And the Grammy for Most Likely to Receive a DMCA Notice Goes to…

by Winthrop & Weinstine, P.A.
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Last Sunday was “Music’s Biggest Night,” at least according to the National Academy of Recording Arts and Sciences (NARAS). I haven’t watched many Grammy Award shows, but the possibility of seeing Paul McCartney and Ringo Starr performing together was enough for me to tune in, at least for a few minutes. I wasn’t paying particularly close attention, but my ears perked up at the following segment:

Click here for video.

(slightly better quality – and official version – available here)

If the video isn’t working for you, one of the presenters introduced the following nominees as follows:

This year Grammy’s wanted to reflect the way music lovers are making music videos of their own today so look closely because you just might see yourself in some of our nominee packages….

And then, instead of showing the actual music videos, the Grammy’s chose user-created tribute/cover videos for each of the songs. They appeared to professionally produced videos, not the kid in a basement with a guitar that you might be imagining. I am sure that the individuals who created the videos were pretty excited, but what about the artists and the record labels?

It is certainly possible that each of these derivative videos were officially licensed, or that NARAS went through all the appropriate legal steps to get the appropriate approvals from the artists and record labels (and the authors and performers of the derivative videos, too). Seems unlikely, though.

While attempting to find the answer, it turns out that each of the nominated songs has its own connection with copyright law. One YouTube performer had his video parody of Lorde’s – Royals removed based on a DMCA notice (only for a social media buzz campaign to have it reinstated). Katy Perry’s song Roar has been accused of ripping off her co-nominee Sara Bareilles and her song “Brave.” Ms. Bareilles doesn’t think so, for what it’s worth. Katy Perry actually gets two mentions thanks to the accusation that one of the videos for “Roar” stole the idea from Dillon Frances’ “Messages.” As for Bruno Mars and Justin Timberlake, well, no accusations of infringement. But they did make the top 20 list of most pirated artists of 2013, coming in at #1 and #4 respectively.

Other than that though, I couldn’t find any word either way whether NARAS had obtained approvals from the party involved, or whether somebody had a “wouldn’t it be cool if” idea and forgot to run it by the legal department, because, for most people, why would you? They’re just a couple second clips, plus they’re already on YouTube, so it’s really nothing… (setting aside the fact that they will be broadcast to millions through television and live internet streaming throughout the world). I doubt any owners, artists, or performers are too concered though. I doubt that the record labels will be scouring YouTube to find these videos and take them down.

What they might have cared about, though, is that the use in this manner at least partially encourages others to continue to make their own videos. It’s an interesting photograph of the current state of how performers, owners, and consumers of music view the intersection of user-generated content and copyright law. Maybe it is symbolic of a greater trend toward acceptance of new technology, remix culture, and user-generated content. If I were YouTube though, I’d keep a few people on hand to process DMCA requests though, just in case.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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