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Mixing content to tell a story can this be considered infringement?

Asked over 2 years ago - Atlanta, GA

Say you have a song. And you have a video of something completely different. And you mix the two but own neither. I know you're taking video and audio you don't own, and technically that's copyright infringement, but you've mixed them in a way to tell a completely different story.

This takes a lot of creativity and work. And it can be done only by mixing these exact two elements. It is the point to the whole story. Is this covered under the 1st amendment? It is covered under fair use? Or is it something you can't share, or maybe not even make in the first place?

Also, I'm confused, are parodies infringement? I got different answers.

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Attorney answers (3)

Jefferson Hampton Coulter II

Reputation Level 8

Answered over 2 years ago. Bankruptcy Attorney in Seattle, WA.

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I would take a look at the Center for Social Media's Fair Use Materials, including Best Practices for User-Generated Content. Courts have applied the doctrine of fair use to visual collages, but it all will turn on the extent of copying, the character of the new work, and whether the artistic expression of your work transforms the original materials. That said, I think audiovisual collages "Mashups" fall under the defense of fair use if properly done.

But remember, fair use isn't a right, it's a defense.

Mashup a fair Use

Best Practices for User Generated Content

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Laura Mcfarland-Taylor

Reputation Level 19

Answered over 2 years ago. Trademark Application Attorney in Bolingbrook, IL.

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Generally speaking what you want to do is infringement. It isn't possible to tell you whether it would be covered under any of the exceptions without actually seeing the work. Hire an intellectual property attorney.

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Daniel Nathan Ballard

Reputation Level 18

Answered over 2 years ago. Intellectual Property Law Attorney in Sacramento, CA.

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First, the amount of effort needed to create a work is irrelevant when considering whether the work is copyrightable or whether the use of pre-existing works to create the work is "fair" (and therefore not infringing). How hard it is to create the work (technically or physically or emotionally) does not matter. The touchstone is whether the finished work is sufficiently creative to justify copyright protection.

Second, a "mashup" video of the type that you describe is copyrightable and the creator owns the copyright in it. What the creator can lawfully do with that work, however, is another story.

Third, whether it is fair or not to use the unlicensed use of pre-exisiting works to create another depends entirely on the facts of each situation. It will, however, be a very rare case indeed (if ever) to fairly use two whole works to create a third.

Fourth, whether you can lawfully make a mashup video "in the first place" is akin to the question of whether a falling tree makes a sound in the forest if no one is there to hear it. Certainly you can make a mashup video. If no one but you sees it, however, is that an infringement? Existentially, probably yes. Is the "wrong" legally cognizable? No.

You can read what the US Supreme Court (the last word on the matter) has to say about parody here:
http://tr.im/uu9b

You can read more about copyright fair use here: http://fairuse.stanford.edu/

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