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> Under this example, I’d argue that this is not incidental usage. This seems hard to buy - surely courts are aware that copyrighted material necessarily exist

> Under this example, I’d argue that this is not incidental usage. This seems hard to buy - surely courts are aware that copyrighted material necessarily exists in public spaces? If this guy filmed himself walking around then presumably he filmed all kinds of illustrations on t-shirts, text on signs, people whistling to themselves, etc. Wouldn't the copyright owners of all those things be able to make the same claims as the owner of whatever was playing on the radio? If the law works the way you're describing here and in replies, it sounds like every video ever made in a public place would be one long string of copyright violations from start to finish.

dijksterhuis 7y ago
The problem is that he is making money of the back of the recording of the musical work that has been registered as copyrighted material. That’s literally the whole point of copyright. Someone is making money off my musical work? I deserve to be remunerated for its use. (Very high level description). If it’s Someone whistling an on the fly melody then that’s fine. The musical work isn’t registered as being copyrighted. It’s just some bloke/lady whistling. So that doesn’t count and is totally fine. If they were whistling a popular tune, well, that’s getting into the whole idea of arrangements. They’ve created a new arrangement of the musical work, which might be copyrighted. Depends on context with arrangements. If this were a holiday video he shared with friends and family, it would totally fall under fair use. He’s not making money off the back of it. As to all the other signs etc, no idea. My background is music copyright.
- deleted 7y ago
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- fenomas 7y ago
  > The problem is that he is making money of the back of the recording of the musical work I don't follow. Can any reasonable person really suppose that a 30 minute travel video's ad revenue might be materially affected by the presence or absence of a random ten second snippet of a random song at some random part of the video, briefly audible in the background (at presumably low quality)? I'm no lawyer, but as stated the claim seems facially absurd.
  - nickjj 7y ago
    > briefly audible in the background (at presumably low quality)? Yep it's both low quality and low volume. It's hard to apply exact numbers but let's say speaking volume is an 8 but the background music is at a 3 or 4. It's present and loud enough to make it out but it's not crystal clear. Quality wise it suffers because it's not a direct audio input into the video. It's being picked up by a small positional mic from ~50+ feet away.
  - dijksterhuis 7y ago
    The degree of material gains from including a copyrighted musical work don’t matter. It’s a blanket thing. The copyrighted work has been included in content that is monetised. The guy is making money and the musical work has some part to play in that. Here’s a counter example. Imagine if I recorded Bono from U2 chatting about random stuff between playing live tracks at a concert. But I inadvertently caught the last 10/20 seconds of most songs. I make these recordings publicly available and monetise them. I was only doing it to catch Bono’s musings between tracks. But people can hear the copyrighted material as well. Under copyright law, I have made a copy of the musical works (mechanical right) and have made them available for consumption (performance right). Just because I only caught snippets doesn’t matter. It might affect the amount of money I need to pay rightsholders, but there is copyrighted material in those recordings. So the rightsholders should be remunerated. That’s it. That’s the whole fundamental point.
    - fenomas 7y ago
      > The guy is making money and the musical work has some part to play in that I understand that a lawyer for the music owner could conceivably argue that claim, and that a court could conceivably agree with it. I'm sure everyone in the thread agrees on that. What I'm questioning is your presenting "he made money from the music" as a clear fact, and not something a court would decide - suggesting that the presence of audible music necessarily guarantees that theft has taken place, no matter how strong the arguments to the contrary. It's hard to believe the law on this famously contentious topic would be that simplistic.
      - 7y ago

dijksterhuis 7y ago

The problem is that he is making money of the back of the recording of the musical work that has been registered as copyrighted material. That’s literally the whole point of copyright. Someone is making money off my musical work? I deserve to be remunerated for its use. (Very high level description). If it’s Someone whistling an on the fly melody then that’s fine. The musical work isn’t registered as being copyrighted. It’s just some bloke/lady whistling. So that doesn’t count and is totally fine. If they were whistling a popular tune, well, that’s getting into the whole idea of arrangements. They’ve created a new arrangement of the musical work, which might be copyrighted. Depends on context with arrangements. If this were a holiday video he shared with friends and family, it would totally fall under fair use. He’s not making money off the back of it. As to all the other signs etc, no idea. My background is music copyright.

deleted 7y ago
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fenomas 7y ago
> The problem is that he is making money of the back of the recording of the musical work I don't follow. Can any reasonable person really suppose that a 30 minute travel video's ad revenue might be materially affected by the presence or absence of a random ten second snippet of a random song at some random part of the video, briefly audible in the background (at presumably low quality)? I'm no lawyer, but as stated the claim seems facially absurd.
- nickjj 7y ago
  > briefly audible in the background (at presumably low quality)? Yep it's both low quality and low volume. It's hard to apply exact numbers but let's say speaking volume is an 8 but the background music is at a 3 or 4. It's present and loud enough to make it out but it's not crystal clear. Quality wise it suffers because it's not a direct audio input into the video. It's being picked up by a small positional mic from ~50+ feet away.
- dijksterhuis 7y ago
  The degree of material gains from including a copyrighted musical work don’t matter. It’s a blanket thing. The copyrighted work has been included in content that is monetised. The guy is making money and the musical work has some part to play in that. Here’s a counter example. Imagine if I recorded Bono from U2 chatting about random stuff between playing live tracks at a concert. But I inadvertently caught the last 10/20 seconds of most songs. I make these recordings publicly available and monetise them. I was only doing it to catch Bono’s musings between tracks. But people can hear the copyrighted material as well. Under copyright law, I have made a copy of the musical works (mechanical right) and have made them available for consumption (performance right). Just because I only caught snippets doesn’t matter. It might affect the amount of money I need to pay rightsholders, but there is copyrighted material in those recordings. So the rightsholders should be remunerated. That’s it. That’s the whole fundamental point.
  - fenomas 7y ago
    > The guy is making money and the musical work has some part to play in that I understand that a lawyer for the music owner could conceivably argue that claim, and that a court could conceivably agree with it. I'm sure everyone in the thread agrees on that. What I'm questioning is your presenting "he made money from the music" as a clear fact, and not something a court would decide - suggesting that the presence of audible music necessarily guarantees that theft has taken place, no matter how strong the arguments to the contrary. It's hard to believe the law on this famously contentious topic would be that simplistic.
    - 7y ago