Future Tense

What Beyoncé and Justin Bieber Taught Me About Fair Use

Justin Beiber attends the 2015 American Music Awards, Nov. 22, 2015.

Photo by Valerie Macon/AFP/Getty Images

I made a discovery just before the holidays. If you start Beyoncé’s “Grown Woman” at 0:23 seconds in and simultaneously press play on the music video for Justin Bieber’s “Sorry” (on mute, of course), the Beyoncé audio matches the Bieber choreography nearly perfectly. It is uncanny.

If you are not one to stay abreast of Justin Bieber antics, the “Sorry” music video is amazing. The singer himself does not make an appearance. Instead, a crew of female New Zealanders stomp about to his warbling in their best ’90s neon. The background is white, the editing is minimal. The women, their clothing, and their choreography (which even the New Yorker described as “triumphant, ebullient”) are the focus: With neon flecks against a vanilla pop background, it’s the audiovisual equivalent of funfetti cake.

While I am unashamed to admit I like every part of “Sorry,” the dancing in the music video does seem an odd fit for a song whose lyrics are a half-hearted male appeal for forgiveness. These ladies seem anything but sorry—which is why I tested their moves out against “Grown Woman,” and why I was tickled to see that Bey’s female-first, thumping afrobeats fit so well with the “Sorry” moves.

Naturally, I wanted to share this discovery. In about 10 minutes and with minimal effort, I made a crude mashup that superimposed the desired audio and video. I then uploaded the video onto YouTube. Or at least attempted to do so.

Almost immediately, the upload was flagged by YouTube’s Content ID computers, and I was served copyright claims in both video and audio components. My video was blocked, and I lost some of my channel privileges.

Users who have tried to upload similar fan videos to YouTube might be familiar with this experience. Content ID is an automated system that checks all YouTube video uploads against an extensive database of content “fingerprints”—both audio and visual—and was introduced by YouTube to help creators and rights holders track and enforce their intellectual property rights. Because modern technology has made it possible for basically anyone with Internet access and a personal computer to make perfect copies of digitally distributed content, Content ID is a key way that YouTube stays on the right side of the law.

But wait! you might say. What about fair use?

Fair use, of course, is the legal doctrine that allows for limited exceptions to exclusive rights under copyright law. Fair use is specific to the U.S. legal tradition, and it makes several important exceptions to exclusive uses of copyrighted works, including for parody, journalistic, or educational uses. People tend to like fair use: In 2010, one study found that companies and sectors that rely on fair use and related limitations to copyright contributed trillions to the U.S. economy.

The law gives judges four factors to use to determine whether something is fair use: the purpose and character of use, the nature of the copyrighted work, the amount and substantiality of the portion taken, and the effect of the use upon the potential market. However, even with these factors, fair use is controversial, and its boundaries are fuzzy.

Despite several major court rulings that have recently strengthened fair use (Authors Guild v. Google Inc. and Lenz v. Universal are two such cases), continuing disproportionality of the system raises concerns. Although fair use is meant to be a sturdy and powerful carve out to exclusive rights, both legal and nonlegal systems don’t always treat it as such. Particularly with remixed work, content is often presumed guilty until proven innocent, a bias that can result in self-censorship or repeat takedowns and suppression of legal content. Part of how the future fair use cases are decided depends on precedent, and the U.S. Copyright Office keeps an index of fair-use decisions. But fair use is also generally considered a defense against an infringement claim, and anything that is potentially “fair use” is also potentially under threat of legal action. Considering that in 2011, the cost to litigate a full-blown copyright case ranged from $384,000 to $2 million, pursuing a fair use case is often cost prohibitive for smaller actors. Time is another cost factor: The rulings in both Lenz and Authors Guild rulings were 10 years in the making. If disproportionality becomes accumulated in case law over time, the boundaries of fair use might drift or recede from a socially optimal point.

Similarly, nonlegal ways of policing fair use can also be skewed. Because of the way the technology works, Content ID tends to sweep up things that aren’t necessarily infringing, like a home video with pop song playing in the background. YouTube’s computers flag possible infringement in a matter of seconds, and the default action is to suspend an upload. The onus is once again on the user to petition the platform (YouTube) or the rights holders (Justin Bieber and Beyoncé) that a video is fair use.

Amateur fan videos, remixes, and mashups—which arguably enrich and augment the fame of the pop stars from whom they sample—frequently fall into a legal gray area when it comes to fair use. A famous case is Danger Mouse’s The Grey Album. When it was released in 2004, the album, which is a mashup of the Beatles’ White Album and Jay Z’s The Black Album, received a cease and desist notice from EMI, which at the time held the rights to the Beatles catalog. Creatively remixed copyrighted content—questionably legal, undoubtedly enjoyable—also include the Taylor Swift/Aerobics mashup, which mixes Taylor Swift’s “Shake It Off” over an aerobics tape from the 1980s. (As you may know, Taylor Swift has very strong opinions about intellectual property and she is also fairly litigious when it comes to her copyrights). Another kind of “fan video,” & Julia, which edited the Amy Adams segments out of the 2009 film Julie & Julia, fell victim to a takedown after it was posted online and began to garner praise from culture blogs.

All said, I will concede that my original video is not the strongest example of fair use. It uses substantial and unaltered portions of not just one but two copyrighted materials. It is, however, transformative, and, particularly in abbreviated form, doesn’t necessarily offer a substitutable good that could erode the market for the original content. I still maintain, however, that there is educational and journalistic use in my creation. And so I suggest you mute JB’s video while blasting Bey. YouTube, by the way, can’t make me take that last line down.