April 11, 2013
Late last month, Twitter received a DMCA takedown demand from NPG Records, Inc., Prince’s record label, to remove a six-second video hosted on Twitter’s popular new Vine application. Vine is a mobile application (currently available only on iOS systems) that allows users to create and share videos that are a maximum of six seconds long. The relatively new social media start-up, which officially launched in early 2013 after being purchased by Twitter, also lets users comment on videos and follow other users. Despite the six-second limit – or perhaps because of it – Vine users are creating and sharing astonishingly imaginative and innovative content via the platform (be sure to view the Editor’s Pick section). As with any content-sharing platform, however, there is the possibility of intellectual property abuse, including both trademark and copyright abuse. The Digital Millennium Copyright Act To combat online copyright infringement, the Digital Millennium Copyright Act, or DMCA, protects content providers such as Vine from liability for alleged copyright infringement (a “safe harbor”) in exchange for the provider’s strict adherence to a process for removing alleged infringing material when they receive notification of an infringement claim from a copyright holder. In March, NPG Records sent a DMCA request to Twitter demanding that eight Vines be removed. Twitter publicly publishes every DMCA request it receives at Chilling Effects, and the NPG Records request is available here. Copyright Infringement or Fair Use? According to a tweet from the content’s creator, @ZackTeibloom, the eight Vines reportedly contained “Two Purple Rain videos, Prince talking, Prince gyrating against a chair, Snoop from “The Wire” dancing, typical Prince show.” It’s not clear whether Teibloom’s content was actually infringing, or whether a de minimis or fair use defense might apply. For example, if an average song is 3 minutes (180 seconds) long, then a full six-second clip appearing in a Vine video would be roughly 3.3% of the entirety. But the analysis could be further complicated by other issues, including whether the Vine includes just the music (playing in the background, for example), or also includes a performance or other visual element, as at least one of Teibloom’s Vines did. Mike Masnick at Techdirt, who has posted a YouTube video of one of the Vines, resolutely concludes that, at a minimum, the fair use defense applies. It’s unclear whether Teibloom plans to dispute NPG Records’ takedown notice, but a recent tweet suggests that in view of other concerns, including the 'no camera' policy in the building where he took the video of Prince, he will keep the content offline. Lenz v. Universal - a YouTube Takedown Notice NPG Record’s DMCA demand strikes a familiar chord. In February 2007, Universal Music sent a takedown notice to a YouTube user who posted a twenty-nine second clip of her children dancing to Prince's “Let’s Go Crazy,” which was playing in the background. The user argued that it was fair use and sued Universal with pro bono assistance from the Electronic Frontier Foundation. That case may soon head to trial in the Northern District of California. The Take Home The DMCA notice from NPG Records emphasizes the challenging and ever-evolving intersection of social media and copyright. With every new method of creating and sharing content comes not only the potential for copyright infringement, but also the potential for copyright owners to stifle the type of intellectual creativity that copyright laws are designed to protect. Content creators, including Vine users, should aim for the proper balance of creativity and respect for copyright protection.