Over the past few weeks, there have been a number of news articles and stories about police officers playing popular music during a citizen/officer interaction that is being filmed by the citizen.  For example, Vice reported on a Beverly Hills police officer breaking out his phone and playing over a minute of Sublime’s “Santeria” when the officer discovered that his interaction with a well-known LA-area activist was being live-streamed by the citizen via Instagram.  Similarly, Mashable reported that an Alameda County Sheriff’s deputy played a Taylor Swift song during an encounter.  Why is this happening?  There seems to be a belief that police service, when paired with a musical interlude, will prevent a recording of the interaction from being posted on social media due to algorithms that detect and remove videos incorporating copyrighted music (among other types of content).

YouTube’s system for detecting and managing copyrighted content is called Content ID.  Copyright owners load their content into the Content ID system, and the system then creates a digital fingerprint for each piece of content and searches all of the videos within YouTube and new videos loaded into YouTube for a match.  If a match is found, the copyright owner is notified and can elect to either block the video (thus making it unavailable for viewing), or allow the video to stay up and monetize it with ad revenue going to the copyright owner.  While this election can be done on a case by case basis, most copyright owners set a default election and let the Content ID system do the rest.

If the Content ID system blocks a video, the owner of that video has the opportunity to address the block by either requesting the copyright owner to retract the block or by submitting a challenge to the block via the system.  If the copyright owner has Content ID operating via a default block setting, a retraction request or challenge will require manual interaction.  In both instances, the video owner will have the opportunity to explain why its video is not infringing the rights of the copyright holder.  If a block is challenged, the system will notify the copyright holder who must then either reinstate the block or release the video.  If the block is reinstated, the video owner is notified and can reinstate its challenge to the block.  At that point the copyright owner must then release the video or issue a takedown under the Digital Millennium Copyright Act (DMCA).

The filing of a counter notice under the DMCA is not to be taken lightly as it requires the video owner to declare, under penalty of perjury, that he or she has a good faith belief that its video was wrongfully removed. This would include a belief that the display or performance of the copyrighted material in the video was covered under fair use.

So would the inclusion of the Taylor Swift or Sublime song recorded in the police/civilian interaction videos mentioned above constitute fair use?   Under the Copyright Act, fair use is determined by looking at the following four factors: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.  The Copyright Act specifies certain categories of use that generally qualify as fair use; this includes use for news reporting purposes.  Although these videos very likely qualify as news reporting, they still would need to satisfy the fair use factors.

The purpose of the first fair use factor – a review of the purpose and character of the use – is to see whether the new work merely “supersedes the objects” of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is “transformative.”  Generally, the determination that a work is transformative is entitled to substantial weight in determining fair use.

Here, it seems fairly clear that the inclusion of the copyrighted song in these police/citizen interaction videos is transformative.  The purpose is not to recreate the copyrighted song but rather to document and report on a citizen/police interaction for the purpose of holding police actions up to public scrutiny (whether for good behavior or bad).

The “Set of Principles in Fair Use for Journalism” and the “Documentary Filmmaker Best Practices of Fair Use” both identify the incorporation of copyrighted material captured incidentally and fortuitously in the process of recording and disseminating news or recording something else as constituting fair use.  For journalists, the material captured incidentally in the course of reporting on specific events and activities “is an inseparable part of the reality they seek to portray.  Excluding (or drastically curtailing) the amount of such material contained in reporting would compromise the truth-telling mission of journalism.”  For documentary filmmakers, “the incidentally captured material is an integral part of the ordinary reality being documented.”

Would the situation be different if the above police officers played a recording of their own original music?  The outcome for the citizen would most likely be the same but the police officer could be in a worse position if he/she issued a takedown in such a situation for his/her own original music.  Pursuant to the 2015 case of Lenz v. Universal Music Group, when issuing a takedown notice under the DMCA the copyright holder must consider fair use.  The court held that, for the purposes of the DMCA, fair use is uniquely situated in copyright law so as to be treated differently than traditional affirmative defenses; fair use is “authorized by the law” and a copyright holder must consider the existence of fair use before sending a takedown notification under Section 512(c).  Not doing so could subject the copyright holder to potential liability for damages under Section 512(f). And while the fair use analysis does not need to be “intensive” and the court in Lenz seemed to be willing to give deference to the results of a copyright holder’s analysis, the court warned that a copyright holder who pays lip service to the consideration of fair use by claiming it formed a good faith belief when there is evidence to the contrary is still subject to Section 512(f) liability.