in different regions.
To settle it once and for all…
Initially, as an illustrator and a believer in the romantic author model, I was heavily against using PFG. However, as I conducted the above research and collaboration with the musician furthered, the connector model grew on me. After all, art should not only be appreciated but also be inspiring and encouraging to other artists. The balance of user and author rights is an eternal debate that evolves with new complexities as technology advances. In this case, PFG seems to be caught in the middle.
So I went to the musician to express my sympathy. “I take back my insults on your googling habits,” I said. “Have you considered moving south?”
“Why? My videos are non-commercial. I don’t post links to OnlyFans in the description or allow YouTube ads.”
“Don’t think that makes a difference.”
As I began my lecture on the above discoveries, he quietly opened google. And I was directed to s. 29.21 of the Copyright Act. Maybe I should write a post stating why provisions on non-commercial user-generated content ought to be repealed, I looked at his smug face and thought.
Or maybe I should google an image to be inserted down below?
This is a picture of my cat. Her name is Aurelia. She is not googled.
Footnotes:
[1] https://www.youtube.com/watch?v=ilsZEmxe6s0&t=38s&ab_channel=TumpyGFX
[2] Berne Convention for the Protection of Literary and Artistic Works, Sept. 9, 1886, as revised at Paris on July 24, 1971 and amended in 1979
[3] CCH v Law Society, 2004 SCC 13, at para 53
[4] SOCAN v Bell Canada, 2012 SCC 36, at para 30
[5] Warman v. Fournier 2012 FC 803, 2012 CF 803, at para 31, CCH v Law Society, 2004 SCC 13, at para 51, SOCAN v Bell Canada, 2012 SCC 36, at para 21
[6] SOCAN, supra, note 4.
[7] United Airlines, Inc. v. Cooperstock, 2017 FC 616, at para 119.
[8] Alberta (Education) v Canadian Copyright Licensing Agency (Access Copyright), 2012 SCC 37 at para 21.
[9] Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994)
[10] Judge Pierre N. Leval in the Harvard Law Review, “Toward a Fair Use Standard”
[11] CCH, supra, note 3.
[12] Salinger v Random House Inc., 811 F.2d 90 (2d Cir. 1987)
[13] CCH, supra, note 3.
[14] Ibid.
[15] Harper & Row v. Nation Enterprises, 471 U.S. 539 (1985)
[16] Campbell, supra, note 9.
[17] Princeton University Press v. Michigan Document Services, 99 F.3d 1381 (6th Cir. 1996).
[18] Ibid.
Copyright & Social Media
Communications Law