Generic Fair Use

... where pop culture meets intellectual property law

Tag: internet

Prince spooks YouTube over Copyright Infringement (again)

… and your own concert video recordings on YouTube could be infringing, too

Prince has been gone for nearly four years. But his presence still looms large over copyright law. Even in death, Prince’s estate continues to keep a watchful eye over potential infringers of his musical works.[1] The latest dispute is a potentially haunting restriction of a popular feature on YouTube: people posting video clips of live performances. On January 6, 2020, the federal district court in Massachusetts determined that Prince’s estate has the sole right to distribute video clips of his live performances and that uploading certain song clips to a YouTube channel may even constitute copyright infringement.[2]

This case presents a multitude of legal issues to assess. Additionally, this ruling leaves a potential to a technology-based philosophical conundrum for future copyright cases as they intersect with YouTube style sites. I have a YouTube channel. On this channel I have posted covers of songs that I play on guitar. My videos are nothing fancy, but this recent case and others like it have determined that these videos can actually be infringing works. This article will try to address these legal landmines while exploring any possibility for copyright law as it exists today to be reconciled with how these personal camera-phone videos are treated by the law.

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Something in the Way: Online Guitar Tabs and Copyright Law

Americans buy millions of new guitars every year.[1] Many of these are “entry-level” guitars intended for those trying to learn a new instrument. Yet somewhere in the range of 90% of new guitar players quit trying within the first year. When the electric guitar first became popular in the 1950s and 1960s, there were few ways to accelerate the learning curve. By the late 1990s, along with the advent of the internet, a tool for learning guitar and how to play popular songs reached the masses: guitar tablature or “tab” for short. The concept of tablature was not new, but the ability for an individual to read and acquire tabs through the internet was groundbreaking.

Guitar tab is essentially a shorthand method for transcribing the specific notes and chords of a song in a format that mimics the finger positions on a guitar’s fretboard. Instead of having to learn to read and translate formal sheet music, tablature is simplified. Each note is represented by a number that corresponds to a particular string and location on the fretboard. The beauty of guitar tab is that most anyone who plays guitar can transcribe a song into this format and share it with others as a teaching tool.

Naturally, it did not take long for the internet to respond in kind. Sites with collections of thousands of tabs populated the web seemingly overnight. To the surprise of no one, this also caught the attention of the music publishing industry. And their lawyers. Copyright law concerns threatened to shut down online guitar tab publishing in its entirety.

My question today is simple: while guitar tablature is likely a “derivative work” restricted by copyright law – should it be? Or should there be some sort of expressed fair use exception for guitar tablature? And if not, why not?

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