Quote:
Originally Posted by HarryT
I don't know what evidence you have to suggest that the copyright holder did not consider the question of fair use, and reach the conclusion that it was not fair use. Whether or not use of the tune constitutes fair use is the whole question under debate, so clearly opinions on the matter differ.
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Can't be certain, but Lessig's
complaint mentions how the song was used:
Quote:
25. The lecture included several clips of amateur music videos in order to illustrate cultural developments in the age of the Internet.
26. One set of clips was taken from videos created by amateurs around the world, each of which depicts groups of people dancing to the same song, “Lisztomania,” by the band Phoenix.
27. The “Lisztomania” copycat video phenomenon started when a YouTube user, called “avoidant consumer,” posted on YouTube a video combining scenes from several movies, with the song “Lisztomania” serving as the soundtrack to the video.
28. Inspired by avoidant consumer’s work, other YouTube users from around the world, located in places as disparate as Brooklyn and San Francisco as well as Latvia, Kenya, Brazil and Israel, created their own versions of the video, with real people “performing” the roles of the actors in the original movies, and again with “Lisztomania” as the soundtrack.
29. Professor Lessig included these clips in the “Open” lecture to illustrate how young people are using videos and other tools to create and communicate via the Internet.
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That looks like a solid example of fair use, even more than Lenz v Universal. He's using the song in other media as an example of a cultural phenomenon, for educational purposes.
It'll be interesting to see the response to find out how Liberation Music tries to claim that's not fair use. It's possible that they considered it, and decided that no, this really is infringement; that would be a fascinating explanation.