By Rick Rapier
She claims she had their permission and thought they would be grateful for the exposure, but, according to Ultra Records, fashion video blogger Michelle Phan was sadly mistaken.
In fact for using copyrighted music in her informational YouTube fashion videos, Phan is facing $150,000 in fines for each incident of misuse, with penalties adding into the millions. Such incidents of copyright violation are increasing, both by casual users and intentional abusers of copyrighted material – and by litigation instituted by wronged copyright holders.
Most of Phan’s legal trouble hinges on something you may have heard of before: fair use. And evidently cries of “Fair use!” – commonly invoked by users of social media sites, independent blogs and websites – offer little to no legal protection.
Does Fair Use Make It Fair Game?
Unlike cases early in the development of social media, like Napster, which is now infamous for allowing subscribers to download copyrighted music for free in the Net’s early days, and was deemed to be involved in a clear case of theft and copyright infringement, “fair use” is a little more in the gray area of the law.
The Fair Use Doctrine, frequently and often incorrectly invoked throughout the web, is borne of Section 107 of Title 17 of the U.S. Copyright Law, according to the U.S. Copyright Office. While Section 106 affords all rights of use to the copyright holder, Section 107 offers some leeway to others, including allowing for use of copyrighted material for educational purposes. And as the Copyright Office itself says, “The distinction between what is fair use and what is infringement in a particular case will not always be clear or easily defined.”
Still, the Copyright Office goes on to suggest that the answer to the question is: No, fair use does not make copyrighted content fair game. The Copyright Office explains, “Acknowledging the source of the copyrighted material does not substitute for obtaining permission.”
Much of the confusion can be attributed to the proliferation of social media. Whether YouTube, Facebook, Tumblr, Spotify, Pinterest, or personal blogs of various types, billions of online users are sharing, linking, embedding, and cutting and pasting as common practice. But that’s where copyright holders tend to be the most litigious. That is, lawsuits tend to arise when there is business being transacted and therefore money being made or – for the original creators – lost through “borrowing” or “sharing” media without permission, whether music, video, photographs, or infographics.
Thanks to the vague laws governing copyright and the use of copyrighted media, Phan is far from alone. According to one Internet and fair use expert, Sarah Bird, there have been hundreds of lawsuits filed and myriad rulings in the last several years on the matter of fair use versus copyright infringement, leading to legal precedents that often stand at odds with one another.
Bird is an SEO and social analytics expert and CEO of Moz, a provider of search engine optimization (SEO) optimization software. She asserts that due to fast-changing technologies and delivery platforms, copyright laws are intentionally vague. On her website, she is often asked about the topic of copyright, and an entire website, PlagiarismToday.com, has been dedicated to addressing and tracking the growing problem of Internet plagiarism.
“’Fair use is an important, controversial, and evolving concept” —Sarah Bird, SEO and social analytics expert and CEO of Moz
Even the experts, including the U.S. Copyright office, say the subject is confusing. But in addition to being a gray area of the law, it can sometimes do harm to both copyright holders who lose income and to those who unknowingly violate copyright law and face penalties under the law.
In Phan’s case, while her YouTube videos are educational for those interested in fashion, Phan also makes a considerable profit – $5 million last year alone – generated by her channel’s online advertisers. And that is business generated, in part, by using copyrighted works.
Another infamous case of using social media as both educational tool and cottage industry is that of self-proclaimed “Food Babe” Vani Hari. While Hari has been heralded as noble by such renowned news organizations as CNN and New York Times for her efforts to make the ingredients in Subway’s bread and Kraft Macaroni & Cheese more healthy, she has many detractors as reported ScienceBasedMedicine.org and NPR.org. And one has apparently come at her for purported plagiarism for lifting the online content of others from various blogs and websites, no small charge to make against a woman whose whole career is based on her credibility.
The Virtual Damage Is Done
Hari has decried the charges as unfounded “ad hominem attacks,” however, in a certain sense, the suspicion of plagiarism will follow her for years – and many Google search results – to come. Still, the pair of Internet vlog entrepreneurs can serve as lessons for the rest of us. The risks of utilizing content produced by others, especially if for personal gain, can be costly. Not only can the penalties result in financial loss, but it can also damage credibility. This affirms that social media is not the free-for-all many believe it to be. Social media users must be mindful of these laws when it comes to sharing content.
To mitigate the risks of recrimination, Bird suggests that offering attribution and providing links back to the original source can often help reduce the risk of inciting the content’s originator, especially if a blog or social site is not intended for profit. But where the devil is in the details truly comes when there is money being made by the “fair user.”
Have you used content produced by others on your blog, YouTube, or other social media channels? What are your thoughts on the “Fair Use” doctrine?