Are AMVs considered copyright Infringement? [part 3]
A strong case of fair use can be made for the video track in AMVs. But responsible for the copyright strikes and warnings that AMVs get, is mostly the audio track. There have been many case of take down notices in the past, audio muting and unavailability of certain AMVs in certain countries due to the song. There have even been scandals where music companies demanded for AMVs that use their songs to be taken down from AnimeMusicVideos.Org. But it can still be debated if the audio track in AMVs is copyright infringement and not under fair use.
1. The Purpose and Character of the Use
a. Non-commercial — Once again, AMVs are completely non-commercial works which makes them much more likely to be fair use. While they are often posted on commercial sites such as YouTube, that has no bearing on whether AMVS themselves are fair use or not. “Under the DMCA safe harbor provision, the responsibility to ensure content is non-infringing is entirely that of the user that uploaded the videos, not YouTube.” (Patrick McKay ,“Are Anime Music Videos Fair Use?“, 2009.)
b. Transformative — It is much less clear that AMVs are transformative in relation to the music source than the video source. Since they usually use a whole song without editing or altering it, they clearly don’t transform the song in the sense that they make it into something different as with the video track. However, there is still a case to be made that AMVs are transformative in relation to the song used in “altering the original with new expression, meaning, or message. The video and music are combined to create an entirely new message which is much greater than the sum of its parts.”
As AMVs themselves evolve, the audio track is becoming more and more transformative. It started as simple song cut to keep the part of the song that suits more the idea of the AMV:
People nowadays are sometimes adding sound effects:
1. To give their AMVs a cinematic look
2. To make AMVs more emotionally engaging to the viewers:
2. Nature of the Copyrighted Work
As with the video, the source songs in AMVs are published artistic works. The fact that they’re published (assuming you don’t use a pre-release leak or something) is slightly in favor of fair use, while the fact that they’re artistic rather than factual works is slightly against fair use.
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
This prong is slightly problematic, since an entire copyrighted song is used. This would tend to weigh against fair use. However, some cases where an entire work was copied have nevertheless been held to be fair use, “if the secondary user only copies as much as is necessary for his or her intended use.” (Patrick McKay ,“Are Anime Music Videos Fair Use?“, 2009.) In this case we could say that the whole song is necessary, since the point of an AMV is for the song to shape the video and for the video to depict the song.
4. The effect of the use upon the potential market for or value of the copyrighted work
“a. Effect on the market for the original song: Copyright holders could argue that AMVs could serve as a substitute for buying the original song if people merely listen to the song on YouTube or rip the audio track instead of buying the song. Those who are content to merely listen to the song on YouTube would not have been likely to buy the song anyway, while relatively few people possess the technical knowledge to rip the audio from a video and use that in place of buying the song. Those that do would most likely consider the audio rip of inferior quality to purchasing the song (or merely illegally downloading it a different way), and would thus not likely consider it worth the trouble. Both of these factors also most likely would be outweighed by the positive effect the video would have on the market for the original song by giving the artist additional exposure and free promotion, motivating people who otherwise might not have heard the song to buy the artist’s work.
b. Effect on a possible licensing market: In large-scale commercial scenarios, there is an established market for audio visual synchronization rights, where musical artists sell the rights to filmmakers to “synchronize” their music with video footage such as in films or television commercials. However, there is at present no market for licensing tracks to individual hobbyists wanting to create amateur non-commercial music videos for fun. Because a legitimate market for licensing songs for uses such as AMVs does not currently exist, there is therefore no potential for this use to have a negative effect on such a market. You cannot negatively impact that which does not exist.” (Patrick McKay ,“Are Anime Music Videos Fair Use?“, 2009.)
Just like the case of the video track, I believe that AMVs can’t be considered a substitute to the original song since they are aiming for an original meaning which differs from the song. Creators themselves are searching for music that suits their idea, leading to discoveries in music artists, who are getting more exposure because of AMVs. But whether they are a case of Fair use can’t be answered.
Sources:
McKay,Patrick. “Are Anime Music Videos Fair Use?“. Promoting Fair Use in Online Video.June 19, 2009.
Office of the Law Revision Counsel .United States Code: Containing the General and Permanent .Volume 8.United States : Government Printing Office ,1995.
Are AMVs considered copyright infringement? [part2]
AMVs in their purest form are a combination of audio and visual elements, which consist of the Animes and a song. Of course there are AMVs which include sound effects, for example:
But usually the song is used without any changes. As animes have their own copyright laws that are different from music’s, to further examine if AMVs are considered copyright infringemenet, people had to divide the examination in two categories, audio and visual, just like Patrick McKay did.
Video Track
“1. The Purpose and Character of the Use
a. Non-commercial – Non-commercial works are much more likely to be fair use than commercial works for profit. Anime music videos are purely non-commercial works created for fun and entertainment and not personal or financial gain.
b. Transformative – The more a work changes and adds to the original rather than merely copying it verbatim, the more likely the use is fair. The standard for determining whether something is “transformative” rather than merely “derivative” is whether it “merely supersedes the objects of the original creation or whether and to what extent it is ‘transformative,’ altering the original with new expression, meaning, or message.” (Campbell v. Acuff-Rose Music). At least in regards to the video track, AMVs so heavily modify the original source footage by clipping, reordering, and overlaying special effects as to make it an entirely new creation. While the use is certainly “derivative,” re-editing plus the new meaning imparted by the particular scenes selected and the music makes AMVs highly transformative, weighing significantly in favor of them being fair use.
2. Nature of the Copyrighted Work
Under copyright law, published materials are more likely to allow fair use than non-published works, and factual works are more likely than artistic works. In this case, the original copyrighted material (anime footage) is published (counting in favor of fair use) artistic work (counting against fair use).
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
Generally, the less of a copyrighted work that is used in relation to the whole the more likely it is to be fair use. In the case of AMVs, only 3-5 minutes of footage are typically used, consisting of 1 or 2 second clips, often out of hours of available source footage. While these clips may often contain the “heart” of the original work (the most significant scenes of the original anime), the minuscule amount of footage used combined with the brief duration of clips weigh significantly in favor of fair use.
4. The effect of the use upon the potential market for or value of the copyrighted work
This is often the most important prong of the fair use test, and together with the first prong is the one most strongly in favor of AMVs as fair use. In the case of non-commercial works, the burden of proof is on the copyright owner to prove harm to the market or value of the work. In the case of AMVs, the small amount of footage used, the reordering of brief clips, and the absence of the original audio track makes it almost impossible for an AMV to be a substitute for the original work (i.e. nobody would watch the AMV instead of the original work). There is also no market for licensing anime clips for use in amateur music videos. Thus AMVs would be highly unlikely to have a negative impact on the market for the original work. In fact, they are more likely to have a positive impact on sales of the original, as they would increase interest in the original work and drive increased sales, effectively acting as a free promotion for the source anime. This factor also weighs heavily in favor of fair use.”
( Patrick McKay , “Are Anime Music Videos Fair Use?“, 2009.)
According to Patrick McKay, the video track has a strong case of fair use. In truth, never have an anime company sent take down notices to AMV creators. Personally i have always used AMVs as a means to promote an anime to friends, as it includes small clips that can make someone familiar with the aesthetic of the anime, while it’s not easy to get spoiled by it. While AMVs can stand alone as a seperate piece of art given enough effort by the creator, the video will always be compared with the source materials.
Sources:
McKay,Patrick. “Are Anime Music Videos Fair Use?“. Promoting Fair Use in Online Video.June 19, 2009.
Αre AMVs considered copyright infringement?[part 1]
Copyright law, which once served to promote new forms of cultural production, has now become a hindrance to them, as the law has failed to adapt to a new era. We live in a time of great cultural change. New technologies are transforming our society at a faster rate than ever before. One of the most important cultural developments that have resulted from these new technologies, is the emergence of a participatory culture of “user-generated media” on the Internet.
The Internet has spurred the growth of thousands of fan-based websites and online communities, where ardent fans create and share a wide variety of creative works based on popular media. Under current copyright law, all of these forms of creativity are considered “derivative works” of the originals upon which they are based; thus, they are all potentially copyright infringing. As a result, the entire world of fan-made art exists under a constant cloud of legal ambiguity. AMVs are no exception. There is a long history of debate whether they fall under the category of stolen art. But, there is the law of fair use that allows certain uses of copyright material without permission.
“The fair use doctrine, as outlined in 17 U.S.C. § 107, specifically names criticism, comment, news reporting, teaching, scholarship and research as valid reasons for fair use. It outlines a four factor list of considerations in determining whether something is fair use or not:
1)What is the nature of the use? In other words, is something genuinely new being created, and is it for profit or commercial sale? This is where larger-scale for-profit artist alley merchandise operations get into trouble.
2)What is the nature of the copyrighted work? This takes into account such questions as whether a story is fictional (you can't copyright facts), historically significant (the Zapruder film of the JFK assassination was ruled to be non-copyrightable) or previously made available. None of that applies to anime, really.
3)Amount and substantiality - basically, did you copy the whole show, or just short clips? Short clips are more likely to be considered fair use, although sometimes it's OK to copy the whole thing, such as when using a PVR to time-shift a TV show.
4)Effect upon work's value - Did the violation of the copyright make the legal work have less value? For example, fansubs would not be "fair use" because once you've seen a show once on a pirate site, most people aren't going to then go to a legal site and watch it again.”
( Justin Sevakis, “Are AMVs And Other Fan Works Really "Fair Use?" ”,2016.)
Answering the questions above doesn’t provide with a “pass” or “fail” answer on whether amvs are stolen art. That’s something that the jury of a trial decides. But there haven’t been such cases; the anime companies never filed issues to amv creators.
“Henry Jenkins ( Provost Professor of Communication, Journalism, Cinematic Arts and Education at the University of Southern California) describes two basic camps that have emerged among media producers—the prohibitionists and the collaborators.
The prohibitionists view any type of fan creativity built on corporate media properties as dangerous and seek to suppress it at all costs, while collaborators seek to work with active fan communities and harness their enthusiasm to promote their products. As a result, some media companies have simply tried to suppress all types of fan creativity, while others have sought to encourage a limited degree of fan interaction with their properties by keeping it on a short leash and cracking down hard if fan culture veers in undesirable directions”
( Patrick McKay ,“Culture of the Future: Adapting Copyright Law to Accommodate Fan-Made Derivative Works in the Twenty-First Century”, 2011)
Most anime companies fall in the collaborators camps. It's almost certainly not worth their time or money to go after AMVs in any way. The fan backlash would be grievous, and there would be nothing to gain from it. Also, the fact that almost every anime company has participated in a convention during that hosts an AMV competition without complaint, and sometimes even sponsored or donated prizes thereto competition, would just about destroy any case that they had against them.It would look like a tacit approval over the practice.
The new breed of amateur creators, including AMVs creators, does not need copyright to “incentivize” their production of creative works. They do it for the pure joy of creating something that will be seen and appreciated by potentially millions of people around the globe. Nowhere is this truer than in the world of fan-made, “follow-on” creativity.
Sources:
McKay, Patrick .”Culture of the Future: Adapting Copyright Law to Accommodate Fan-Made Derivative Works in the Twenty-First Century “.December 19, 2011.
Sevakis, Justin. “Are AMVs And Other Fan Works Really "Fair Use?". Anime News Network. March 14th,2016.
