Saturday, February 27, 2021

Important and subtle points about "Fair Use" born out by Mahlmann-Thuderf00t case about video excerpt of a space launch


Kennedy Space Center, FL, 2015

Leonard French and Lawful Masses channel considers the Malmann v. Thunderf00t litigation with regard to Fair Use.

Apparently an 18-second video of a space launch made by Ars Technica journalist Trevor Mahlmann was “ripped” without paying the minimum $750 license that he normally requires for his video photography to help make a living, by science journalist Thunderf00t.  Text articles on this case don’t exist yet, but French’s video makes some points on Fair Use.  For review, look at Columbia law school on the topic. 

The most interesting point, from my perspective, is the contextual or “meta-content’ analysis of the first prong of Fair Use.  If the “ripper” was using the excerpt to transform or do critical analysis of another presentation, that weighs toward Fair Use.  But if it simply is a copy of someone else’s “creative” presentation of the facts of a news story (here a space launch or landing – back in vogue today because of Mars) then it is not transformative, and the normal expectation of the original owner to collect license fees (to make a living) will be honored.  That’s particularly the case with music, video, or photography.

This in my mind raises a question of what happens when a journalist places themselves in a Zoom box on a video and then shows newspaper or periodical commentary in order to discuss the misbehavior or hypocrisy of various politicians (you know, the “vengeful Left”).  If the youtuber is commenting on the journalism on the news story reported, that’s Fair, but not if they are letting the photographed video article provide the content, so it wounds. 

I don’t do this very often, but in one video recently where I discussed the threat of coronavirus lockdowns again from variants, I did show a few graphs from the Hopkins tracker to look at whether cases are really still coming down.  (Hint:  now they are flattening again at a high level, and that’s disturbing).  I think that’s probably OK because there’s really no other reasonable way to present the graphs.  (I could be critical of that site – it doesn’t fit into mobile too well, and is very slow). 

 Update: French has an update, March 9, link

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