Two weeks ago, I commented that Google’s court victory over Viacom makes it open season on copyright holders. Their content can now be used for free with impunity, as long as the infringing content is removed upon proper notice.
Last week, Warner Music filed suit against a porn vendor, the RealityKings, for distributing videos containing unlicensed music, such as the songs “I Kissed A Girl” by Katy Perry and “Don’t Stop (Til You Get Enough)” by Michael Jackson. The Wall Street Journal provides a link to the full complaint (PDF).
The details are quite revealing. The complaint lists a handful of porn sites where more than 500 infringing videos are supposedly available. Editor of the Journal‘s Digits blog, Jennifer Valentino-DeVries, modestly says, “Digits did not visit the sites to check the accuracy of these allegations.”
The use of music in the offending videos is subtle. The RealityKings is not accused of using the music as slapped-on soundtracks to porn images. Rather, the music is playing in the background in videos filmed in “night clubs.” The Wall Street Journal quotes RealityKings’ attorney, Lawrence Walters, that the videos represent a “reality show in a dance club.”
Are these “club tapes” actually documentary films, and the music in them “ambient sound”? Rolling Stone reporter Daniel Kreps investigates this novel defense with yet another RealityKings lawyer, Marc Randazza, who is quoted as saying:
If someone can tell me how to shoot at a nightclub and police out the music in the background, I’m all ears.
On Gen – X ideas on IP, a blogger named Onkar claims that the RealityKings’ attorney “contends that the music was being used fairly as part of a commentary on popular night club culture.” While I will give the RealityKings bonus points for creativity, one has to wonder why it doesn’t just seek shelter in the safe-harbor provisions of the Digital Millennium Copyright Act.
By agreeing to remove videos containing copyrighted music, the RealityKings can claim the same protections as Google and YouTube. It can continue to profit from advertisers and subscribers attracted by copyrighted content by simply removing a small portion of that content — if and when someone complains.
Source: “Record Labels Sue Over Use of Music on Adult Sites,” The Wall Street Journal Digits Blog, 07/13/10
Source: “Labels Take on Porn Biz in Copyright Lawsuit,” Rolling Stone, 07/13/10
Source: “A lawsuit of Copyright Infringement against Porn websites,” Gen – X ideas on IP, 07/15/10
Image by machechyp, used under its Creative Commons license.