###Is it fair use or infringement? The argument for the applicability of fair use is extremely important to understanding copyright and putting copyright rules into practice. However, since the points that define fair use are vague and can be applied differently in nearly every context, it can be extremely difficult to say with certainty if something falls under fair use or not.
###Gabe the dog - 1812 Overture (Tchaikovsky) This video is a prime example of a piece of remixed media that could potentially infringe on the copyrights of its source material. But does it?
To make a decision on if this piece of media falls under fair use or not, below is a general guideline of steps to isolate the various possible infringements at hand and address them according to each of the four factors of fair use.
- Determine the different source material(s) used
- Analyze each potential infringement based on the four factors of fair use
- Decide if the piece as a whole falls more towards fair use or infringement
####Determine the different source material(s) used
_In this work, two different pieces of media are used in its creation. _
First, several clips of a fluffy Pomeranian dog are sourced as the main visual elements as well as the audio content which was remixed into the soundtrack of the work.
Second, the tune, music, and sound of Tchaikovsky's 1812 Overture are copied as exactly as possible to form the video's general sound.
####Analyze each potential infringement based on factors of fair use
As a reminder, the four factors which fair use is judged upon are:
- the purpose and character of your use
- the nature of the copyrighted work
- the amount and substantiality of the portion taken
- the effect of the use upon the potential market.
The purpose of the video clips is to provide an interesting background that fits with the audio sampled from Gabe the dog and reformed to follow the 1812 Overture. Both the source materials are significantly altered in some way, implying this video has a different character than the original pieces of source material.
With considering the nature of the copyrighted work, both pieces of source material are eligible to be used in fair use remixes as they have both been published (Gabe on youtube and the 1812 Overture long ago) and therefore their creators have already had a say on their first public appearance.
Neither piece of source material is used abundantly. The Gabe the Dog clips are used in small bursts and the amount used comes nowhere near the amount that have been published. The 1812 Overture uses less than two minutes of a nearly fifteen minute song. However, it could be argued that for both sampled works, the parts taken are the heart of the sources. If this video is leaning more towards the theme of parody, this is more excusable than if it were to just be using these pieces in another form.
It is doubtful that there will be any effect on Tchaikovsky's market today, in the year 2016. It is safe to assume sampling this musical work will not effect its creator. It could be argued that this remix of Gabe the Dog would take potential viewers away from the original channel where Gabe videos are hosted, or would it lead new viewers to it instead? The effect this video has on the barking dog clip market could be both positive and negative.
####Decide if the video falls more towards fair use or infringement
In the end, this work passes more categories than it fails. Though that alone could be used to make a fair argument in favor of a fair use categorization, there are a few areas that could be clarified further.
Specifically, the third factor of fair use is still left a bit up to interpretation. Is the amount of these source materials used acceptable for fair use? In a non-parody it could be argued that as they contain the heart (the main parts or a highly identifying piece) of Gabe and the 1812 Overture and therefore cannot pass this factor. However, if this clip could be determined to be a parody, a larger sample would be more necessary to fulfill its purpose.
So, is it a parody?
The overall idea behind this video is to create a remix of the 1812 Overture using only Gabe the Dog's barking noises. By creating the original tune with completely new instrumental forces, labeling this video as a parody of the 1812 Overture is an acceptable classification.
With this parody label, now the amount factor passes into the fair use territory as well, bringing the overall final decision to be a rather solid case in favor of fair use.
####In summary,
With reasonable certainty, it can be concluded that this media creation could be classified under fair use. The chart below gives an overview of which sections of fair use are passed and failed for each piece of source material.
Key: o = passes | ^ = passes after further analysis | x = fails
| Fair Use Factor | Gabe the Dog Clip | Tchaikovsky 1812 Overture |
|---|---|---|
| 1: Purpose | o | o |
| 2: Nature | o | o |
| 3: Amount | ^ | ^ |
| 4: Effect | ^ | o |