Cover of 1975’s Family Reuinion LP falls under FAIR USE, too

Well, that didn’t take long at all. It was only yesterday, in my Not Now Silly Year-Ender, that I said:

So . . . as we end this exciting episode of Unpacking The Writer, we have a brand new year to look forward to. Here’s to all the political muckraking, fights, and feuds to come in 2014!!!

Today I woke up to find myself in a legal dispute with Rock and Roll Hall of Famers, The O’Jays. That’s right. I said, “The O’Jays.” [WAIT!!! WHAT??? They’re in the RRHOF and Nilsson isn’t? WTF is wrong with this world?] My first thought was, “Are they still alive?” No matter. Two-thousand and fourteen begins weirdly, with a legal dispute with the O’Jays, or at least the company that handles their musical copyrights. Let me explain:

I have a YouTube channel where (among other things) I store the videos I’ve shot that will eventually be embedded at Not Now Silly. One of my playlists is called “One Grove – Community Mural,” which accompanied the blog post “Unveiling the One Grove Mural – A Photo and Video Essay.” It’s this video that the O’Jays have a problem with:

I shot this video the day I covered the unveiling of the One Grove mural. The mural is right across the street from the Trolleygate bus maintenance facility I had been writing about. It was a No Brainer that I would be covering the unveiling. At this celebratory community block party was a sound system that, between speeches, played Reggae and R&B tunes. The O’Jays are claiming a copyright violation against my YouTubery because their song “Family
Reunion” was part of the “wild sound” captured that day.

This is crazy on its face. My little video contains 34 seconds of their song. Yet, I can find that entire song and many more embedded on a facebook-generated O’Jays page. [Oddly enough there’s no music to be found on The O’Jays’ Official facebook page.] Plugging that song title into a Google video search returns 108,000 matches. Furthermore, Spotify allows me to create a playlist containing the entire O’Jay’s oeuvre. But they’re going to pick on little ol’ me because I covered a community event where their song was playing? That’s not how FAIR USE is supposed to work.

This is not the first time that the O’Jays have claimed a copyright violation against me on this very video. They claimed a copyright violation when I first uploaded it. I appealed to the faceless Master Cylinder at the YouTubery and, naturally, claimed the FAIR USE exemption because I understand the law better than the rights holder!!!

This was a news event I was covering in my capacity as a journalist, one of dozens of news stories I’ve written about West Grove over the years. My qualifications for claiming a journalistic FAIR USE exemption should not be in doubt. When I first claimed FAIR USE, I was sure that would be the end of it. I have claimed FAIR USE for other videos with wild sound like this. All previous FAIR USE claims were accepted. Until now.

The O’Jays rejected my FAIR USE exemption claim. Consequently, I am appealing again. Another appeal to the YouTube Master Cylinder kicks the process up to a whole new level of legal dispute. This is the point where lawyers may start getting involved.

I could have just removed the 34 second video or, in the alternative, covered the audio with rights-free music. However, there’s a journalistic principle involved here and I’m clearly using the snippet of music within the FAIR USE exemption of the copyright law.

And, it’s hypocritical. On the group’s OFFICIAL WEBSITE there’s a section called Music, where you can listen to O’Jays’ tunes. What’s the first one in the list? Why lookie here: It’s Family Reunion.

BTW: If my 34 seconds of Family Reunion gave you a hankering to hear the whole tune, there’s hundreds of versions online. Here’s one to keep you satisfied. Below you can read my latest appeal.

“The O’Jays-Family Reunion”, sound recording administered by:
SME – Dispute rejected, claim has been reinstated.

Demon Music

You originally disputed the claim based on fair use. Please explain why your use of content is subject to fair use according to the following statutory factors.

Purpose and character of use:

I believe the rejection of FAIR USE is in error. I am a journalist who covers news in Coconut Grove, Florida. This video was covering a community event. The music heard on the video was wild audio captured as I covered this community event. My blog, with dozens of news stories on Coconut Grove, can be found at http://notnowsilly.blogspot.com/

Nature of copyrighted work:

I am not claiming ownership of the music in any way. I am fully aware of the copyright holder’s claim to the music, but that claim cannot cover news events where the audio captures wild sound at the event. FAIR USE is supposed to cover situations like this.

The amount and substantiality of the portion used:

This is a very small snippet of music — 34 seconds — captured as wild sound during a community event.

The effect of the use upon the potential market for, or value of, the original work:

It’s my feeling that no harm comes to the rights holder by my having shared this video of a community event with people in Coconut Grove. The fact that during a time of great joy — the unveiling of a community mural — the folks in Coconut Grove played this music goes to show what high regard the folks have for the O’Jays song.

I acknowledge that filing an appeal may lead to legal proceedings between me and the complaining party to determine ownership. I am aware that there may be adverse legal consequences in my country if I make a false or bad faith allegation by using this process. I understand the [REDACTED] personal contact information I provided above will be shared with the complaining party for purposes of my appeal and consent to this disclosure. I acknowledge that this information may be transmitted outside my home country as part of this process. 

I’ll let you all know how this turns out.