Did you say... copyright infringement?

[Nathan J. Hockley]

Hey everyone,

OK so... Mike Filsaime's newest video on his blog is him and his team going bowling. It is 'The Secret to a Million Dollar Launch'. They have used quite a popular song (new age pop/rock so some many may not know it), and it seems they can do so without breaking ANY copyright laws.

I don't know much in the way of copyright laws but thought this may have been an infringement. I posted a comment and was lucky enough to get a reply (but I don't think it is from anyone at MF Inc.).

Take a look at it, you can ultimately do the same if your video falls into the same criteria.

Internet Marketing | Butterfly Marketing | Mike Filsaime\’s Blog Blog Archive The Secret To A Million Dollar Launch…

Nathan J.

P.S. BIG BIG BIG Kudos to David Gleason who posted the info in reply to my comment.

P.P.S. This may be 'old news' to some but thought, this has benefited me and I'm pretty sure it will help others on this forum also.

------------------------------------------------ Added Information from a later post.

Seems like I have gone over my head posting this.

Lack of knowledge on the topic... and for jumping the gun making the reply by David G. the 'be all and end all'.

Originally Posted by mikefilsaime

Oh... I love when I am being accused but it is "around a question"

Did you Say blah blah ?

Did WHO say.

Why the "?"

Maybe you mean.

Is this blah blah ?

or Did someone say Blah Blah... (Notice no question mark.)

Maybe you think your "?" makes it seem you are asking. But
really the leading words are just matter of fact.

The way I delivered the topic title was left of centre... but thought it would increase the visitors. You may say this is misleading and if so I'm sorry.

Sorry Mike, didn't mean to ruffle your feathers. I was on YOUR side, well that's what I thought I was doing.

I thought I was going to be helping others rather than hindering them.

Originally Posted by kindsvater

I was contacted by a very reputable Warrior concerned that this thread was being used by Filsaime to provide misleading copyright information - information that could cause Warriors to potentially be sued for significant amounts if they followed Filsaime's comments and opinion.

I agree.

Anyone who thinks this is a nonprofit educational issue, is living in a fantasy world.

Or, is a 21 year-old kid from Australia who doesn't know any better, giving "kudos" to this information. That is understandable. It happens. Just best to make sure the wrong impression is not received by others.

Kindsvater is correct. I didn't (don't) know any better...

I gave kudos where I saw fit... and from the following posts it seems I've delivered a topic with mis-information.

I don't see myself as a 'kid' but following through without really looking into the issue makes me feel like one.

Thanks to everyone who posted and EDUCATED me (and other warriors who read this topic)further on the issue.

kid out.

[zerofill]

Actually this was pretty good man...I am glad you posted this...

That was pretty well laid out and actually followed what my original idea was on the subject...

Fair use...gets abused often...David did a nice job of covering it well.

Obviously no substitute talking to a legal professional...but I am pretty sure his definition was on target.

[Nathan J. Hockley]

Originally Posted by zerofill

Actually this was pretty good man...I am glad you posted this...

That was pretty well laid out and actually followed what my original idea was on the subject...

Fair use...gets abused often...David did a nice job of covering it well.

Obviously no substitute talking to a legal professional...but I am pretty sure his definition was on target.

Hey Donald,

Yeah he has done his research haha!

Probably what a lot of us here should have done but now its been spelt out clearly the use of a legal professional may not be needed (just yet).

Nathan J.

[Josh Anderson]

Guys....

This is not guaranteed to be covered by fair use.

The repliers interpretation whom you are piling accolades on is way too liberal and I believe incorrect.

It reflects only the most basic understanding of the law a basic conclusion drawn from a couple small lines in the law rather than one drawn from a study of the law, precedent, and case law.

Additionally his conclusion that the video is "non profit" and "educational" are both incorrect. Instead the video was published for entertainment/viral marketing purposes on a channel that is designed to advertise the company.

That does not rule out completely that this use does not fall under fair use... I won't attempt to draw a conclusion there one way or the other.

Instead I will suggest you review some case law your selves and refrain from drawing these types of black and white conclusions in situations that are not black and white.

This is a pretty good opinion article on case law:

Fair Use: Music Sampling

This statement about sums it up:

Fair use is troubling to those who are uncomfortable with lack of certainty since fair use requires a case by case analysis.

Be careful when drawing your own conclusions about "fair use" and acting upon them.

This is why in the case of music used by commercial companies in their productions it is best either to get a compulsory license (also a great read) or license some more readily available royalty free music instead.

Want to see a fun example of fair use?

www.youtube.com/watch?v=CJn_jC4FNDo

[mikefilsaime]

Oh... I love when I am being accused but it is "around a question"

Did you Say blah blah ?

Did WHO say.

Why the "?"

Maybe you mean.

Is this blah blah ?

or Did someone say Blah Blah... (Notice no question mark.)

Maybe you think your "?" makes it seem you are asking. But
really the leading words are just matter of fact.

Yes, then my name is shown and I have Copyright infringemnt
next to my name in Google.

---- NOW FOR THE RECORD.

The person that posted to your question DOES work for me.

David Gleason is my cousin.
He works at my office as an employee on the books.
He does my video editing and more.
He made that video.

And yes, he researched this before he made the video.

Josh is not an attorney. Nether am I. We both interpret things
different so I will not advise you on this. Best thing to do
if YOU want to do something like this as ask your attorney if you
have questions about.

We did our research, and as you can see on the blog below it
with the Tom Petty Song "Learning to Fly" snipit for my sky
dive video, we felt we were in the "Fair Use" category.


Here is what David (my employee) Said in reply to your question on my blog.


-----
Hey guys,

Actually, with the way the video was put together, it is fairly legal to put together this video. While it’s not here on this blog, the actual YouTube post gives full credit to the songwriters and the song (The Raconteurs -Salute Your Solution).

How is this legal you ask (Sorry if this takes awhile, but I absolutely love this law)? They are well within their legal rights to use the song under the Fair Use Act, a statute of limitations in the Copyright Law (Title 17 of the United States Code).

“In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.” (Section 107)

Since the video was both A. nonprofit and B. educational (I know it seems like a bit of a stretch, but it holds up if you analyze the underlying message of the clip), it falls under section one. It also falls under section three due to the fact that they added in the record scratches and broke up the song.

The best part about this act is the fact that ANYONE can use it. As long as you are making the video for nonprofit use and give credit where credit is due, you are under the full protection of this act. This is why I absolutely love Fair Use.
====

Thanks
Mike

[Josh Anderson]

Mike,

I hope you do not think what I posted was "accusatory" in fact what I posted was to clarify this point:

Fair use is troubling to those who are uncomfortable with lack of certainty since fair use requires a case by case analysis.

A quote from this article:

http://www.ivanhoffman.com/fairusemusic.html

Which was clearly stated above in response to the post from someone (not you) on your blog.

If you do not want it indexed by Google then you may want to have the blog post removed and not have your employees posting legal opinions on your blog.

Otherwise this information gets disseminated here where it needs to be clarified and debated so that newbies do not accept it as the gospel without looking deeper at the real issues behind a complicated area of copyright law like "fair use" themselves.

[Josh Anderson]

Anyone wanting to understand more about copyright law or the areas that specifically effect your business would benefit from these two great resources:

U.S. Copyright Office

Results for 'copyright'

[rondo]

Nathan "Fair Use" doesn't exist in Australia - it's a US thing.


Andrew

[jacktackett]

Everyone needs to be careful with this information- OK first standard disclaimer - IANAL, but the fact is not even a lawyer can decide 'fair use' in the US. This is a paragraph from my copyright handbook on on Copyrights:
(Also see http://www.copyright.gov/fls/fl102.html)
-------------------------------

Are You Really a Victim? The Fair Use Exemption.

Wait! – Maybe you’re not a victim of theft. US Copyright law provides an exemption called Fair Use. The Fair Use doctrine’s purpose is to allow folks to review, critique, report on, educate about, and satirize (make fun of) published works, without censorship. But also without infringing peoples’ creative efforts.

Unfortunately there are no hard and fast rules for what constitutes a Fair Use exemption under the law. Sometimes copying just a few words from a work – such as a poem – can constitute infringement; while other times copying an entire page of a work – such as a novel – may fall under Fair Use. The basic premise of this portion of the Copyright law is ‘Have you taken a significant, or the most important, portion of the author’s work as your own thus depriving them of potential rewards?’

And the folks who determine Fair Use are the courts, not you as the author, and not the alleged thief. As you may guess, claiming Fair Use can quickly lead to trouble if you are not careful.

The easiest way around this issue is too simply ask permission! Yes that old stand by we learned from our parents before Kindergarten comes in handy when dealing with copyrights! If you would like to use a quote or a passage from someone’s work – simply ask them for permission. Same goes for a blog post, an email, or a paragraph from their website. It never hurts to ask, and not asking could definitely hurt!

On the Web – Example Permission letters.
University of Connecticut Libraries Copyright - Sample Permission Letters and Forms
This site maintained by the University of Connecticut has examples of permission letters and many other copyright resources.

And make sure to get the permission in writing!

------------

basically, courts decide fair use, not content providers, not people who use then, and not lawyers. Remember, we're in the US - and anyone can sue anyone else if you can get a lawyer and a judge to hear the case......


again, IANAL, but as others have pointed out here - you should not rely on this forum for legal information ( and hey - that includes me!)

best,
--Jack

Originally Posted by Nathan J. Hockley

Hey everyone,

OK so... Mike Filsaime's newest video on his blog is him and his team going bowling. It is 'The Secret to a Million Dollar Launch'. They have used quite a popular song (new age pop/rock so some many may not know it), and it seems they can do so without breaking ANY copyright laws.

I don't know much in the way of copyright laws but thought this may have been an infringement. I posted a comment and was lucky enough to get a reply (but I don't think it is from anyone at MF Inc.).

Take a look at it, you can ultimately do the same if your video falls into the same criteria.

Internet Marketing | Butterfly Marketing | Mike Filsaime’s Blog Blog Archive The Secret To A Million Dollar Launch…

Nathan J.

P.S. BIG BIG BIG Kudos to David Gleason who posted the info in reply to my comment.

P.P.S. This may be 'old news' to some but thought, this has benefited me and I'm pretty sure it will help others on this forum also.

[kindsvater]

I was contacted by a very reputable Warrior concerned that this thread was being used by Filsaime to provide misleading copyright information - information that could cause Warriors to potentially be sued for significant amounts if they followed Filsaime's comments and opinion.

I agree.

Anyone who thinks this is a nonprofit educational issue, is living in a fantasy world.

Or, is a 21 year-old kid from Australia who doesn't know any better, giving "kudos" to this information. That is understandable. It happens. Just best to make sure the wrong impression is not received by others.

The (un)legal opinion by Gleason / Filsaime:

"As long as you are making the video for nonprofit use and give credit where credit is due, you are under the full protection of this act."

SHOULD NOT BE RELIED UPON BY ANY WARRIOR.

Especially when your "nonprofit" use is on a commercial website for promoting a commercial product.

It is a mystery to me why anyone would buy a product from a "guru" claiming to provide Internet marketing advice, and to make a million bucks, when that "guru" relies on their cousin bookkeeper / video editor for legal advice as to whether or not a marketing idea constitutes fair use.

It is also a mystery to me why someone claiming to be so successful, and thus supposedly has "deep pockets" that a copyright lawyer would love to pick, would not only rely on their cousin bookkeeper / video editor for legal advice, but intentionally re-state, authorize, re-affirm, and take personal responsibility for those statements.

How about this response instead? Thanks for your concern and I appreciate your interest in the good standing of our company. An employee researched this issue and believed the matter falls within fair use. It is something we may look at further because the law can be gray and opinions may differ. (And then delete the blog comments. Then delete the video, which is unnecessary.)

I don't care who the "guru" is. Sometimes its easy to get caught up into something, and of course to be defensive about one's own actions, and lose sight of the trees in the forest, so to speak.

Besides, is this an issue anyone wants to live on the edge for? You'd better be making a ton of money, because copyright infringement lawsuits are expensive to defend - regardless of the outcome.

"Fair use" is not some broad exception to copyright. Rather, it is a narrow defense to a copyright infringement claim. Perhaps David Gleason should do some more research about the nature of the defense, and research the percentage of verdicts in favor of copyright owners, and research the potential amounts to be paid for copyright infringement. Or better yet, he shouldn't. Because research defensively by a non-attorney made to bolster one's opinion is usually worthless.

Anyway -

- Don't rely on your cousin video editor for legal advice. (Don't rely on this thread or the Warrior forum either.)

- Don't take unnecessary risks, especially if you make a lot of money, and if there is no upside (if the video is deleted, so what?) an incredible downside.

- Don't "love" the fair use defense to copyright.

[Collette]

"...As long as you are making the video for nonprofit use and give credit where credit is due, you are under the full protection of this act..."

Interestingly, some friends of mine, who are both university dance professors, mentioned this exact subject just a couple of days ago.

They had just returned from a conference where a VERY hot topic among the attendees was that another university program (can't remember which one, sorry!) was being sued for using music for student rehearsals and free performances in exactly the same way described here.

This was causing quite a stir, since just about every dance program in the country has been doing that for years. And apparently, it's a violation of Fair Use. Or so the lawsuit claims.

[Samuel P.]

Ummm....that poster on the Filsame blog clearly has no clue what he's talking about. He misuses the term "statue of limitations" badly and the section he quotes from the Fair Use Act would work against the legality of this video, not for it. But then again, the Fair Use factors are intentionally vauge, and courts can read most anything into them...

Proceed with caution when using other people's tunes.

[Michael Stuart Kelly]

Originally Posted by mikefilsaime

Yes, then my name is shown and I have Copyright infringemnt next to my name in Google.

Hi Mike,

I can't figure out if this is good publicity or not. My gut tells me it is. Looks like lots of buzz is coming.



Michael

[Nathan J. Hockley]

Seems like I have gone over my head posting this.

Lack of knowledge on the topic... and for jumping the gun making the reply by David G. the 'be all and end all'.

Originally Posted by mikefilsaime

Oh... I love when I am being accused but it is "around a question"

Did you Say blah blah ?

Did WHO say.

Why the "?"

Maybe you mean.

Is this blah blah ?

or Did someone say Blah Blah... (Notice no question mark.)

Maybe you think your "?" makes it seem you are asking. But
really the leading words are just matter of fact.

The way I delivered the topic title was left of centre... but thought it would increase the visitors. You may say this is misleading and if so I'm sorry.

Sorry Mike, didn't mean to ruffle your feathers. I was on YOUR side, well that's what I thought I was doing.

I thought I was going to be helping others rather than hindering them.

Originally Posted by kindsvater

I was contacted by a very reputable Warrior concerned that this thread was being used by Filsaime to provide misleading copyright information - information that could cause Warriors to potentially be sued for significant amounts if they followed Filsaime's comments and opinion.

I agree.

Anyone who thinks this is a nonprofit educational issue, is living in a fantasy world.

Or, is a 21 year-old kid from Australia who doesn't know any better, giving "kudos" to this information. That is understandable. It happens. Just best to make sure the wrong impression is not received by others.

Kindsvater is correct. I didn't (don't) know any better...

I gave kudos where I saw fit... and from the following posts it seems I've delivered a topic with mis-information.

I don't see myself as a 'kid' but following through without really looking into the issue makes me feel like one.

Thanks to everyone who posted and EDUCATED me (and other warriors who read this topic)further on the issue.

kid out.

[BIG Mike]

I don't normally point members to my blog here at the WF, but here is the first is a series of posts you might want to look over related to this topic. There are several upcoming posts to the series that I think anyone, but especially newcomers to IM might find helpful.

Private Posts Volume 1 mp3

Folks, you've got to apply a little common sense to this stuff. I don't care who told who it was OK - any reasonable person would wonder if it is legal and should logically seek advice from their lawyer.

Why on earth would you believe anyone online about an issue with such a serious financial impact on you personally is astounding. I don't care if Mike F., Allen Says or even Brian Kindsvater says it's OK (Although I am inclined to put a LOT more weight on his comments). I'm still checking with our legal staff or going outside to an expert if warranted.

By the way, that's in no way a slur against any of them. But when or if it hits the fan, it's my financial security being risked - not theirs. And in end, it's not them paying the fines or going to jail; it's me or you or whomever does something so unbelievably stupid.

[Josh Anderson]

For anyone who is not aware:

Brian Kindsvater is an attorney.

[BIG Mike]

Yeah, I should have mentioned that in my last post...it's why I said:

Although I am inclined to put a LOT more weight on his comments

[Kurt]

Mike's claim that this video is for non-commercial use is contradicted by by his own use of tags and keywords.

Here's the tags it is "filed under": Internet Marketing, Just For Fun, New Product, Site Launch.

3 of these 4 are obviously commercial...

The <title> keywords are:
Internet Marketing | Butterfly Marketing | Mike Filsaime's Blog &raquo; Blog Archive The Secret To A Million Dollar Launch

The title of the video on Youtube is:
The Secret To A Million Dollar Launch

So, even if we were to believe that it's OK for non-comercial use, it's obvious that this video is being promoted for commercial reasons.


Plus, add this to Brian's comments...And as Josh said, Brian is a lawyer.

For new marketers...It's all about risk vs. gain. You can find free/cheap "royalty free" background music. Just search Google and look at the WSO forum.

As "fuzzy" as copyright laws are, why risk it?